JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE.
A lender seeks to foreclose after a borrower defaulted on her loan payments. Because the right to cure letter overstated the amount that the borrower had to pay in order to cure her default and Maine law requires strict adherence to all statutory foreclosure requirements, including an accurate itemization of all past due amounts that caused the loan to be in default and the total amount due to cure the default, the lender is not entitled to foreclose on the property. However, the same fatal error does not apply with the lender's lawsuit on its promissory note and breach of contract counts and the Court grants the lender judgment on those counts. The Court also grants the lender's request to correct the legal description of the subject property in the mortgage deed.
On December 14, 2016, U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust (U.S. Bank), filed a civil action against Julia L. Jones, asserting that Ms. Jones had failed to pay U.S. Bank in accordance with the terms of a promissory note and demanding that the property that secured the note be foreclosed. Compl. (ECF No. 1). More specifically, U.S. Bank's Complaint contains six counts: (1) Count One — foreclosure; (2) Count Two — breach of note; (3) Count Three — breach of contract; (4) Count Four — quantum meruit; (5) Count Five — unjust enrichment; and (6) Count Six — reformation of mortgage. Id. On February 10, 2017, Ms. Jones answered the Complaint. Def.'s Answer to Pl.'s Compl. (ECF No. 5) (Answer).
On the same day, Ms. Jones moved to dismiss counts IV and V of the Complaint.
On November 6, 2017, a bench trial was held on Counts I, II, and III. Minute Entry for Bench Trial (ECF No. 29). On December 6, 2017, Ms. Jones filed a post-trial brief. Def.'s Post Trial Mem. (ECF No. 34) (Def.'s Br.). U.S. Bank filed a reply on January 12, 2018. Pl.'s Reply to the Def.'s Post Trial Mem. (ECF No. 36) (Pl.'s Reply). Contemporaneously, on December 7, 2017, U.S. Bank filed its post-trial brief. Pl.'s Post Trial Mem. (ECF No. 35) (Pl.'s Br.). Ms. Jones filed her reply on January 16, 2018. Def.'s Post Trial Reply Mem. (ECF No. 37) (Def.'s Reply).
U.S. Bank is a corporation organized under the laws of the state of Minnesota, with its principal place of business located at 425 Walnut Street, Cincinnati, Ohio. Compl. ¶ 4; Answer ¶ 4. Ms. Jones is a resident of the town of Raymond, County of Cumberland, and state of Maine. Compl. ¶ 5; Answer ¶ 5.
On July 21, 2004, James L. Jones and Linda P. Jones conveyed property situated at 139 Conesca Road, Raymond, Maine, 04071, by Warranty Deed recorded in the Cumberland County Registry of Deeds in Book 21580, Page 18, as corrected by Corrective Warranty Deed recorded in Book 22049, Page 213. Compl. ¶ 6, 8; Answer ¶ 6, 8.
On April 17, 2007, Ms. Jones, in return for a loan, executed and delivered to Downeast Mortgage Corporation a note in the amount of $160,000.00 (the Note). Compl. ¶ 7; Answer ¶ 7; Pl.'s Ex. 1. On April 18, 2007, to secure the Note, Ms. Jones executed a Mortgage Deed in favor of Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Downeast Mortgage Corporation, securing the property located at 139 Conesca Road. Compl. ¶ 8; Answer ¶ 8; Pl.'s Ex. 2. The mortgage deed is recorded in the Cumberland County Registry of Deeds in Book 25033, Page 312. Id. On September 1, 2011, Ms. Jones executed a Home Affordable Modification Agreement which decreased the principal balance of the Note to $159,019.35. Compl. ¶ 9; Answer ¶ 9; Pl.'s Ex. 3.
On June 7, 2013, MERS, as nominee for Downeast Mortgage, assigned the mortgage to Bank of America, N.A. and recorded the assignment in the Cumberland County Registry of Deeds in Book 30753, Page 215. Pl.'s Ex. 4. On April 1, 2015, the mortgage was further assigned to U.S. Bank, as recorded in Book 32188, Page 91. Pl.'s Ex. 5. The transfers were confirmed and title clarified by an order of the Maine Superior Court on July 19, 2016. Pl.'s Ex. 6.
