The Bank of New York Mellon v. Danielle Shone

2020 ME 122, 239 A.3d 671

• Court: Supreme Judicial Court of Maine
• Decided: October 22, 2020
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2020 ME 122 Docket: Cum-19-48 Argued: March 2, 2020 Decided: October 22, 2020

Panel: MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ., and HJELM and CLIFFORD, A.R.JJ.* Majority: MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ., and CLIFFORD, A.R.J. Dissent: HJELM, A.R.J.

THE BANK OF NEW YORK MELLON

v.

DANIELLE SHONE et al.

HORTON, J.

[¶1] In this appeal from a residential foreclosure judgment of the

Superior Court (Cumberland County, Warren, J.), we are called upon to clarify

the criteria under the business record exception to the hearsay rule for

admitting in evidence records that a business has obtained from another entity

and integrated into its own records or operations. See M.R. Evid. 803(6). Our

decisions since 1984 have endorsed two conflicting interpretations of

Rule 803(6) as it relates to integrated business records, and this case affords an

* Although not present at oral argument, Active Retired Justice Clifford participated in the development of this opinion. See M.R. App. P. 12(a)(2) (“A qualified Justice may participate in a decision even though not present at oral argument.”). 2

opportunity to resolve the conflict. We hereby reaffirm the interpretation first

set forth in our 1984 decision in Northeast Bank & Trust Co. v. Soley,

481 A.2d 1123, 1127 (Me. 1984), which is consistent with the widely accepted

interpretation of the identical federal rule, see U.S. Bank Tr., N.A. v. Jones,

925 F.3d 534, 537 (1st Cir. 2019). We conclude that a record that one business

has received from another is admissible under Rule 803(6) without testimony

about the practices of the business that created the record, provided, first, that

the proponent of the evidence establishes that the receiving business has

integrated the record into its own records, has verified or otherwise

established the accuracy of the contents of the record, and has relied on the

record in the conduct of its operations, and, second, that the opponent of

admission has not shown that the record is nonetheless not sufficiently

trustworthy to be admitted.

I. BACKGROUND AND PROCEDURAL HISTORY

[¶2] We draw the following brief account of this case from the procedural

record and the evidence offered or referenced at trial.

[¶3] In 2015, The Bank of New York Mellon commenced this foreclosure

action against Danielle Shone and Michael Buck. The Bank’s complaint alleged

that in 2005, Buck had taken out a loan from America’s Wholesale Lender and 3

that, to secure Buck’s performance pursuant to the promissory note for that

loan, Shone and Buck had executed a mortgage on a Portland property they

owned. Although the original lender and mortgagee were third-party entities,

the Bank alleged that it ultimately acquired the note and mortgage. The Bank

also alleged that Buck had stopped making payments on the loan in 2008.

[¶4] The court held a bench trial on the complaint in October 2018.

There, the Bank offered an exhibit containing a notice of default and right to

cure purportedly sent to Shone and Buck by the law firm retained by Bayview

Loan Servicing, which serviced the note and mortgage for the Bank, along with

a purported U.S. Postal Service certificate of mailing. The Bank first attempted

to qualify the exhibit for admission in evidence by calling an employee of the

law firm to testify about that office’s procedures for creating and mailing

notices of default, but the court barred that testimony because the Bank’s

witness list had not properly identified the prospective witness by name or

capacity. The Bank next attempted to submit an affidavit from a law firm

employee as a mechanism for admitting the notice itself pursuant to M.R. Evid.

902(11). The court did not allow the Bank to use that procedure because it had 4

not, as required by the rule, provided Shone and Buck with reasonable advance

notice that it would seek to do so.1

[¶5] The Bank then attempted to present a testimonial foundation for

the exhibit through James D’Orlando, a litigation manager employed by

Bayview. After D’Orlando testified, the court excluded the notice from evidence

because the Bank failed to present evidence that D’Orlando had personal

knowledge about the law firm’s practices relating to the creation and mailing of

notices of default and right to cure. Because the Bank was therefore unable to

prove that it had satisfied the notice requirements imposed by 14 M.R.S. § 6111

(2018),2 the court entered judgment for Shone and Buck.3 After the court

1 Neither of those rulings is at issue on this appeal. 2This statute was recently amended to change the procedure for providing the notice. See P.L. 2019, ch. 361 §§ 1-2 (effective Sept. 19, 2019) (codified at 14 M.R.S. § 6111(2-A) (2020)). 3Although, in the end, the trial in this case was limited to the Bank’s attempt to enter in evidence the notice of default and right to cure, the Bank does not suffer the same fate as the plaintiff-mortgagee in Wilmington Savings Fund Society, FSB v. Abildgaard, 2020 ME 48, 229 A.3d 789. There, after the court excluded a similar notice from evidence but before the plaintiff presented evidence or an offer of proof that covered the remaining elements of a foreclosure case, the plaintiff voluntarily rested its case-in-chief, and the court entered judgment for the defendant. Id. ¶ 4. On appeal, we held that as the result of the plaintiff’s choice to rest without presenting evidence that could satisfy all elements of its case, we were required to affirm the adverse judgment irrespective of whether the court’s evidentiary ruling was erroneous. Id. ¶ 5.

Here, in contrast, at Shone and Buck’s own suggestion, the parties and the court agreed that, as the first step in the trial, because of the potentially dispositive nature of that issue, the Bank would present evidence to try to establish that the notice was an admissible business record. After excluding the document following D’Orlando’s testimony but without the Bank having rested its case, the court proceeded to enter judgment against the Bank. Even though the Bank did not make any offer of proof as to the remaining elements of its claim, it is clear that the Bank did not proceed in a way that forfeited its argument on appeal as the mortgagee did in Abildgaard. Thus, if on remand the 5

denied the Bank’s motion to alter or amend the judgment or for a new trial, the

Bank appealed to us. See 14 M.R.S. § 1851 (2020); M.R. App. P. 2A.

[¶6] After this case was initially briefed on appeal, we invited the parties

and any amici to file additional briefs on the question of whether we should

“consider adjusting application of . . . [Maine Rule of Evidence] 803(6), to track

application of [Federal Rule of Evidence] 803(6) as addressed in U.S. Bank

Trust, N.A. v. Jones, 925 F.3d 534 (1st Cir. 2019).” In addition to briefs filed by

the parties, we received amici curiae briefs filed by the Federal Housing Finance

Agency; Full Disclosure, LLC; Gerald F. Petruccelli, Esq.; Maine Attorneys Saving

Homes; the Maine Bankers Association; the Maine Credit Union League; Maine

Equal Justice; the National Association of Consumer Advocates et al.; the

National Consumer Law Center; PHH Mortgage Corporation; and Pine Tree

Legal Assistance, Inc.

II. DISCUSSION

[¶7] The pivotal issue here centers on the foundational showing that

must be made to admit an integrated business record—that is, a record created

by one entity and later integrated into the records of a second, separate entity.

trial court decides to admit the exhibit at issue, the court likely would need to reopen the record for a full trial on all issues. 6

[¶8] The traditional method of admitting business records in evidence

pursuant to Rule 803(6) is through the testimony of a witness with personal

knowledge of the practices of the business or other entity that created the

record. The integrated records method is a different method that applies when

the record has, in effect, become a business record of a business other than the

business that created the record.4 See MRT Constr. v. Hardrives, Inc.,

158 F.3d 478, 483 (9th Cir. 1998) (“[R]ecords a business receives from others

Under both the traditional approach and the integrated records approach, the proponent of 4

admitting a business record must establish the following:

(A) The record was made at or near the time by—or from information transmitted by—someone with knowledge; (B) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) Making the record was a regular practice of that activity.

M.R. Evid. 803(6)(A)-(C).

Under both approaches, the proponent of an exhibit may satisfy these criteria through direct evidence of the regular practices of either the business that created the record or a business that has integrated, verified, and relied upon a record received from another business. In each instance, proof of the business’s regular practices can constitute circumstantial evidence of trustworthiness sufficient to justify the inference that the record was created in a manner that satisfies the Rule 803(6) criteria. See Boca Investerings P’ship v. United States, 128 F. Supp. 2d 16, 18 (D.D.C. 2000) (“The theory [underlying Federal Rule 803(6)] is that if a statement is recorded in the ordinary course of a regularly conducted activity, and if it is the regular practice of the business to record such a statement, there is a sufficiently high degree of trustworthiness inherent in the document to ensure its truthfulness, making cross-examination of the person who prepared the document less necessary.”); U.S. Bank, N.A. v. Christmas, No. 26695, 2016 Ohio App. LEXIS 205, at *10 (Ohio Ct. App. Jan. 22, 2016), vacated on other grounds, 54 N.E. 3d 1267 (Ohio 2016) (“[A] court may admit a document as a business record even when the proffering party is not the maker of the document, if the other requirements of [Rule 803(6)] are met and the circumstances suggest that the record is trustworthy. Trustworthiness of a record is suggested by the profferer’s incorporation into its own records and reliance on it.”) (citations omitted). 7

are admissible under Federal Rule of Evidence 803(6) when those records are

kept in the regular course of that business, relied upon by that business, and

where that business has a substantial interest in the accuracy of the records.”).

