Nationstar Mortgage, LLC v. Estate of John R. Darling

• Court: Superior Court of Maine
• Decided: June 11, 2015
• Docket: CUMre-14-137
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION Docket No. RE-14-137

NATIONSTAR MORTGAGE LLC, STAlE Of MAiNE Plaintiff Cumbef1and. ~~ Cleft(s Mce v. JUN 12 2015

EST ATE OF JOHN R. DARLING, RECEIVE.D Defendant

At the trial in this foreclosure case on May 5, 2015, the court reserved decision on the

admissibility of several exhibits that are essential to plaintiffNationstar Mortgage LLC's right to

obtain a judgment of foreclosure. The parties have since briefed the admissibility issues in

question.

The original loan was made by Countrywide Bank FSB, which (according to plaintiff)

was merged into Bank of America. The original mortgage was granted to MERS as nominee, but

Nationstar is not relying on any purported assignment from MERS. Instead Nationstar is relying

on a November 7, 2012 assignment from the Bank of America to Nationstar.

The initial question is whether there is sufficient evidence that Countrywide Bank FSB

was merged into the Bank of America. On this issue Nationstar has offered Exhibits 9 and 9.1,

whose admissibility is objected to by the defendant, Estate of John R. Darling.

In the court's view the Estate is correct that neither Exhibit 9 nor 9.1 - a copy of a letter

on the stationery of the Comptroller of the Currency conditionally approving the merger of

Countrywide FSB into the Bank of America and a printout from the FDIC's internet site showing

that Countrywide Bank FSB was merged into Bank of America N.A. - are independently admissible. They would only qualify as an exception to hearsay as public records under

M.R.Evid. 803(8)(A), but they have not been authenticated by any witness with knowledge and

they are not self-authenticating because they have not been provided under seal. See M.R. Evid.

902(1).

The remaining question is whether the court can take judicial notice of the merger of

Countrywide Bank FSB into Bank of America. While it generally known that some Countrywide

entity was purchased by Bank of America, the court does not conclude that it is generally known

for purposes of M.R.Evid. 201(b)(l) that the purchase resulted in a merger or that the specific

entity involved was "Countrywide Bank FSB." 1

However, the court agrees that the merger of Countrywide Bank FSB into the Bank of

America is a fact that is capable of accurate and ready determination under M.R.Evid. 201(b)(2).

See, e.g., Nationstar's Ex. 9.1, which although not admissible demonstrates that the merger in

question is capable or accurate and ready determination.

The Estate also questions the admissibility of Exhibits 5 and 6. The first problem is that

those exhibits incorporate information that originated with the Bank of America because the

alleged default occurred before the note and mortgage were assigned to Nationstar. Nationstar's

witness had not worked for the Bank of America. Although he testified that he was familiar with

the Bank of America recordkeeping practices because the law firm he had previously worked for

had represented the Bank of America the court does not believe that he was ever asked whether

Bank of America records -like those that were incorporated into the Nationstar system in this

case - were created at or near the time in question by persons with knowledge.

1 There were other Countrywide entities, such as "Countrywide Home Loans Inc." See Jesinoski v. Countrywide Home Loans Inc., 135 S. Ct. 790 (2015).

2 Moreover, even if he had offered that testimony, he was not asked and did not testify

enough about his familiarity with Bank of America records so that he could have offered an

adequate foundation. Simply reciting that Bank of America records were incorporated into

Nationstar's record keeping system and that quality control checks were conducted is not

sufficient. The foundational evidence from a receiving entity's employee must demonstrate that

the employee "had sufficient knowledge of both businesses' regular practices" to demonstrate

the reliability of the information. Beneficial Maine Inc. v. Carter, 2011 ME 77 1i[ 13 (emphasis

added). 2

There is another problem as well. If the records had been admitted, they would have to

demonstrate at a minimum that a default in payment had occurred. The court has looked at

Exhibits 5 and 6 and cannot find a payment history from which it can be discerned that a default

occurred on August 1, 2009 as Nationstar claims.

The entry shall be:

Defendant's challenge to the admissibility of Exhibits 5 and 6 is upheld. Without those exhibits there is no insufficient evidence to prove that plaintiff is entitled to foreclose the mortgage at issue. Judgment for defendant. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).

Dated: June___!_!_, 2015

Thomas D. Warren Justice, Superior Court

2 In addition, one of the pages in Nationstar's Exhibit 5 bears the legend, "This worksheet is subject to attorney-client privilege and is not to be attached as an Exhibit to any document." Attaching this document to an exhibit despite this directive obviously waives any privilege, but this language undercuts the claim that the document is a business record.

3 CLERK OF COURTS Cumberland County 205 Newbury Street, Ground Floor Portland, ME04101 ~

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CLERK OF COURTS Cumberland County ,.,•J 205 Newbury Street, Ground Floor Portland, ME 041 01

PETER HATEM ESQ "Dz_~e~JG'I' t" 'Y"~ Ca>..o" ~e \ 258 US ROUTE ONE SCARBOROUGH ME 04074-8904

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