On August 3, 2016, Caliber Home Loans, Inc., as servicer on behalf of U.S. Bank, sent Ms. Jones a Notice of Right to Cure (Demand Letter). Compl. ¶ 13; Answer ¶ 13; Pl.'s Ex. 7. Ms. Jones failed to make the monthly payments beginning with the one due on November 1, 2012, and Ms. Jones did not make further payments after receiving the Demand Letter. Compl. ¶ 15, 24; Answer ¶ 15, 24.
At trial, U.S. Bank sought to establish the amount due on the loan, including interest and fees, by introducing an account summary and a spreadsheet of transactions. Pl.'s Ex. 8. According to those records, as of November 1, 2017, Ms. Jones
Ms. Jones is still in possession of the subject property. Compl. ¶ 19; Answer ¶ 19.
Ms. Jones argues that judgment must be entered against U.S. Bank because the Notice of Default and Right to Cure Letter was defective for several reasons. Def.'s Br. at 1; Def.'s Reply at 1-2. First, Ms. Jones claims that Maine law and the terms of the mortgage require the mortgagee — not the servicer — send the notice. Def.'s Br. at 2. Second, she contends that the figures in the demand letter were incorrect because the total included $2638.32 in a "Corporate Advance Balance" line item, which she maintains was for attorney's fees and costs that U.S. Bank had no right to recoup from her. Id. at 2-3.
Ms. Jones also asserts that U.S. Bank's Exhibit 8, the spreadsheet of transactions for her loan, was not properly admitted into evidence or should be accorded no weight for several reasons. Id. at 3. First, Ms. Jones argues that Ms. Lopez's testimony about the "boarding" — or records transfer — of Ms. Jones' loan from a previous servicer must be disregarded and stricken as hearsay because the boarding occurred on November 11, 2014, more than a year before Caliber hired her. Id.; Def.'s Reply at 2. Second, she contends that U.S. Bank has not adequately authenticated the document because there was no testimony about the fidelity of the printout to the electronic database and the blacked out account number on the printout indicates it does not "accurately reflect the electronic information it purported to demonstrate." Def.'s Br. at 4.
Ms. Jones sees a number of discrepancies in the loan records which undermine their reliability. Ms. Jones says that Caliber's late charges total $432.81 in its demand letter but total $1442.70 in its September 13, 2017 spreadsheet, Def.'s Ex. 1, even though the charges should cover the same period. Def.'s Br. at 4-5. Ms. Jones suggests there is also a discrepancy between the per diem interest rates on Caliber's spreadsheets, Pl.'s Ex. 8, Def.'s Ex. 1, and a letter from the previous servicer, Seterus, Def.'s Ex. 2, and says the interest totals for the period are mathematically incorrect because they are not even multiples of the per diem interest amount. Def.'s Br. at 5-6; Def.'s Reply at 3.
Finally, Ms. Jones urges the Court to avoid a cursory analysis of the business records exception, particularly because "the party offering the records did not actually create those records," but merely received them from a separate entity without "knowledge of the transmitting entity's recordkeeping practices ...." Def.'s Br. at 6-9; Def.'s Reply at 3. She is skeptical of so-called "integration" of business records, whereby some courts admit business records of a previous entity because a subsequent entity incorporated those records and relied upon them. Def.'s Br. at 6-9; Def.'s Reply at 3 (citing Keybank N.A. v. Quint, 2017 ME 237, 176 A.3d 717).
U.S. Bank maintains that its demand letter gave proper notice under Maine law. Pl.'s Br. at 6-7; Pl.'s Reply at 1-2. It suggests, "Maine courts have neither discussed nor adopted" a requirement that the lender specifically, as opposed to the lender's servicer as its agent, mail the letter to the borrower. Pl.'s Br. at 6-7; Pl.'s
Regarding the per diem interest calculation, U.S. Bank explains that it "can be calculated by multiplying the principal amount of the loan ... by [the] (annual percentage rate of interest), and dividing by 365." Id. at 9 (quoting Frazier v. HSBC, 401 Fed.Appx. 436, 438 n. 2 (11th Cir. 2010)). U.S. Bank maintains that the $23.42 figure in its spreadsheets is correct. Id.