Thus, the integrated records approach eliminates the need for testimony about

the practices of the entity that created the record and shifts the focus to the

record’s status within the receiving entity.

[¶9] Evidence of the receiving entity’s reliance on the record in the

regular course of its business is important because a business’s reliance on

information in a record it did not create helps demonstrate the trustworthiness

of the record. Compare MRT, 158 F.3d at 483 (holding that invoices

incorporated into a company’s records were admissible under Rule 803(6) to

establish amounts paid because the company relied upon the amounts shown

in the invoices), with N.L.R.B. v. First Termite Control Co., 646 F.2d 424, 429-30

(9th Cir. 1981) (concluding that third-party records were not admissible under

Rule 803(6) to prove the origin of lumber because the recipient business did

not rely on the records to determine that origin).

[¶10] On the other hand, “mere possession or ‘custody’ of records . . .

does not qualify employees of the possessing party to lay the requisite

foundation, and reliance by the organization on records created by others, 8

although an important part of establishing trustworthiness, without more is not

sufficient.” 2 Kenneth S. Broun et al., McCormick on Evidence § 292, at 476-77

(Robert P. Mosteller ed., 8th ed. 2020) (footnote omitted). When “the business

offering the records of another has made an independent check of the records,

has integrated them into their own business operation in a way that establishes

trustworthiness or contains other assurances of trustworthiness, or can

establish accuracy by other means, the necessary foundation may be

established.” Id. at 477-48 (footnotes omitted); see also United States v.

Sokolow, 91 F.3d 396, 403 (3d Cir. 1996) (stating that the business records

exception may apply to records obtained from others if the receiving business

obtains “adequate verification or other assurance of accuracy” (quotation

marks omitted)).

[¶11] The verification element of the integrated records approach

requires simply that the business receiving a record establish or confirm the

accuracy of the record in some way. See McCormick on Evidence § 292, at

477-78. For example, the recipient business may check the record for accuracy

before integrating and relying upon it in its own operations. See U.S. Bank Trust,

N.A. v. Jones, 330 F. Supp. 3d 530, 543 (D. Me. 2018), aff’d 925 F.3d 534 (1st Cir.

2019) (noting that the loan servicer “took steps to review the previous 9

servicer’s records in a way that assured itself of the accuracy of the records

during the boarding process before placing its own financial interest at stake

by relying on those records”). Another means of verification could be for the

receiving business to integrate and use the record in the course of its own

operations in a manner that confirms the accuracy of the record. See United

States v. Ullrich, 580 F.2d 765, 771-72 (5th Cir. 1978) (holding that the vehicle

inventory schedule prepared by the manufacturer and received by the dealer

was integrated and used in the dealer’s daily operations in a manner that

confirmed the accuracy of the schedule).

[¶12] Regardless of how verification occurs, “[t]he custodian company’s

independent check of the documents acts as a proxy for the requirement that

the records have been prepared by someone with personal knowledge of the

recorded events. By verifying the documents, the custodian company is in

essence acquiring personal knowledge of the recorded events, and thereby

effectively adopting the entries in the documents as his own.” Air Land

Forwarders, Inc. v. United States, 172 F.3d 1338, 1348 (Fed. Cir. 1999) (Bryson,

J., dissenting).

[¶13] Multiple federal circuit courts and numerous other states have

upheld the admission of integrated business records upon a showing of 10

verification and reliance on the part of the receiving business, without the need

for testimony from the originating business. See, e.g., United States v. Adefehinti,

510 F.3d 319, 325-26 (D.C. Cir. 2007); Air Land Forwarders, Inc., 172 F.3d at

1341-42; United States v. Childs, 5 F.3d 1328, 1334-36 (9th Cir. 1993); United

States v. Doe, 960 F.2d 221, 223 (1st Cir. 1992); United States v. Jakobetz,

955 F.2d 786, 801 (2d Cir. 1992); United States v. Parker, 749 F.2d 628, 633

(11th Cir. 1984); Ullrich, 580 F.2d at 772; United States v. Carranco,

551 F.2d 1197, 1200 (10th Cir. 1977); see also State v. Fitzwater, 227 P.3d 520,

531-36 (Haw. 2010); Pizza Corner, Inc. v. C.F.L. Transp., Inc., 792 N.W.2d 911,

913-14 (N.D. 2010).

[¶14] We adopted the federal courts’ integrated records approach to

Rule 803(6) in Northeast Bank & Trust Co. v. Soley, 481 A.2d 1123, 1127

(Me. 1984), a decision that has never been overruled or questioned and that is

still good law.

[¶15] In Soley, we decided that the plaintiff bank’s practice of obtaining

prime rate information from another bank, integrating the information into its

own records, and relying on the information in its operations was sufficient to

support the admissibility of that information for its truth, without any 11

testimony by a witness with personal knowledge of the sending bank’s

practices in developing the information:

Here, the information was transmitted by an employee of the banking institution which was the source of that information, which information was then integrated into the plaintiff’s records and relied upon by the plaintiff in its own business operations. We hold that under these circumstances the schedule satisfied the requirements of M.R. Evid. 803(6) and was properly admitted.

481 A.2d at 1127.

[¶16] The Soley court emphasized the fact that the receiving entity had

relied upon the integrated records in its own business operations. See id. In

extending the business records exception to include business records created

by someone “not within the [proponent’s] organization,” id, we explained that

the regular indicia of reliability had been demonstrated because the bank had

an “obvious business incentive in assuring that this employee [of the

transmitting bank who reported the prime rate to the receiving bank] would

have personal knowledge of changes in the prime rate and would report those

changes accurately.” Id.

[¶17] Our endorsement of the integrated records approach in Soley

rested solidly on federal precedent. See id. (citing In re Ollag Constr. Equip.

Corp., 665 F.2d 43, 46 (2d Cir. 1981) (emphasizing the receiving business’s

regular use of and reliance on integrated records); Ullrich, 580 F.2d at 772 12

(upholding the admission of “records transmitted by persons with knowledge

and then confirmed and used in the regular course of the dealership’s

business”)). Our holding in Soley also relied upon the factors confirming

trustworthiness enumerated in the Notes of the Advisory Committee for the

Federal Rules of Evidence). 481 A.2d at 1127 n.3.

[¶18] Eight years after our Soley decision, we confirmed that holding by

noting that “we have recognized that in certain circumstances business records

may include information prepared outside the business.” Leen Co. v. Web Elec.,

Inc., 611 A.2d 83, 83-84 (Me. 1992). However, in Leen we upheld the trial

court’s exclusion of outside records, pointing out that such documents “are

admissible only if they contain the indicia of reliability that form the basis of

the business record exception.” Id. at 84 (quotation marks omitted). We

specifically discussed how the proponent of the records had failed to

demonstrate that reliability:

Here, Web sought to introduce through the testimony of its own agent records of business correspondence prepared by others, without providing any foundation to suggest that the records were prepared by a person with knowledge of the cause of the delays or were created in the ordinary course of business. The fact that a document is received in the ordinary course of business does not alone satisfy the foundational requirements of rule 803(6).

Id. at 84. 13

[¶19] However, we adopted a different view of the integrated records

approach in a more recent line of cases, beginning with Beneficial Maine Inc. v.

Carter, decided twenty-seven years after Soley, and nineteen years after Leen.5

2011 ME 77, ¶ 13, 25 A.3d 96. Our decision in Carter endorsed the integrated

records approach, citing Soley:

The affiant whose statements are offered to establish the admissibility of a business record on summary judgment need not be an employee of the record’s creator. See, e.g., Ne. Bank & Trust Co. v. Soley, 481 A.2d 1123, 1127 (Me. 1984). For instance, if the records were received and integrated into another business’s records and were relied upon in that business’s day-to-day operations, an employee of the receiving business may be a qualified witness.

Id. (citations omitted).

