144 A.3d 1178
Me.2016Background
- Ocean Communities Federal Credit Union sued Guy R. Roberge (and co-mortgagor Lisa Pombriant) in District Court for residential foreclosure on a Biddeford property based on a 2008 HELOC note and mortgage.
- Credit Union moved for summary judgment, supporting its statement of facts chiefly with two affidavits: Claude Morgan (collections manager) attaching the note, mortgage, and notice of default; and attorney William Gallitto, who referenced law‑firm records not attached.
- The District Court entered summary judgment for the Credit Union for $144,998.97; Roberge appealed, arguing the Credit Union failed to meet Rule 56 requirements for foreclosure.
- The Supreme Judicial Court reviewed de novo whether the summary judgment record showed undisputed facts establishing the eight foreclosure elements required for judgment as a matter of law.
- The Court found multiple deficiencies: Gallitto’s affidavit referenced unattached law‑firm records (so could not establish priority); Morgan’s affidavit relied on business records but attached only limited documents and did not support breach, amount due, attorney fees, or certified‑mail receipt timing for notice.
- Because at least four of the eight required foreclosure elements were not properly established in the summary judgment record, the Court vacated the judgment and remanded for trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Credit Union met Rule 56 evidentiary/formal requirements for summary judgment | Affidavits of Morgan and Gallitto plus attached documents suffice to establish elements | Affidavits and record do not meet Rule 56(e)/(h) and business‑records foundational requirements | Court: Credit Union failed to comply with Rule 56; summary judgment vacated |
| Admissibility of business records (foundation & attachments) | Morgan and Gallitto attested to personal knowledge of records, so records are admissible | Affidavits relied on records not attached or lacking foundation showing custodian/qualified witness | Court: Where affidavits refer to business records, those records must be attached and foundation shown; Credit Union did not satisfy this |
| Proof of breach and amount due (payment history, calculations, fees) | Morgan’s affidavit establishes default and amount owed | Affidavit cites only original note/mortgage (no payment history) and offers no supporting records for calculations or legal fees | Court: Morgan’s submissions do not establish breach or amount due; unsupported figures inadmissible |
| Notice of default compliance with 14 M.R.S. §6111 (timing via certified/ordinary mail) | Attached notice of default indicates both certified and ordinary mail were used | No certified‑mail receipt or proof of date of delivery/receipt included in summary‑judgment record | Court: Credit Union failed to prove notice was "given" as defined; evidence not in summary‑judgment record |
Key Cases Cited
- HSBC Bank USA, N.A. v. Gabay, 28 A.3d 1158 (Me. 2011) (strict Rule 56 compliance in foreclosure; record references required)
- Beneficial Me., Inc. v. Carter, 25 A.3d 96 (Me. 2011) (affidavits must show competence and admissible facts)
- HSBC Mortg. Servs., Inc. v. Murphy, 19 A.3d 815 (Me. 2011) (business‑records foundation and qualified witness requirements)
- Cach, LLC v. Kulas, 21 A.3d 1015 (Me. 2011) (affidavit referring to unattached records cannot establish assignment or supporting fact)
- Arrow Fin. Servs., LLC v. Guiliani, 32 A.3d 1055 (Me. 2011) (undeveloped statements of material facts unsupported by record are insufficient)
- Homeward Residential, Inc. v. Gregor, 122 A.3d 947 (Me. 2015) (custodian or qualified witness needed for business records)
- Bank of Am., N.A. v. Greenleaf, 96 A.3d 700 (Me. 2014) (business‑records foundational elements explained)
- Richards Realty Co. v. Inhabitants of Town of Castle Hill, 406 A.2d 412 (Me. 1979) (affidavit must show circumstances supporting affiant’s firsthand knowledge)