Regarding the redaction of the financial account number, U.S. Bank insists that it was only complying with Federal Rule of Civil Procedure 5.2 to protect the plaintiff's privacy, and that U.S. Bank should not be penalized because that would lead to an absurd result. Pl.'s Reply at 3. It argues that there is no genuine question that the duplicate document accurately reflects Caliber's original electronic records. Id. at 3-4.
U.S. Bank contends that its spreadsheet was properly admitted into evidence pursuant to Federal Rule of Evidence 803(6), the business records exception to the hearsay prohibition. Pl.'s Br. at 5-6. It explains that Ms. Lopez can testify about the reliability of the records even though she was not yet employed at Caliber when the documents were created, because the witness need not be the person who actually prepared the record, so long as the witness can explain and be cross examined concerning the manner in which the records are made and kept. Pl.'s Reply at 2-3.
There are eight elements of proof that a plaintiff must meet in order to support a judgment of foreclosure under 14 M.R.S. § 6321:
Bank of Am., N.A. v. Greenleaf, 2014 ME 89, ¶ 18, 96 A.3d 700 (internal modifications and footnotes omitted) (numbering supplied) (quoting Chase Home Finance LLC v. Higgins, 2009 ME 136, ¶ 11, 985 A.2d 508). The Maine Supreme Judicial Court has also repeatedly emphasized that
Element six requires lenders to strictly comply with the requirements of 14 M.R.S. § 6111. That notice provision applies "[w]ith respect to mortgages upon residential property ... when the mortgagor is occupying all or a portion of the property as the mortgagor's primary residence and the mortgage secures a loan for personal, family or household use ...." 14 M.R.S. § 6111(1). In those cases, "the mortgagee may not accelerate maturity of the unpaid balance of the obligation or otherwise enforce the mortgage because of a default... until at least 35 days after the date that written notice ... is given by the mortgagee to the mortgagor...." Id. The written notice must include:
14 M.R.S. § 6111(1-A).
Ms. Jones' first argues that the demand letter was defective because the lender's servicer, Caliber, rather than the lender, U.S. Bank, sent the notice. This argument rests on a particularly stringent parsing of the phrase in the statute requiring "that written notice ... is given by the mortgagee to the mortgagor...." 14 M.R.S. § 6111(1) (emphasis supplied). Ms. Jones points to no case, however, where a Maine court has found a demand letter defective because it was sent by the mortgagee's servicer, rather than the mortgagee. Furthermore, such a narrow interpretation ignores well established agency principles without any indication that the Maine Legislature intended this result. Even with the Maine Supreme Judicial Court's instruction that lenders are to strictly comply with the requirements of the statute, in an industry where lenders often hire servicers to handle loans, including
Ms. Jones' second argument regarding the demand letter is that it was defective because the numerical totals in the demand letter did not accurately state the amounts she was required to pay to cure the default. Subparagraphs B and C of § 6111 require an "itemization" of the amounts the debtor must pay. The Maine Supreme Judicial Court indicates that "the amount due as stated in the notice of default is the precise amount that the mortgagor has thirty-five days to pay in order to cure the default...." Greenleaf, 2014 ME 89, ¶ 31, 96 A.3d 700 (invalidating a demand letter because it did not state the precise amount of fees due). The Court agrees with Ms. Jones that § 6111 implicitly requires an accurate or "precise" itemization. The Maine Legislature could hardly have intended to force lenders to send notices itemizing the amounts for the borrower's right to cure to the borrower while also allowing lenders to foreclose even if those amounts are inaccurately inflated.