[¶20] Despite its reliance on Soley, our decision in Carter departed from

Soley by requiring that the qualified witness have personal knowledge of the

practices of both the business that created the record and the business that

received it, a requirement that negates the entire point of the integrated

5 The dissent suggests, Dissenting Opinion ¶ 38 n.14, that we arguably began to depart from our holding in Soley in State v. Radley, in which we decided that the trial court erred in admitting business records of one organization “through the testimony of a witness employed by an entirely different organization, simply because her employer relied on that organization’s records in its own business dealings.” 2002 ME 150, ¶ 16, 804 A.2d 1127. We distinguished the situation in Radley from that in Soley, without overruling or questioning Soley. Id. ¶ 17 n.2. What Radley stands for, in keeping with Soley and our decision today, is that reliance by one business upon the records of another, without verification or corroboration of the accuracy of the records, is insufficient to support admission under the integrated records approach. 14

records approach we adopted in Soley. See id. Even so, our Carter decision

contains no indication that we intended to depart from our holding in Soley.

Also, the underlying facts of Carter did not even involve an integrated records

issue because there was no evidence that the entity that created the records in

question had sent them to another entity. Carter, 2011 ME 77, ¶¶ 2-8,

25 A.3d 96. Instead, Carter stands for the proposition that an entity’s business

records cannot be admitted based on the testimony of a witness who has no

personal knowledge of the practices of the entity.6

[¶21] In three decisions since Carter, we continued to depart from our

holding in Soley, still without saying so or explaining why, by maintaining the

requirement that the proponent of admitting an integrated business record

present foundational testimony about the practices of the business that created

the record. See M & T Bank v. Plaisted, 2018 ME 121, ¶¶ 24, 31, 192 A.3d 601;

Deutsche Bank Nat’l Tr. Co. v. Eddins, 2018 ME 47, ¶ 14, 182 A.3d 1241; KeyBank

Nat’l Ass’n v. Est. of Quint, 2017 ME 237, ¶ 13, 176 A.3d 717.

6In Beneficial Maine Inc. v. Carter, Beneficial was the plaintiff in a mortgage foreclosure case. 2011 ME 77, ¶ 2, 25 A.3d 96. The qualifying witness, who was the affiant in the motion for summary judgment, was an employee of HSBC, an entity that serviced the loan. Id. ¶ 3. The witness attempted to lay the proper foundation for the introduction of Beneficial’s records, not HSBC records that contained integrated records from Beneficial. Id. ¶ 4. The Carter court held that the affiant did not have first-hand information regarding Beneficial’s records and therefore was not able to lay the proper foundation pursuant to Rule 803(6). Id. ¶¶ 15-17. 15

[¶22] Although these decisions postdate Soley and Leen, none of them

overrules or distinguishes Soley or Leen, or even acknowledges any substantive

departure from Soley’s holding. Indeed, two of the four decisions nominally rely

on Soley—the most recent of the four decisions cites to Soley, as did Carter. See

Plaisted, 2018 ME 121, ¶ 31 n.10.

[¶23] In other words, Soley and Leen remain good law. Thus, although

the doctrine of stare decisis supports following Carter,7 the case for reaffirming

our holding in Soley also rests upon stare decisis. In that sense, the question

before us is less a matter of honoring stare decisis than a matter of resolving the

sharp and hitherto unexplained conflict between the two interpretations of

Rule 803(6) that we have endorsed at various times since 1984.

[¶24] Rule 803(6) was restyled in 2014 and then amended in 2018 to

align with its federal counterpart. See M.R. Evid. 803 Advisory Committee

7 The dissent advances several objections to our endorsement of the integrated records approach, including an objection based on stare decisis. Dissenting Opinion ¶¶ 54-61. Given that Soley predates Carter and has never been questioned or overruled, the integrated records approach has its own foundation in stare decisis. The dissent also contends that the integrated records approach rewrites Rule 803(6). Dissenting Opinion ¶¶ 32, 65. But the traditional approach and the integrated records approach are two similar evidentiary paths to proving the same Rule 803(6) criteria. Both approaches call for first-hand testimony about the practices of a business—either the business that created the record or the business that received the record—based upon which it can be inferred, as a matter of circumstantial evidence, that the record in question meets the Rule 803(6) criteria. Based on its view that we are rewriting the rule, the dissent also contends that we should be engaging in rulemaking as the Supreme Judicial Court rather than opining as the Law Court. Dissenting Opinion ¶¶ 65-67. The contention would be well-taken if we were adopting a new interpretation of the rule, but we are simply reaffirming an interpretation of the rule that we first endorsed thirty-six years ago. 16

Note—August 2018; M.R. Evid 803 Maine Restyling Note—November 2014.

The Advisory Committee Notes accompanying both the 2014 restyling of

Rule 803(6) and the 2018 amendment indicate that the changes in the language

of the rule were not intended to make any substantive change in the rule, and

therefore neither of these changes to Rule 803(6) addressed or resolved the

conflict between the Soley and Carter lines of cases.

[¶25] As our reliance in Soley on federal authority illustrates, we

regularly look to federal analysis when interpreting our own identical or nearly

identical rules. See, e.g., State v. Gorman, 2004 ME 90, ¶¶ 30-31, 854 A.2d 1164

(comparing M.R. Evid. Rule 803(5) with Fed. R. Evid. 803(5)); State v. Discher,

597 A.2d 1336, 1342 (Me. 1991) (same). Reaffirming Soley aligns our

interpretation of Maine Rule of Evidence 803(6) with the widely accepted

interpretation that federal courts apply to the identical federal rule. It

promotes a uniformity of application of the business records exception in

Maine’s federal and state courts, and—in that sense—discourages

forum-shopping.

[¶26] The opposition of the appellees and some of the amici to the Jones

and Soley integrated records approach appears grounded primarily in their

view that the recordkeeping practices of mortgage loan servicers such as 17

Bayview are too unreliable to justify the admission of a record that one servicer

has received from a prior servicer or other entity without testimony based on

personal knowledge regarding the practices and procedures of the business

that created the record. The lack of reliability of records submitted in

foreclosure cases by some residential mortgage lenders or loan servicers has

been amply documented. See, e.g., HSBC Mortg. Servs., Inc. v. Murphy,

2011 ME 59, ¶ 15 n.8, 19 A.3d 815 (noting “the recurring problem of lenders

submitting unreliable affidavits and documents in residential foreclosure

proceedings”).

[¶27] Still, the recordkeeping shortcomings of some members of a

particular business sector should not drive our interpretation of a rule of

evidence that applies to the records of all businesses and, more broadly, as

Rule 803(6)(B) indicates, to the records of any “organization, occupation, or

calling.” If the records kept by mortgage lenders or loan servicers in particular

are categorically unreliable, more stringent proof requirements might be

appropriate.8 But there is no good reason to require in every case testimony

based on personal knowledge of the practices of the business that created a

8 For example, the Maine Legislature has enacted special requirements for collection actions brought by consumer debt buyers. See 32 M.R.S. § 11019 (2020); see also P.L. 2017, ch. 216, § 6 (effective Nov. 1, 2017). 18

record when the business that received the record can meet the integration,

verification, and reliance criteria of the integrated records approach.

[¶28] Moreover, the federal and Maine versions of Rule 803(6) guard

against the admission of untrustworthy integrated business records by

precluding admission, even when the proponent makes an initial showing of

integration, verification, and reliance, if the opposing party “show[s] that the

source of information or the method or circumstances of preparation indicate

a lack of trustworthiness.” Fed. R. Evid. 803(6)(E); M.R. Evid. 803(6)(E). Lastly,

the integrated records approach is only a means of laying a foundation for the

admission in evidence of a record; it does not purport to define or establish the

weight to be given to the record.

[¶29] In this case, the trial court’s exclusion of the exhibit at issue was

consistent with the Carter line of cases, because the Bank did not present any

first-hand testimony about the practices of the law firm that purportedly

created and mailed the notices of default.

[¶30] Because we today reaffirm the integrated records approach that

we adopted in Soley, under which such foundational evidence is unnecessary,

we must vacate the judgment and remand the matter for the trial court to

determine, based on the current record, whether the Bank’s exhibit, which 19

includes the two purported notices of default and a separate purported U.S.

Postal Service certificate of mailing, meets the integration, verification, and

reliance criteria for admission in evidence as an integrated record.9

The entry is:

Judgment vacated. Remanded for further proceedings consistent with this opinion.

HJELM, A.R.J., dissenting.

