HSBC Bank, N.A. v. Byron

• Court: Superior Court of Maine
• Decided: January 26, 2015
• Docket: CUMre-14-236
• Status: Unpublished

Opinion

ENTERED FEB l g 1~~

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. RE-14-236

HSBC BANK N.A., as Trustee, -row- CANWJ- Dt-Jh-lS STATE Ol-JVIAINt: Plaintiff Cumberland. ss. Cterk's Office JAN ? ~ 2t?IJ v. ORDER RECEIVED MATTHEW BYRON,

Defendant

The above-captioned mortgage foreclosure case was tried to the court on January 23,

2015. The court heard evidence and reserved decision on three issues: (1) whether the note

(Plaintiffs Ex. 1) is admissible as a business record or otherwise; (2) whether the payment

record offered as Plaintiffs Ex. 5 is admissible as a business record; and (3) whether the Notice

of Default and Right to Cure sent in this case complied with 14 M.R.S. § 6111.

The court concludes that the note is admissible. If the note were offered solely as a

business record, there might be a question since it was transmitted to HSBC's servicer by the

original lender, and no witness was offered with the requisite familiarity with the prior lender's

business records. However, notes do not comfortably fit within the category of business records

since they do not exactly fit within the category of a "memorandum, report, record, or date

compilation" under M.R.Evid. 803(6).

Notes and the signatures thereon are self-authenticating under M.R.Evid. 902(9), and the

authenticity of a signature on a note is admitted unless the signature is specifically denied in the

pleadings. 11 M.R.S. §3-1308(1). In this case defendant Byron's answer admitted that he executed a note and did not specifically deny the signature although he denied that Ex. C to the

complaint was a true and accurate copy.

Given that the note is authenticated and the signature was admitted, the note is admissible

under Rule 902(9) § 3-1308(1) and as an admission under Rule 801(d)(2) even if not admissible

as a business record. 1

The court does not find that the payment record (Ex. 5) relied upon by plaintiff to

establish that a default occurred and the amounts due is admissible. No witness was presented

who had the requisite qualifications to establish that the entries dating from the time when the

default allegedly occurred were business records. Beneficial Maine Inc. v. Carter, 2011 ME 77

~~ 13-16, 25 A.3d 96. Although the Carter decision cites Northeast Bank & Trust Co. v. Soley,

481 A.2d 1123, 1126-27 (Me. 1984), for the proposition that an employee of a receiving entity

may be a qualified witness to testify as to the admissibility of a prior servicer's business records

if those records were integrated into the receiving entity's records, 2011 ME 77 ~ 13, the Law

Court in Carter also indicated that the employee of the receiving entity must have sufficient

knowledge of both businesses' regular practices to demonstrate the reliability and

trustworthiness of the information in question. !d. ~ 13; see~~ 15-16. That knowledge is missing

in this case.

Because the absence of an admissible business record to establish the default on which

plaintiff relies in this case, iudgment shall enter for defendant. As a result, the court does not

need to reach the issue of whether plaintiffs Exhibit 4 complies with 14 M.R.S. § 6111. In the

alternative, if the court were to reach that issue, it appears that the notice is at best ambiguous as

1 The alternative, that someone would have to prove that the note was made at or near the time by a person with knowledge, would run counter to the entire concept of a negotiable instrument.

2 to the amount necessary to be paid by the cure date, which would not constitute strict compliance

with § 6111 _2 See Bank ofAmerica v. Greenleaf, 2014 ME 89 ~~ 29-31.

The entry shall be:

Judgment for defendant. The clerk is directed to incorporate this order in the docket by

reference pursuant to Rule 79(a).

Dated: January 2~ 2015

'-=kL, / Thomas D. Warren Justice, Superior Court

2 On the first page the notice sets forth a payment amount to avoid default, "together with payments which may subsequently accrue, on or before the Cure Date listed below." On the second page the notice states: Additional payments may become due between the date of this letter and the Cure Date. If you wish to cure the default after those payments become due, they should be added to the Amount Required to Cure. Fees and other charges may continue to be assessed to your account after the date of this letter .... In addition, there may be other fees, escrow advances or corporate advances that SPS paid on your behalf or advances to your account not itemized in this letter. While these amounts are not required to cure the payment default, you still owe these amounts.

(emphasis added). From this language it is not possible to discern which additional payments, fees, and charges were required to be paid to cure the default and which were not required to cure the default.

3 CLERK OF COURTS Cumberla('ld County 205 Newbury Street, Ground Ftoor Portland, ME 041 01

JENAI CORMIER ESQ . DOON~ LONGORIA & GRAVES 71~\ry\ ;ws ~t)o\ re7 100 CUMMINGS CENTER SUITE 225D BEVERLY MA 01915

~ ''· .. ~

CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME 04101

JOHN CLIFFORD ESQ CLIFFORD & GOLDEN PA PO BOX 368 1:»le;JC<.. '~'- -~ -T N-\\o\ (\~7 LISBON FALLS ME 04252