U.S. Bank's August 3, 2016 notice of default and right to cure letter contained this itemization:
Next Payment Due Date: 11/01/2012
Total Monthly Payments Due for 46 months: $60,219.06
Principal: $12,749.77
Interest: $31,497.63
Tax and Insurance (escrow) $15,971.66
Late Charges: $432.81
Other Charges: Uncollected NSF Fees: $0.00
Other Fees: $0.00
Corporate Advance Balance: $2,638.32
Unapplied Balance: ($0.00)
_______
TOTAL YOU MUST PAY TO CURE DEFAULT: $63,290.19
Pl.'s Ex. 7 at 2.
Ms. Jones points out that the $2,638.32 for a "Corporate Advance Balance" appears to be attorney's fees and other costs that U.S. Bank incurred in 2015 and 2016 to clear up its title following assignments of the loan from other lenders. She insists that U.S. Bank had no right to charge her for those expenses, a contention U.S. Bank never refuted at trial and conspicuously ignored in its post-trial memoranda. See Trial Tr. at 42:20-47:14 (ECF No. 33). Because U.S. Bank never offered an explanation or response to Ms. Jones' challenge to that line item, the Court finds that the Corporate Advance Balance charge was in error.
Blocking a lender's foreclosure based on a mathematical or accounting error may be harsh to the mortgagee in some cases. But the Maine Supreme Judicial Court has taken a rigid approach to signal to lenders, servicers, and their attorneys that they must be thorough and meticulous when pursuing foreclosures in order to prevent a claim-preclusive judgment in favor of the borrower. See Fed.
Maine's courts might adopt a de minimis or harmless error exception in the future, but the Court need not guess at that possibility in this case. In Lowell, the Maine Supreme Judicial Court found a demand letter defective because a reader could have interpreted its language as requiring a payment that was $2,267 more than actually required in order to cure the borrower's default. Lowell, 2017 ME 32, ¶¶ 19-21, 156 A.3d 727. Here, U.S. Bank's inclusion of the fee was unambiguous, and its overstatement was roughly $400 more than JPMorgan's in Lowell.
Accordingly, Ms. Jones is entitled to judgment on U.S. Bank's foreclosure claim.
U.S. Bank argues that even if it is not entitled to foreclose on the property, it is still entitled to judgment on its underlying contract claims against Ms. Jones. Ms. Jones argues that U.S. Bank failed to establish the amount due under the Note and Mortgage because its summary table and spreadsheet of transactions were not properly admitted into evidence. The dispute implicates the rules of authentication and written evidence, FED. R. EVID. 901, 1001-03, and hinges on the scope of the business records exception, id. 803(6), to the rule against hearsay evidence. Id. 801(c), 802.
Federal Rule of Evidence 901 requires proponents to "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Id. 901(a). When the evidence is a writing, the so-called "best evidence rule" requires the
Ms. Lopez testified that she reviewed the records for Ms. Jones' mortgage, Trial Tr. 28:9-16, and she identified Plaintiff's Exhibit 8 as the account summary and payment history. Id. 25:19-26:3. That is sufficient to satisfy the authentication requirements of Rule 901.
As a computer printout of a database, Plaintiff's Exhibit 8 is an original, not a copy. FED. R. EVID. 1001(d) ("For electronically stored information, "original" means any printout"); MARK S. BRODIN, JOSEPH M. McLAUGHLIN, JACK B. WEINSTEIN & MARGARET A. BERGER, WEINSTEIN'S FED. EVID. § 1001.11[4] (Second ed. 2018) ("Computer printouts are originals when offered to prove the content of data stored in a computer or similar device").
Even if Plaintiff's Exhibit 8 is somehow considered a copy, it meets the requirements of a "duplicate" of the original writing. FED. R. EVID. 1001(e). Ms. Jones cites no authority for her assertion that the proponent must produce testimony to satisfy Rule 1001's requirement that a "duplicate" be the result of a "mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original." Every time a party seeks to introduce a printout or photocopy they need not have a witness testify about the inner workings of inkjet or laser printer technology. The duplicate "is admissible to the same extent as the original" because there is no genuine question about the authenticity of the original.