[¶31] The Court today remands this case for the trial court to reconsider

its ruling that excluded from evidence an integrated business record critical to

the Bank of New York Mellon’s foreclosure claim, with the new determination

to be based not on Maine law but on a materially different standard for

admissibility that is used in other jurisdictions, notably a number of federal

courts.

9 When admission of evidence under the business records exception to the hearsay rule is challenged, “‘we review a trial court’s foundational findings to support admissibility for clear error and its ultimate determination of admissibility for an abuse of discretion.’” Am. Express Bank, FSB v. Deering, 2016 ME 117, ¶ 12, 145 A.3d 551 (quoting State v. Abdi, 2015 ME 23, ¶ 16, 112 A.3d 360). Thus, the determination of whether some or all of the materials contained in the exhibit at issue is admissible based on the current record should, at least initially, be made by the trial court. Nothing in this opinion should be taken to imply a view regarding whether the exhibit should be admitted as an integrated record. In light of our adoption of a different evidentiary standard than was argued at trial, the court may reopen the record to allow further argument by the parties. If the court decides to admit the exhibit, the trial may resume on all issues in contention. 20

[¶32] To arrive at its conclusion, the Court errs in two fundamental ways.

The first is analytical. As the Court acknowledges, the trial court correctly

applied Maine law that governs the admissibility of business records. See M.R.

Evid. 803(6). By nonetheless vacating the judgment, however, the Court

derogates from principles of stare decisis and improperly dispenses with that

well-established Maine jurisprudence—jurisprudence that we have developed

over nearly the past decade and that is entirely consonant with Rule 803(6).

The second error is structural. Because the Court’s reasoning is not supported

by a sound jurisprudential rationale, the Court must be seen as rewriting

Rule 803(6), thereby improperly blending its nonadjudicatory authority to

promulgate rules in its capacity as the Maine Supreme Judicial Court with its

adjudicatory authority, when sitting as the Law Court, to consider appeals. For

these reasons, I respectfully dissent.

[¶33] In this opinion, I will first review Maine’s governing law that the

Court now abandons and discuss the reasons why that law should remain

controlling authority in Maine courts. Second, I will explain the basis for my

conclusion that the remaining rationale for the Court’s decision wrongly strays

into its discrete regulatory rulemaking function. 21

A. Maine’s Law on Integrated Business Records

1. Maine’s Case Law

[¶34] The essential issue presented in this case focuses on the showing

that, pursuant to Maine Rule of Evidence 803(6),10 must be made by the

proponent of an integrated business record—a document created, maintained,

and handled by one entity and then transferred to and held by a second entity—

for the record to be admitted in evidence. The particular record at issue here

is a notice of default and right to cure purportedly mailed by the law firm

engaged by the mortgage servicer to the mortgagors, Danielle Shone and

Michael Buck.

10 In its current formulation, Maine Rule of Evidence 803(6) creates an exception to the general

exclusion of hearsay evidence and allows the court to admit a business record, i.e., a “[r]ecord[] of a regularly conducted activity,” if the following criteria are satisfied:

(A) The record was made at or near the time by—or from information transmitted by—someone with knowledge;

(B) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) Making the record was a regular practice of that activity;

(D) All these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11), Rule 902(12) or with a statute permitting certification; and

(E) The opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. 22

[¶35] In its opinion, the Court states that an integrated business record

is admissible pursuant to Rule 803(6) if the proponent presents, as a

foundational predicate, testimony from a witness, who need not have personal

knowledge of the originating entity’s record-related practices, that the

receiving entity merely integrated, verified, and relied on the document.

Court’s Opinion ¶ 30. Over the course of nearly the past decade, however, we

have consistently and explicitly articulated two categorical foundational

elements for an integrated business record, which, as I will discuss below, are

very different from the elements that the Court prescribes today. First, our case

law establishes that the proponent of an integrated business record must

demonstrate that the record-related protocols of both the originating and

receiving entities meet the requirements of Rule 803(6)(A)-(C), which set

specific evidentiary standards for when the document must have been created,

how it was maintained, and whether those business practices were routine.

And second, to be a “qualified witness” within the meaning of Rule 803(6)(D),

the foundational witness must have personal knowledge about those protocols

maintained by each entity.

[¶36] It is manifest that the standard that the Court now adopts is

materially different from the criteria prescribed in controlling Maine case law. 23

A review of those cases demonstrates that our articulation of the evidentiary

standards was not, as the Court seems to suggest, unintentional or inadvertent.

Indeed, the clear and explicit language we used to frame those requirements

demonstrates that, in those cases, we meant what we said.

[¶37] The line of cases defining our current jurisprudence began no later

than our 2011 opinion in Beneficial Maine Inc. v. Carter, 2011 ME 77, 25 A.3d

96,11 which addressed Rule 803(6) in its then-existing formulation.12 There, we

stated that for an integrated business record to be admissible, the proponent

11 The articulation of our current standard arguably had its genesis even earlier, in State v. Radley, where we stated, “To permit the State to proffer the [integrated business] records . . . through the testimony of a witness employed by an entirely different organization, simply because her employer relied on that organization’s records in its own business dealings, is wholly unsupported by rule or law.” 2002 ME 150, ¶ 16, 804 A.2d 1127. We further stated that, instead, the proponent must demonstrate through a knowledgeable witness that the upstream entity created, maintained, and transmitted the record in a way that satisfied the requirements now found in Rule 803(6)(A)-(C). Radley, 2002 ME 150, ¶ 16, 804 A.2d 1127. These are the criteria for the admissibility of an integrated business record that we again articulated beginning nine years later in Beneficial Maine Inc. v. Carter, 2011 ME 77, 25 A.3d 96. Despite the analysis contained in Radley, however, for the reasons I discuss below, see infra n.14, that opinion may not constitute a full and clear demarcation from the evidentiary standard described in Northeast Bank & Trust Co. v. Soley, 481 A.2d 1123, 1127 (Me. 1984)—the standard to which the Court now returns. Rather, that change in our law was more definitively established in Carter. 12 The Rule then stated in pertinent part that a business record was admissible if the record was

“made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business, and if it was the regular practice of that business to make the . . . record . . . , all as shown by the testimony of the custodian or other qualified witness, . . . unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.”

Carter, 2011 ME 77, ¶ 12 n.5, 25 A.3d 96 (quoting M.R. Evid. 803(6) (Tower 2010)). As I discuss in the text, infra ¶¶ 39, 48-51, the current version of the Rule is substantively the same as the formulation of the Rule discussed in Carter. 24

must demonstrate that the originating entity routinely used specified protocols

to create the business record, maintain it, and transmit it to the receiving entity,

all in a way that, in the end, is sufficient to allow the receiving entity to rely on

it. Id. ¶¶ 13-14. Thus, although, as the Court states today, Court’s Opinion ¶ 9,

reliability generally is germane to the evidentiary framework, there is more to

it than that because, as we stated in Carter and subsequent cases described

below, the rule still requires foundational evidence of certain specific historical

circumstances, which could then form the basis to allow some resulting

assurance that the information in the record is reliable. We also stated in Carter

that although the foundational witness need not be an employee of the

originating entity, that witness must—as the rule explicitly requires—be

“qualified,” which means that the witness must “demonstrate knowledge” of the

originating entity’s specific record-related practices now described in

Rule 803(6)(A)-(C).13 2011 ME 77, ¶¶ 13-14, 25 A.3d 96.

