237 A.3d 167
Me.2020Background:
- Wilmington Trust filed a foreclosure complaint against Lisa Berry alleging default and seeking to collect on a mortgage note.
- At bench trial Wilmington offered business records (screenshots of loan payment history) from multiple servicers; the records referenced a separate servicer, Marix Servicing, LLC.
- The servicer witness could not explain the Marix reference or identify Marix; the trial court admitted the records de bene but ultimately excluded them, finding the unexplained Marix reference undermined trustworthiness under M.R. Evid. 803(6).
- Wilmington presented a copy of a notice of default marked "First‑Class Mail" and a LenderLive transaction report, but did not produce a certificate of mailing; Berry testified she never received the notice and other occupants received mail at the address.
- The trial court found Wilmington failed to prove Berry received the statutorily required notice of default and right to cure, entered judgment for Berry, and awarded Berry attorney fees under 14 M.R.S. § 6101; Wilmington’s post‑trial motions were denied and it appealed.
- The Maine Supreme Judicial Court affirmed: business records exclusion was not an abuse of discretion and the court’s finding that Berry did not receive proper notice was not clearly erroneous; the fee award was within the court’s discretion under § 6101.
Issues:
| Issue | Plaintiff's Argument (Wilmington) | Defendant's Argument (Berry) | Held |
|---|---|---|---|
| Admissibility of business records under M.R. Evid. 803(6) | Laid proper foundation via qualified witness; Marix reference affects weight only | Unexplained Marix reference and witness ignorance show records untrustworthy | Exclusion affirmed; trial court reasonably found lack of trustworthiness and did not clearly err or abuse discretion |
| Proof of service/receipt of notice of default and right to cure under 14 M.R.S. § 6111(3) | Offered transaction report and first‑class mail copy; mailing supports presumption of receipt | No certificate of mailing; Berry credibly denied receipt and cited multiple occupants at address | Wilmington failed to prove receipt; credibility finding supported and not clearly erroneous |
| Award of attorney fees to mortgagor under 14 M.R.S. § 6101 | Fees not required absent bad faith; Wilmington did not act in bad faith | § 6101 permits award when mortgagee does not prevail | Fee award affirmed; court did not abuse discretion because Berry prevailed and statute allows fees when mortgagee does not prevail |
Key Cases Cited
- Bank of Am., N.A. v. Greenleaf, 96 A.3d 700 (Maine 2014) (elements required to support foreclosure judgment)
- M & T Bank v. Plaisted, 192 A.3d 601 (Maine 2018) (standard for foundation under business records exception)
- Avis Rent A Car Sys., LLC v. Burrill, 187 A.3d 583 (Maine 2018) (purpose and witness requirements for business records exception)
- HSBC Mortg. Servs., Inc. v. Murphy, 19 A.3d 815 (Maine 2011) (factors for evaluating trustworthiness of business records)
- Ocean Communities Fed. Credit Union v. Roberge, 144 A.3d 1178 (Maine 2016) (certificate of mailing constitutes conclusive proof of receipt)
- Homeward Residential, Inc. v. Gregor, 165 A.3d 357 (Maine 2017) (standard of review and prevailing‑party analysis for fee awards)