Accordingly, the Court rejects Ms. Jones' authenticity and "best evidence" arguments and proceeds to analyze the admissibility of the document under the hearsay rules.
The Federal Rules of Evidence generally prohibit parties from introducing any out of court assertion offered for the truth of the matter asserted, unless an exception applies. Id. 801(c), 802. To be admissible under the business records exception, the record must satisfy Rule 803(6), which provides that "[a] record of an act, event, condition, opinion, or diagnosis" is not excluded by the rule against hearsay if it satisfies five requirements. Id. 803(6). The first three requirements are that "the record was made at or near the time by — or from information transmitted by — someone with knowledge"; that "the record was kept in the course of a regularly conducted activity of a business ..."; and that "making the record was a regular practice of that activity." Id. 803(6)(A)-(C). The fourth requirement of Rule 803(6) is that the first three conditions "are shown by the testimony of the custodian or another qualified witness, or by a certification that complies
Ms. Jones argues that Ms. Lopez could not testify as to the accuracy of the records because the loan boarding process occurred prior to her employment with Caliber. This argument fails because it conflates the "person with knowledge" requirement of Rule 803(6) with the "custodian or other qualified witness" requirement of the rule. The record custodian or other qualified witness does not have to be the individual with personal knowledge of the event or the one who created the business record. Wallace Motor Sales, Inc. v. Am. Motors Sales Corp., 780 F.2d 1049, 1061 (1st Cir. 1985). If the witness had to be employed during the creation of the document, "no business could ever admit a business record under Rule 803(6) that had been created before the hiring date of its most senior employee, a proposition that is nonsensical." See O'Leary v. InfraSource Transmission Servs. Co., 758 F.Supp.2d 9, 12 n.7 (D. Me. 2010).
Ms. Jones points out that Caliber's late charges total $432.81 in its demand letter but total $1442.70 in one of its later spreadsheets, even though the charges should cover the same period. The problem with Ms. Jones' argument is that the demand letter was sent on August 3, 2016, and that particular spreadsheet, Def.'s Ex. 1, was created on September 13, 2017. The simple explanation is that the figure in the spreadsheet includes late charges that accrued after the demand letter. U.S. Bank is not entitled to charge late fees after sending the demand letter, a fact it acknowledged and rectified by dropping all late charges from its claim. But the fact that U.S. Bank included some late fees to which it was not entitled on September 13, 2017 does not undermine the trustworthiness of the spreadsheet of transactions.
Ms. Jones points out a discrepancy between the per diem interest rates on Caliber's spreadsheets, Pl.'s Ex. 8, Def.'s Ex. 1, and a letter from a previous servicer, Seterus. Def.'s Ex. 2. On Caliber's spreadsheets, dated September 13, 2017 and November 1, 2017, the per diem interest is $23.42, Pl.'s Ex. 8, Def.'s Ex. 1 at 1, while Seterus' letter, dated December 11 and 16, 2012, contains a per diem interest statement of $23.46. Def.'s Ex. 2 at 4.
Contrary to Ms. Jones' assertions, this $0.04 discrepancy does not undermine the trustworthiness of Seterus and Caliber's record-keeping systems. The per diem interest calculation appears to be a straightforward multiplication of the principal balance and the annual interest rate, divided by the number of days in a year, 365. This calculation gives a snapshot of the interest accruing on a debt in a given day. That snapshot, however, is only useful for a narrow time period, because the per diem calculation will change as the principal balance changes. In December 2012, an interest rate of 5.50% and a principal balance of $155.657.49 yields a per diem interest amount of $23.458. In November 2017, an interest rate of 5.50% and a principal balance of $155,409.02 yields a per diem interest amount of $23.418. In short, the per diem numbers represent different calculations,
Ms. Jones also alleges that the interest totals for the period of default are mathematically incorrect because they are odd numbers when they should be even multiples of the even per diem interest amount. Def.'s Br. at 5-6; Def.'s Reply at 3. Defense counsel cleverly pointed out that an even per diem number multiplied by any whole number of days, will only yield an even interest total. But counsel was too clever by half. In this case there are two flaws in what is otherwise a generally irrefutable proposition. First, as just indicated, the per diem figure of $23.42 is the result of rounding to two decimal places. That means an odd number could result from the multiplication of the per diem figure and a whole number, depending on when Caliber's system rounded the numbers. Second, the per diem figure is only a snapshot of the interest accruing on a loan at a particular time. As a result of compounding interest and changes in the principal balance during the course of the default period, the actual interest accrued over the default period will not equal a simple multiplication of the number of days in the period and the per diem figure for the end of that period.