The Court asserts that, because Carter stated that the witness need not be an employee of the 13

originating entity, our opinion in that case “endorsed the integrated records approach” that had been set out in Soley, 481 A.2d at 1127. Court’s Opinion ¶ 19. For the reasons I explain in the text, however, Carter superseded Soley by articulating materially different criteria for an integrated business record to be admissible. Additionally, we have never held that, to be “qualified” within the meaning of Rule 803(6)(D), the foundational witness must be an employee of the entity whose record-related practices are being described in that witness’s testimony. The test for whether a witness is “qualified” rests on the nature and source of the witness’s knowledge, not the witness’s employment or capacity. See M & T Bank v. Plaisted, 2018 ME 121, ¶¶ 7-12, 24, 192 A.3d 601; Deutsche Bank Nat’l Tr. Co. v. Eddins, 2018 ME 47, ¶ 12, 182 A.3d 1241; KeyBank Nat’l Ass’n v. Est. of Quint, 2017 ME 237, 25

[¶38] As the Court correctly notes, Court’s Opinion ¶ 20, those standards

heightened the requirements for the admissibility of integrated business

records as set out in our previous case law, which had allowed the trial court to

admit such evidence when there were merely “indicia of [the record’s]

reliability”—something that could be demonstrated by as little as foundational

evidence that the receiving entity had integrated the record into its own

records and relied on it. Ne. Bank & Tr. Co. v. Soley, 481 A.2d 1123, 1127

(Me. 1984).14 Carter’s clear and explicit articulation of more exacting criteria

¶ 15, 176 A.3d 717; Carter, 2011 ME 77, ¶¶ 13-14, 25 A.3d 96. Thus, the Court’s attempt to equate the analyses in Carter and Soley is a curious one. 14 As I state above, see supra n.11, in Radley we at least began our move away from the approach described in Soley a full nine years before Carter. At issue in Radley was the admissibility of a report of a funds transfer offered by the State. 2002 ME 150, ¶ 5, 804 A.2d 1127. The foundational witness, who was an employee of the receiving entity, testified that her office had received the report from another entity and relied on it—a foundation that was sufficient pursuant to Soley. Id. We held, however, that the witness was not “qualified” within the meaning of Rule 803(6) because she had no knowledge of the manner by which the sending entity created, maintained, or transmitted the report to the receiving entity. Id. ¶ 15. Additionally, at trial the proponent—the State—had failed to present any evidence of whether the record was created at or near the time of the event it described, whether the record was created by someone with knowledge of the event, and whether the entity had a regular practice of creating such a record. Id. ¶ 16. These are the criteria for the admissibility of an integrated business record that we articulated nine years later in Carter. Because in Radley the State had failed to develop a foundation, based on the testimony of a witness with knowledge, that the sending entity’s record-related practices met the requirements that are now found in Rule 803(6)(A)-(C), we concluded that the trial court erred by admitting the record in evidence. Id.

In a footnote in Radley, however, we did bring into question the scope of the holding and its effect on Soley. Id. ¶ 17 n.2, 804 A.2d 1127. We addressed the State’s contention that admission of the integrated business record was a “natural extension” of Soley because the foundational witness had testified that the receiving entity received and relied on it. Id. We rejected that entreaty because the report provided information that had been reported from yet another underlying source and because it described the defendant’s conduct rather than “objective and verifiable” information such as was involved in Soley (information about interest rates). Id. 26

for admissibility, however, can leave no doubt that we intended to implement

those more refined and disciplined standards, which also, unlike those

described in Soley, track the requirements as they were plainly stated in the

rule.

[¶39] The entire body of the Maine Rules of Evidence was restyled

effective at the beginning of 2015, more than three years after we issued our

decision in Carter. See 2014 Me. Rules 15 (effective Jan. 1, 2015). The only

change to Rule 803(6) created by the restyling was the helpful separation of the

rule’s foundational elements into discrete subparts. Cf. M.R. Evid. 803(6)

(Tower 2010). When the Advisory Committee on the Maine Rules of Evidence

presented the proposed restyled rules to the Supreme Judicial Court, the

Committee made explicit that the purpose of the restyling effort was to make

the language contained in the rules clearer while still “preserv[ing] the

substance of the respective rules without change.” Advisory Committee on the

Maine Rules of Evidence Note: Proposed Restyled Rules of Evidence [2014].

Therefore, at the very least, nine years before Carter, our decision in Radley signaled a limitation on the holding in Soley by requiring the proponent to present testimony from a knowledgeable foundational witness that the practices of the originating entity met the requirements now set out in subparts A through C of Rule 803(6). But Radley did not make a clean break from Soley because of the discussion in the footnote that appears to have distinguished Soley in part based on differences in the facts. Radley, 2002 ME 150, ¶ 17 n.2, 804 A.2d 1127. I therefore treat Carter as the analytical divide even though Radley certainly presaged that development by bringing Soley into considerable question that much earlier. 27

This means that, although having occasion to do so through its comprehensive

review of the rules, the Advisory Committee did not recommend a change from

the way we had construed Rule 803(6) several years earlier in Carter. Further,

our consideration of the proposed restyled body of rules also presented us with

the opportunity to rewrite or otherwise clarify Rule 803(6) in a way that would

alter Carter’s standards for the admissibility of integrated business records and

restore Soley’s. If our analysis in Carter had been mistaken, as the Court

concludes today, we could and presumably would have done so. But we did not,

and so the substance of Rule 803(6) remained the same, and Carter remained

good law.

[¶40] When we first considered and applied restyled Rule 803(6), in

KeyBank National Ass’n v. Estate of Quint, we quoted directly from Carter and

reiterated the requirement for the admissibility of integrated business records

that the foundational witness, if an employee of only the receiving entity, must

have the requisite knowledge of the regular practices of both the originating

and receiving entities: “[a] qualified witness is one who was intimately involved

in the daily operation of the business and whose testimony showed the

firsthand nature of his knowledge.” 2017 ME 237, ¶ 15, 176 A.3d 717

(quotation marks omitted). But the foundational witness need not be an 28

employee of the originating entity, in which case the witness must have

“sufficient knowledge of both businesses’ regular practices” in a measure that

demonstrates the reliability and trustworthiness of the information contained

in the document. Id. (quotation marks omitted). We affirmed the judgment

entered for the mortgagor because the trial court had correctly concluded that

the mortgagee did not develop foundational evidence that the originating entity

had engaged in the regular business practices meeting the requirements of the

rule as explained in Carter. Id. ¶ 19. Further, true to the provisions of the rule

and the Advisory Committee’s explanation of the proposed restyled rules, we

viewed restyled Rule 803(6) as containing the same substantive requirements

as the previous version. See id. ¶¶ 14-15. In other words, we reaffirmed the

Carter analysis, and that case therefore again remained good law.

[¶41] Similarly, in Deutsche Bank National Trust Co. v. Eddins, another

foreclosure case involving an integrated business record where the restyled

version of Rule 803(6) was applicable, we again stated that, for the document

to be admissible, the foundational witness must have “adequate knowledge of

the processes used by the entity that created and preserved the document.”

2018 ME 47, ¶ 12, 182 A.3d 1241. We also stated explicitly that “[t]he

incorporation of one entity’s record into the records of the receiving entity is 29

not a sufficient basis, by itself, for the admissibility of that record.” Id.

(emphasis added).

[¶42] The most recent case in which we considered the admissibility of

integrated business records is M & T Bank v. Plaisted, 2018 ME 121, 192 A.3d

601. There, the foundational witness was an employee of the originating entity

and was familiar with that business’s record-related practices, but we

concluded that, because he had no “personal knowledge” of the receiving

entity’s business practices, the integrated business record in the possession of

the receiving entity was not admissible. Id. ¶¶ 7-12, 24. This again

demonstrates that the proponent’s foundation must include testimony from a

witness with firsthand knowledge that the record-related practices of each

entity satisfy the requirements of Rule 803(6)(A)-(C).

[¶43] These cases—decided over the course of nearly a decade and

perhaps longer, see supra nn.11, 14, and all decided unanimously and without

doctrinal interruption—establish the standards that govern the admissibility

of integrated business records pursuant to Rule 803(6). The cases confirm that

the proponent must present evidence that the practices of both the originating

and receiving entities meet the specific criteria set out in subparts A through C;

an attempt to show reliability in some other way falls short. The cases also 30

require that the foundation emanate from one or more witnesses who, to be

“qualified” within the meaning of Rule 803(6)(D), must have actual familiarity

with the processes used by both the originating and receiving entities for

creating, handling, and retaining the business record at issue.

[¶44] In contrast, the standard announced today by the Court allows

admission of an integrated business record on foundational evidence that the

receiving entity integrated, verified, and relied on the document it received

from the originating entity. Further, as the Court describes the standard, the

receiving entity can “verify” the record when that entity “simply

. . . establish[es] or confirm[s] the accuracy of the record in some way.” Court’s

Opinion ¶ 11 (emphasis added). That standard—particularly the highly

nonspecific criterion for how the receiving entity may verify a record’s

accuracy—is entirely at odds with, and is insufficient to satisfy, the plain

language of Rule 803(6) and our interpretive case law since at least 2011.

Despite that legal authority and the clear requirements of Rule 803(6)(A)-(D),

based on the Court’s decision today, no longer will the proponent be required

to present evidence, based on the testimony of a “qualified witness” as we have

construed that term, see Carter, 2011 ME 77, ¶¶ 13-14, 25 A.3d 96, that the

record was made at the time or near the time of the recorded event by someone 31

with knowledge of the event, that the document was kept in the course of the

originating business’s regularly conducted activity, and that creating the record

was among the originating business’s regular practices.