The Court finds no discrepancies in the interest figures.
Plaintiff's Exhibit 8 contains Caliber's account summary and spreadsheet of transactions for Ms. Jones' loan, which it took over as servicer on November 15, 2014. Trial Tr. 26:19-21. The entries before that date were created by other entities, which appears to have included two other servicers, Seterus and Bank of America. The records from those entities were "boarded," or transferred, from those entities' databases to Caliber's system. Id. at 26:22-28:2.
Since much of the information U.S. Bank seeks to introduce was actually created by other businesses, this presents a double or triple hearsay problem. Ordinarily, when a party seeks to introduce a statement containing multiple layers of hearsay, "[e]ach link in the chain must be admissible, either because it is an admission and thus not hearsay or under some other hearsay exception." Vazquez v. Lopez-Rosario, 134 F.3d 28, 34 (1st Cir. 1998). Under this logic, courts refuse to admit portions of a business's records because they were originally created by outsiders to that business, unless the underlying statements themselves qualify under an exception:
United States v. Patrick, 248 F.3d 11, 22 (1st Cir. 2001); see also Belber v. Lipson, 905 F.2d 549, 552 (1st Cir. 1990) ("The mere custody by Conway of the medical records of another doctor does not incorporate them into Conway's business records. Conway had no personal knowledge about the records. He neither created the records nor did he testify about the circumstances of their composition") (internal citations omitted).
The Maine Supreme Judicial Court, under its nearly identical rule of evidence, rejected the "integrated" business records exception in similar cases:
Quint, 2017 ME 237, ¶ 19, 176 A.3d 717. Under current Maine law:
Deutsche Bank Nat'l Tr. Co. v. Eddins, 2018 ME 47, ¶ 12, 182 A.3d 1241 (internal quotations and citations omitted).
The First Circuit has not provided an unambiguous answer to the question. "Whether a third party's records ... can be integrated into the records of the offering entity ... for purposes of admission under the business records exception is not an issue upon which this circuit has reached a uniform conclusion." United States v. Savarese, 686 F.3d 1, 12 (1st Cir. 2012). Two cases support the "integrated" business records approach, F.T.C. v. Direct Marketing Concepts, Inc., 624 F.3d 1, 17 n. 15 (1st Cir. 2010) and United States v. Doe, 960 F.2d 221, 223 (1st Cir. 1992), but others counsel against a special exception. See United States v. Vigneau, 187 F.3d 70, 75-77 (1st Cir. 1999) (declining to follow Doe and suggesting that Doe "overlooked" the normal "outsider" rule that is "well-settled in this circuit," and justifying the usual "outsider" rule because "no ... safeguards of regularity or business checks automatically assure the truth of a statement to the business by a stranger to it....") (internal citation omitted).
Financial institutions and servicers have an obvious incentive to accurately document transactions and maintain reliable records to account for the status of their loans and to preserve their ability to collect debts in the event of default. While each servicer might not independently investigate the entire transaction history, Ms. Lopez testified that Caliber's acquisition department took steps to review the previous 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. See e.g. Trial Tr. 59:22-25, 60:17-19.