[¶45] Notwithstanding the interpretation of Rule 803(6) it announces

today, the Court states that the requirements of Rule 803(6) will continue to

govern the admissibility of integrated business records and that the proponent

will still be required to present foundational evidence from which it may be

“inferred” that the originating entity’s practices satisfy the predicate elements

in the Rule. Court’s Opinion ¶ 23 n.7. This assertion is belied by the very

evidentiary standard the Court adopts here. For an integrated business record

to be admissible from now on, the proponent will need only present evidence

that the downstream entity received, verified, and relied on the document

created by the upstream entity. As I have discussed above, however,

Rule 803(6) prescribes standards that are different and more exacting. The

three steps to be taken by the receiving entity that the Court finds to be

cumulatively sufficient—receipt, verification, and reliance—do not bear any

meaningful or predictable relationship to the particularized requirements of

the Rule, which center on a showing of specific practices used by the originating

entity in creating, maintaining, and transmitting the document. See M.R. 32

Evid. 803(6)(A)-(C). Despite the Court’s attempts to minimize or even erase

the differences, the requirements prescribed by the Rule in fact are

qualitatively distinct from the more tolerant criteria the Court adopts today.

[¶46] The Court also asserts several times that within our current

jurisprudence there is a “conflict” regarding the admissibility of integrated

business records. Court’s Opinion ¶¶ 1, 23, 24. I submit, with respect, that the

Court is wrong. Our decisions beginning no later than with the 2011 opinion in

Carter establish a consistent and clear set of standards for the admissibility of

integrated business records. That the evidentiary criteria articulated in those

cases may differ from those set out in older cases, such as Soley, does not create

an ongoing conflict. Rather, Carter and the cases that follow represent a

succession by which previous law has been superseded. Further, the Court

describes Soley as “good law” and states that there was no indication in Carter

of an intention to depart from Soley. Court’s Opinion ¶¶ 20, 23. That is plainly

not the case, as is made clear by our analysis and discussion of the issue in our

opinions beginning with Carter—cases that the Court now effectively must

overrule to reinstate pre-Carter jurisprudence.15

Not once in its opinion does the Court directly state that it is overturning the line of cases 15

beginning with Carter, although that is clearly what the Court is doing. 33

[¶47] In doing so, the Court writes off a decade’s or more worth of our

decisions, beginning with Carter (if not State v. Radley, 2002 ME 150, 804 A.2d

1127, see infra nn.11, 14) and continuing through Plaisted, because, the Court

suggests, we did not pay enough attention to the admissibility standards

contained in earlier decisions and therefore decided those cases based on

oversight and inadvertence. See Court’s Opinion ¶¶ 20-22. That view, however,

cannot account for our explicit articulation of pertinent evidentiary standards

in the cases beginning with Carter, and, regrettably, it reflects a diminution of

the weight and significance that should be attributed to our decision-making

process, which, although certainly not infallible, is exercised with care, and with

sensitivity to and appreciation for our role as the court of last resort.

2. 2018 Amendment to Rule 803(6)

[¶48] The Bank and several of its supporting amici place significance on

a 2018 amendment to Rule 803(6)(E), 2018 Me. Rules 09 § 2 (effective Aug. 1,

2018), to support the conclusion that we should now interpret the rule as do

other jurisdictions, including specifically the federal courts as exemplified in

U.S. Bank Trust, N.A. v. Jones, 925 F.3d 534 (1st Cir. 2019).16 I disagree.

16 In that case, the First Circuit stated that there is no material difference between the Maine and

federal approaches to the admissibility of integrated business records. U.S. Bank Tr., N.A. v. Jones, 925 F.3d 534, 539 & n.1 (1st Cir. 2019). I respectfully submit that this is not so because the analysis described in Jones tolerates the absence of any personal knowledge by the witness about the 34

[¶49] The modest change implemented by the 2018 amendment does

not have such a radical effect. The amendment did nothing more than fill a gap

in the allocation of the burden of proof on a limited aspect of the rule, by

providing that the burden to demonstrate a lack of trustworthiness sufficient

to defeat admission of the proffered document rests with the opponent, thereby

clarifying that the proponent is not required to demonstrate the absence of

indicia of untrustworthiness.17 See M.R. Evid. 803(6)(E). The amendment did

not introduce the general consideration of a business record’s

untrustworthiness. That factor was already present in the prior formulation of

the rule. See M.R. Evid. 803(6)(E) (Tower 2017). The amendment also did not

touch the specific predicate criteria for admission of a business record

contained in subparts A through C: whether the document was made at or near

the time of the recorded event by, or with information from, someone with

originating entity’s records practices and does not require the proponent to present foundational evidence that the record-related practices of the originating entity meet the requirements of Rule 803(6)(A)-(C). Jones, 925 F.3d at 538. These principles run contrary to Maine law, as is shown by my review of our case law. Indeed, in now abandoning Maine’s current case law and adopting the framework described in Jones, the Court confirms the existence of the differences between the two approaches. 17 As the result of the 2018 amendment, Rule 803(6)(E) now provides that a business record

meeting the standards set out in the remaining aspects of the Rule is admissible if “[t]he opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.” See 2018 Me. Rules 09 § 2 (amending M.R. Evid. 803(6)(E)); see also supra n.10 (setting out the current Rule in its entirety). 35

knowledge; whether the record was created in the normal course; etc. Further,

the amendment did not alter the basis or measure of knowledge that the

foundational witness must have: the witness still must be “qualified” pursuant

to Rule 803(6)(D), a concept that we had addressed and explained in our case

law outlined above.

[¶50] The limited nature of the 2018 amendment is made even more

apparent by the statement of the Advisory Committee on the Maine Rules of

Evidence, accompanying the submission of the proposed rule amendment to

the Supreme Judicial Court, that the rule change was not substantive—it would

not change the factors that bear on the determination of admissibility. M.R.

Evid. 803 Advisory Committee Note – August 2018. As the Advisory Committee

explained, the amendment merely codified the practice that was already being

followed by Maine courts and litigants. Id. Both this description of the

amendment and the nature of the amendment itself confirm its nonsubstantive

content, further undermining use of the amendment as a springboard to justify

substantial substantive changes to separate components of the evidentiary

standard governing the admissibility of integrated business records. To

conclude that this limited amendment contributes to a wholesale revision of 36

the entire analysis governing integrated records reads far too much into such a

narrow rule change.

[¶51] In my view, Maine law is clear, and the Court’s efforts to tease out

vestiges of pre-Carter jurisprudence from current case law, see Court’s Opinion

¶¶ 19, 22, do not change that fact. The proponent of an integrated business

record must demonstrate, through testimony of a witness with knowledge, that

the originating and receiving entities each engaged in record-related practices

that satisfy the requirements of Rule 803(6)(A)-(C). Contrary to the Court’s

conclusion, the receiving entity’s mere integration, verification, and reliance on

the originating entity’s record is not sufficient to render the record admissible.

See supra ¶¶ 44-45.

[¶52] At the trial in this action, the dispositive issue became the

admissibility of a notice of default and right to cure ostensibly created and

issued by the law firm engaged by the servicer of the mortgage. See Bank of Am.,

N.A. v. Greenleaf, 2014 ME 89, ¶ 18, 96 A.3d 700 (stating that proof of mailing

or other authorized method of service is one of the elements of a foreclosure

case); 14 M.R.S. § 6111(3) (2018), repealed and replaced by P.L. 2019, ch. 361

§§ 1, 2 (effective Sept. 19, 2019) (codified at 14 M.R.S. § 6111(2-A) (2020)). The

Bank developed no evidence that the foundational witness, who was an 37

employee of the servicer, oversaw, reviewed, or had any familiarity with the

law firm’s internal processes for creating and mailing default notices, and the

witness did not describe any such processes themselves, including the mailing

process. As the Court itself recognizes, Court’s Opinion ¶ 29, and contrary to

the Bank’s contention on appeal, the trial court correctly determined, based on

that record and the current, controlling Maine law, that the Bank had not

qualified the notice as an admissible integrated business record.

[¶53] Because the court committed no error when it excluded the notice,

the judgment should be affirmed, unless our cases, beginning with Carter,

establishing the standards for the admissibility of integrated business records

should be overturned. This question directly implicates principles of stare

decisis.

3. Stare Decisis18

[¶54] An analytical cornerstone of jurisprudence, the doctrine of stare

decisis calls upon the courts to respect legal precedent in order to provide

18 It bears note that the Bank itself has not explicitly asserted that current Maine case law should

be overturned. In fact, while this appeal was pending we raised the issue and invited the parties and amici to submit briefs on the question of whether, in light of the First Circuit’s decision in Jones, we should change the way we apply Rule 803(6) to integrated business records. In its supplemental brief, the Bank then asserted that adoption of Jones would actually clarify rather than change Maine’s current law on integrated business records. Nonetheless, the Bank also argued that the trial court incorrectly applied Maine’s current law to the evidence, thereby making it unduly difficult for a proponent to achieve admission of integrated business records—a particular challenge, presumably, for mortgagees given that sequential ownership and management of mortgages is common. See 38

“stability to the law and enable[] the public to place reasonable reliance on

judicial decisions affecting important matters. Even when we have a certain

unease with the analysis of a prior decision, we do not overrule the decision

without a compelling and sound justification.” McGarvey v. Whittredge, 2011

ME 97, ¶ 63, 28 A.3d 620 (Levy, J.) (quotation marks omitted). As the Chief

Justice of the United States has recently stated, the principle of stare decisis “is

grounded in a basic humility that recognizes today’s legal issues are often not

so different from the questions of yesterday and that we are not the first ones

to try to answer them. Because the private stock of reason . . . in each [person]

is small, . . . individuals would do better to avail themselves of the general bank

and capital of nations and of ages.” June Med. Servs., L.L.C. v. Russo, --- U.S. ---, ---,

140 S. Ct. 2103, 2134 (2020) (Roberts, C.J., concurring) (quotation marks

omitted).

[¶55] To be sure, respect for precedent is not an absolute bar that ossifies

obsolete judicial reasoning and conclusions. Dyer v. Me. Drilling & Blasting, Inc.,

2009 ME 126, ¶ 28, 984 A.2d 210; MacDonald v. MacDonald, 412 A.2d 71, 74

Homeward Residential, Inc. v. Gregor, 2015 ME 108, ¶ 13, 122 A.3d 947. To the contrary, the trial court’s analysis was entirely faithful to Maine’s current evidentiary standards. Consequently, the Bank’s complaint about the effect of the court’s ruling can be seen, at most, as a de facto challenge to our present case law governing Rule 803(6), even though the Court has now proceeded as if the Bank had asked us more directly to overrule our precedent. 39

(Me. 1980) (stating that stare decisis does not require “judges of the present,

who like their predecessors cannot avoid acting when called upon, . . . to act as

captives of the judges of the past, restrained without power to break even those

bonds so withered by the changes of time that at the slightest touch they would

crumble”). Nonetheless, in order to promote predictability and stability in the

law and to avoid arbitrariness, “appellate courts proceed with great care before

overruling a prior decision, and do so only after careful analysis and based on a

compelling reason. We do not disturb a settled point of law unless the

prevailing precedent lacks vitality and the capacity to serve the interests of

justice.” State v. Bromiley, 2009 ME 110, ¶ 6, 983 A.2d 1068 (citation omitted)

(quotation marks omitted).

[¶56] Considerations relevant to whether precedent should be cast aside

include whether the existing approach has “fallen into jurisprudential

disrepute and is disapproved in better-considered recent cases and in the

authoritative scholarly writings,” Dyer, 2009 ME 126, ¶ 28, 984 A.2d 210

(quotation marks omitted); whether “the passage of time and changes in

conditions” call for a reassessment of existing law to the point of “reaching a

different result,” Est. of Galipeau v. State Farm Mut. Auto. Ins. Co., 2016 ME 28,

¶ 15, 132 A.3d 1190 (quotation marks omitted); and the administrability of the 40

law at issue, June Med. Servs., --- U.S. at ---, 140 S. Ct. at 2134 (Roberts, C.J.,

concurring) (citing Janus v. AFSCME, Council 31, --- U.S. ---, 138 S. Ct. 2448,

2478-79 (2018)).

[¶57] This case does not present a justification for abandoning current

Maine law governing the admissibility of integrated business records. We

suggested those evidentiary standards as early as 2009 in State v. Radley, 2002

ME 150, 804 A.2d 1127, see supra nn.11, 14, and we have articulated them

clearly and consistently since 2011 and as recently as 2018—hardly an

antiquated body of law. Our case law has not become obsolete or fallen into

disrepute over time because of advances in legal thought. Cf. Dyer, 2009 ME

126, ¶ 18, 984 A.2d 210 (concluding that developments in the law over the

previous half-century warranted changes in applicable Maine law). This is also

not a situation where our current law creates such unfairness as to justify

rejection of recent precedent. Cf. Myrick v. James, 444 A.2d 987, 999 (Me. 1982),

superseded by statute on other grounds as stated in Sears, Roebuck & Co. v. State

Tax Assessor, 2012 ME 110, ¶ 1, 52 A.3d 941 (overturning Maine precedent that

we determined was “harsh and unjust” and “counterproductive to the

achievement of any principled conception of fair and even-handed justice”).

Further, there is no significant difficulty in administering—i.e., applying—the 41

rule (although, as is evident from the cases I review above, mortgagees

sometimes have difficulty at trial meeting the standards prescribed in

Rule 803(6)).

[¶58] The divergence between Maine law and the law of other

jurisdictions, exemplified by Jones, is not a new circumstance that would justify

departing from our precedents. Jones relies on several federal cases going as

far back as 1992. 925 F.3d at 537 (citing United States v. Doe, 960 F.2d 221, 223

(1st Cir. 1992)). And here the Court itself cites to federal and state appellate

court opinions that were issued decades ago. See Court’s Opinion ¶ 13. We

developed our modern-day standards for the admissibility of integrated

business records in our decisions beginning no later than Carter in 2011, well

after some other courts had put their less stringent model in place. This means

that the approach described in Jones and elsewhere was available for us to

consider and possibly adopt throughout the entire time that we have been

articulating our different standard for the admission of integrated business

records. Nonetheless, we took a different route.

[¶59] Finally, the Court states that there is benefit to interpreting Maine’s

rule uniformly with the construction found in other jurisdictions, in part to

discourage forum-shopping. See Court’s Opinion ¶ 25. When the Maine Rules 42

of Evidence were restyled effective in 2015, however, the Advisory Committee

on the Maine Rules of Evidence presented the proposed amendments to the

Supreme Judicial Court with the explicit explanation that “[r]estyled Rule 803

preserves the substantive differences between the Maine and the Federal

Rules.” M.R. Evid. 803 Maine Restyling Note [November 2014]. This makes

clear that the restyled rules were not proposed to us in order to create that

uniformity—and in fact they were intended to preserve the independence of

our own jurisprudence. Since then, we have done nothing to call that

framework into question. Based on this history, homogeneity between Maine

law and the law of other jurisdictions, while not without some ancillary value,

is nonetheless not an objective to be pursued for its own sake.19

[¶60] The question here is not whether the approach to integrated

business records embodied in Jones is reasonable. Rather, the issue now before

the Court is whether Maine’s current case law governing Rule 803(6) is wrong.

It is not. As I have discussed, our case law going back at least as far as 2011

could not be clearer in requiring a greater foundational showing than Jones and

19Another example of the lack of symmetry between Maine’s rules of evidence and the federal rules is that the latter include a residual hearsay exception. See Fed. R. Evid. 807. Maine’s rules do not. See M.R. Evid. 803 Maine Restyling Note [November 2014]; M.R. Evid. 803 Advisers’ Note to former M.R. Evid. 803 (February 2, 1976). 43

the courts of other jurisdictions insist on, but that divergence does not prove

Maine’s criteria to be incorrect; the existence of one approach does not prove

the other wrong. Rather, the difference in approaches simply represents

different levels of sensitivity to the measure of reliability that must characterize

an integrated business record to allow its admission in evidence. Additionally,

Maine’s current approach has the benefit of faithfulness to the language of

Rule 803(6) itself. What the Court does today is simply to adopt one approach,

which is described in Jones and has existed all along, as the replacement for

another, which is described in Carter and is different but in no way incorrect.

In my view, to jettison a well-established and perfectly appropriate and

defensible legal standard established in Maine’s authoritative case law does

damage to the safeguard and stability of legal precedent achieved through

adherence to the basic principle of stare decisis.

[¶61] Given the fundamental importance of respecting and following

precedent, and the absence of any rationale that constitutes a “compelling”

justification necessary for departing from settled and well-established law,

Bromiley, 2009 ME 110, ¶ 6, 983 A.2d 1068, we should not overrule the case 44

law establishing our current jurisprudence on the admissibility of integrated

business records.20

B. The Court’s Rulemaking Authority

[¶62] For the reasons I have explained, there does not exist a sound

jurisprudential basis for the Court’s decision to change its construction of

Rule 803(6) as applicable to integrated business records. As a result, today’s

decision must be viewed as a de facto change to the meaning and content of the

rule itself—something the Court may do pursuant only to its statutory

authority to promulgate the rules that govern judicial proceedings, not in

exercise of its appellate authority. See 4 M.R.S. §§ 1, 8, 9-A, 51 (2020).