Finally, Rule 803(6) applies only if "the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness." FED. R. EVID. 803(6); Monty, 2015 WL 6441725, at *6, 2015 U.S. Dist. LEXIS 143834, at *18. Here, Ms. Jones has not produced any evidence that the integrated records are untrustworthy. The Maine Supreme Judicial Court approach in Deutsche Bank makes eminent sense if the opponent of admission has raised issues under Rule 803(6)(E) that "would require the testimony of a person of both businesses' regular practices to demonstrate the reliability and trustworthiness of the information." Eddins, 2018 ME 47, ¶ 12, 182 A.3d 1241. Absent such a showing, the Court's view is that the integrated bank records are sufficiently reliable for admission based on the unrebutted testimony of Ms. Lopez.
A focus on financial reliance and other indicia of trustworthiness for integrated
FED. R. EVID. 807(a).
The portions of Caliber's spreadsheet containing entries originally created by other servicers satisfy the elements of the residual exception. As just explained, Caliber's accuracy checks, incorporation, and financial reliance are equivalent circumstantial guarantees of trustworthiness. That is particularly true where, as here, the borrower does not dispute the transaction history by claiming overbilling or unrecorded payments. Ms. Jones' only arguments about the trustworthiness of the records were sharp but ultimately unsuccessful attempts to poke immaterial holes. The amount due is a material fact for contract claims, and the records are perhaps the only probative evidence Caliber can offer to prove that material fact. Finally, admitting the spreadsheet entries serves the purposes of the Rules of Evidence and the interests of justice. There is no real question here but that Ms. Jones took out a loan from U.S. Bank's predecessor and that she has not paid the loan in accordance with its terms.
The Court finds the financial records meet the requirements for admissibility under both Rule 803(6) and Rule 807 and are reliable and unrebutted. Accordingly, U.S. Bank is entitled to judgment on its underlying contract claims.
In Count VI of Plaintiff's Complaint, U.S. Bank sought to reform its mortgage deed because it inadvertently used an old legal description, instead of a new description that had been memorialized in a corrective warranty deed. Compl. at 10-11. The parties confirmed that they agree that the mortgage deed should be reformed to reflect the correct legal description.
The Court GRANTS judgment in favor of the Defendant, Julia L. Jones, on Count I, and GRANTS judgment in favor of the Plaintiff, U.S. Bank, on Counts II, and III in the amount of $226,458.28.
The Court also GRANTS judgment in favor of the Plaintiff, U.S. Bank, on Count VI and ORDERS that the mortgage deed in this case be reformed to include the complete legal description set forth in Exhibit A of Plaintiff's Complaint.
SO ORDERED.
Megan Wachspress, et al., Comment, In Defense of "Free Houses," 125 Yale L.J. 1115, 1115-16 (2016). This Court expresses no opinion on the future effect of this judgment.
Eddins, 2018 ME 47, ¶ 11, n.5, 182 A.3d 1241 (quoting ME. R. EVID. 803(6)). Federal Rule of Evidence 803(6) reads:
FED. R. EVID. 803(6)(E).
The slightly different language seems to reflect a different allocation as to whether the proponent of the record bears the burden of showing trustworthiness or the opponent bears the burden of showing a lack of trustworthiness. In Bank of America, N. A. v. Barr, 2010 ME 124, 9 A.3d 815, the Maine Supreme Judicial Court wrote:
Id. ¶ 8 (citing State v. Nelson, 2010 ME 40, ¶ 9, 994 A.2d 808); but see RICHARD H. FIELD & PETER L. MURRAY, MAINE EVIDENCE at 430 (2000 ed.) ("The Federal Rule is substantively the same as the Maine Rule with respect to subparts 1-7 ....").
At the same time, the rationale for Maine's stricter interpretation of the business record exception appears to be the Maine Supreme Judicial Court's concern about double hearsay. Beneficial Maine Inc. v. Carter, 2011 ME 77, ¶¶ 15-17, 25 A.3d 96. By contrast, the federal courts are slightly more relaxed when the business records are "integrated." The Court does need to resolve whether the distinct burden allocations make a meaningful difference in the contrasting state and federal approaches to their interpretations of the respective versions of Rule 803(6) because as a federal court, the procedural federal, not state, rules of evidence must apply.