[¶63] By concluding that the proponent need present evidence only that

the receiving entity received, verified, and relied on a record generated by the

originating entity, see Court’s Opinion ¶ 30, the Court effectively eliminates the

specific requirements imposed by Rule 803(6)(A)-(C) as they apply to

To the extent that the Court concludes—without the benefit of any advocacy on the point, see 20

supra n.18, and while simultaneously stating that Carter is entitled to respect as precedent—that Carter and the cases that followed were themselves decided in contravention of principles of stare decisis, Court’s Opinion ¶ 23 & n.7, the Court collaterally attacks those decisions. This leaves one to wonder about the consequences of the application of Rule 803(6) to the judgments addressed in those cases, and the many additional judgments that have been issued in the trial courts based on our current law governing the admissibility of integrated business records, not only in foreclosure cases but in all other types of cases where such records were material. Additionally, the fact remains that our current jurisprudence is the law, so the question presented here is whether we should now reject that authority. 45

integrated business records, namely, that the proponent must present

foundational evidence that the record “was made at or near the time by—or

from information transmitted by—someone with knowledge,” that it “was kept

in the course of a regularly conducted activity of a business,” and that “[m]aking

the record was a regular practice of that activity.” As I have discussed above,

supra ¶¶ 44-45, the rule, as the Court now interprets it, therefore will now allow

a materially lesser foundational showing than is required by the plain terms of

the rule for a proffered integrated business document to become admissible in

evidence.

[¶64] The Court describes this as an integrated records “method,” which

it bases on a generalized notion of reliability. Court’s Opinion ¶¶ 8-10. No such

“method” exists within Rule 803(6), however. As written, the specific

requirements of the rule, including those set out in subparts A through C, apply

irrespective of whether the record is that of a single entity or is an integrated

record. By construing the rule as it does, the Court effectively exempts

integrated business records from the particularized foundational predicate set

out in subparts A through C and thereby rewrites the rule by eliminating those

requirements for such records to be admitted in evidence.21 See Radley, 2002

21 Although the Court denies that it is rewriting Rule 803(6) because it is simply returning to our interpretation of the Rule from the Soley era, Court’s Opinion ¶ 23 & n.7, the fact remains that the 46

ME 150, ¶ 17, 804 A.2d 1127 (stating that the erroneous admission of an

integrated business record, where it is not supported by the foundational

requirements of Rule 803(6), cannot be transformed into a correct ruling

because, unlike the federal rules, see Fed. R. Evid. 807, the Maine Rules of

Evidence do not include a residual or “catch-all” exception to the hearsay rule,

which might allow the record to be admissible).

[¶65] When promulgating or amending rules of court, the Court invokes

and exercises authority in its capacity as the Supreme Judicial Court. See

4 M.R.S. §§ 1, 8, 9-A, 51. That authority is separate and mutually exclusive from

the authority we exercise when sitting as the Law Court, an appellate body.

Compare 4 M.R.S. § 8 (rulemaking authority), with 4 M.R.S. §§ 51, 57 (2020)

(appellate authority); see also State v. Doucette, 544 A.2d 1290, 1294

(Me. 1988). Here, by effectively rewriting the way Rule 803(6) applies to

integrated business records, the Court is improperly exercising its regulatory

rulemaking powers in an adjudicatory context. See Conservatorship of Emma,

2017 ME 1, ¶¶ 1, 10, 153 A.3d 102 (declining to answer a question reported by

the Kennebec County Probate Court in part because questions “of policy, with

construction of the Rule now embraced by the Court changes the substance and structure of the Rule as established by our current controlling jurisprudence. This amounts to an amendment of the Rule itself. 47

long-ranging and far-reaching implications” are properly answered not

through adjudication but through the rulemaking process in which the related

issues “can be addressed together in an open forum”).

[¶66] I have no quarrel with the suggestion that it may be beneficial to

reexamine the way Rule 803(6) should be applied to integrated business

records, at least in foreclosure cases. The Bank and its allied amici assert that

Rule 803(6), as we have construed it since 2011, imposes an unfair and

unnecessary obstacle to admitting those records, which can contain necessary

aspects of proof in foreclosure cases where mortgages are often transferred

from one entity to the next and the servicing of a single mortgage can also

change hands. See Plaisted, 2018 ME 121, ¶ 1, 192 A.3d 601 (noting the

challenges faced by mortgagees in proving a foreclosure case because of the

industry’s “practice of securitization, spawning a byzantine mass of

assignments, transfers, and documentation” (quotation marks omitted)). On

the other side, several amici in support of Shone and Buck’s position point to a

checkered track record in the efforts of mortgagees to present sufficient and

reliable information about the history of mortgages on which they have sought

to foreclose, and those amici point to the incentive that mortgagees, servicers,

and others involved in administering mortgages may have to simply adopt, 48

verify, and rely on one another’s records. See id. ¶ 2 (“The law, the rules of

evidence, and court processes have not become more complicated in these

matters. Applying established law, however, has become more problematic as

courts address the problems the financial services industry has created for

itself.” (quotation marks omitted)); see also HSBC Mortg. Servs., Inc. v. Murphy,

2011 ME 59, ¶ 15 & n.8, 19 A.3d 815.

[¶67] Although this is a discussion that may be well worth having, it must

occur in a forum other than this appeal, where we are called upon to interpret

and apply Rule 803(6) as it exists. The proper vehicle to address the efficacy of

the current Rule to serve its purposes effectively in some or all contexts is

through the Advisory Committee on the Maine Rules of Evidence or other

interested persons or entities, and ultimately within the Supreme Judicial

Court, exercising its rulemaking authority—a deliberative process that likely

would require consideration of broad empirical industry-wide practices based

on information that goes well beyond the present record. For the Court to

de facto rewrite the rule in the context of this appeal is an improper exercise of

its rulemaking authority in an adjudicatory proceeding. 49

C. Conclusion

[¶68] The trial court correctly applied Rule 803(6) and committed no

error when it excluded the notice of default and right to cure, directly resulting

in the entry of judgment for mortgagors Danielle Shone and Michael Buck.

Further, there is no proper persuasive basis for casting aside our clear and

well-established jurisprudence governing the admissibility of integrated

business records. The judgment should be affirmed.

Santo Longo, Esq., Bendett & McHugh, P.C., Portland, and William A. Fogel, Esq. (orally), San Diego, California, for appellant the Bank of New York Mellon

Mark A. Kearns, Esq. (orally), and Mark L. Randall, Esq., Portland, for appellees Michael Buck and Danielle Shone

Jeremy Kamras, Esq., Arnold & Porter Kay Scholer LLP, San Francisco, California, for amicus curiae Federal Housing Finance Agency

Andrea Bopp Stark, Esq., National Consumer Law Center, Boston, Massachusetts, for amicus curiae National Consumer Law Center

Daniel L. Cummings, Esq., and Michael T. Devine, Esq., Norman, Hanson & Detroy, LLC, Portland, for amicus curie Maine Credit Union League

Diane Cipollone, Esq., Yarmouth, for amici curiae National Association of Consumer Advocates, Marc Dann, the Dann Law Firm, James Sturdevant, the Sturdevant Law Firm, Phillip Robinson, and the Consumer Law Center LLC

Frank D’Alessandro, Esq., Augusta, for amicus curiae Maine Equal Justice 50

Jonathan E. Selkowitz, Esq., Pine Tree Legal Assistance, Inc., Portland, for amicus curiae Pine Tree Legal Assistance, Inc.

Catherine R. Connors, Esq., John J. Aromando, Esq., and Sara A. Murphy, Esq., Pierce Atwood LLP, Portland, for amicus curiae The Maine Bankers Association

Brett L. Messinger, Esq., and Elizabeth M. Lacombe, Esq., Portland, for amicus curiae PHH Mortgage Corporation

Kelly W. McDonald, Esq., Murray, Plumb & Murray, Portland, for amicus curiae Full Disclosure, LLC

Thomas A. Cox, Esq., Portland, for amicus curiae Maine Attorneys Saving Homes

Gerald F. Petruccelli, amicus curiae pro se

Cumberland County Superior Court docket number RE-2015-116 FOR CLERK REFERENCE ONLY