[¶ 1] Timothy G. and Kathleen A. Carter appeal from a summary judgment entered in the District Court (Biddeford, Foster, J.) in favor of Beneficial Maine Inc. on its foreclosure complaint. The Carters challenge the foundation presented by Beneficial to support the admissibility of its mortgage records pursuant to the business records exception to thе hearsay rule. See M.R. Evid. 803(6). Beneficial relied on the affidavit of an employee of a separate business to support its motion for summary judgment. Because that affidavit was inadequate to establish the admissibility of the purported business records, we vacate the summary judgment and remand the matter for further proceedings.
I. BACKGROUND
[¶ 2] On November 4, 2009, Beneficial filed a complaint for foreclosure against the Carters in the District Court. See 14 M.R.S. § 6321 (2010). Beneficial alleged that the Carters had defaulted in payment on their promissory note to Beneficial, which was secured by a mortgage on certain real property in Kennebunk owned by the Carters. 1
[¶ 3] After the parties were unable to resolve the case through mediation, 2 Beneficial moved for summary judgment and submitted a statement of material facts. See M.R. Civ. P. 56(h)(1). In support of its statement of material facts, Beneficial referred to two affidavits — one from Beneficial’s attorney, which clarified the priority of the Carters’ creditors, and one from Shana Richmond, Vice Prеsident of Administrative Services for HSBC Consumer Lending Mortgage Servicing, described in the affidavit as Beneficial’s “servicer.” Beneficial cited to Richmond’s affidavit, with its attached exhibits, as the sole evi-dentiary support for its allegations of its ownership of the note and mortgage, the Carters’ obligation on the note, the Carters’ default, and the amount that the Carters owed. Richmond’s affidavit states the *99 following as the foundation for her factual assertions:
The Bank [Beneficial] is the holder of the note and mortgage.... I have access to the records relating to the mortgage transactions with respect to said note and mortgage. My knowledge as to the facts set forth in this affidavit is derived from my personal knowledge of this аccount and of the records of this account, which are kept in the ordinary course of business by the Bank and which were made at or near the time of the transactions by, or from information transmitted by, a person with knowledge of the facts set forth in said records. These records are kept in the ordinary course of business, pursuаnt to the company’s regular practice of making such records. The exhibits attached hereto are true copies of the original documents.
[¶ 4] The Carters objected to the admissibility of the Richmond affidavit and the attached exhibits on the grounds that they constituted hearsay and that Beneficial had not established a foundation for application of the business records exception. The court entered summary judgment in the bank’s favor on its foreclosure complaint. The Carters appealed. See 14 M.R.S. § 1901(1) (2010); M.R.App. P. 2.
II. DISCUSSION
[¶ 5] We recently addressed the foundational elements that must be established for a court to consider a business record on summary judgment in a foreclosure proceeding.
See HSBC Mortg. Servs., Inc. v. Murphy,
A. Summary Judgment in Foreclosure Proceedings
[¶ 6] We review a court’s entry of summary judgment de novo, viewing the facts in the light most favorable to the party against whom summary judgment was entered.
See Murphy,
[¶ 7] Beneficial attempted to support its statement of material facts with the affidavit of Shana Richmond, an individual who was not Beneficial’s employee. The cursory reference in Richmond’s affidavit to her knowledge of the critical issues— how Beneficial creatеd, maintained, and produced the records — prompts us to clarify the foundation of knowledge that a non-employee must possess to be a “qualified witness” to lay the foundation for a business record, M.R. Evid. 803(6), in an affidavit to support summary judgment in a foreclosure action, M.R. Civ. P. 56(j).
[¶ 8] In reviewing the adequacy of the affidavit presented in this cаse, we (A) discuss our standard of review for the challenged ruling, (B) summarize the foundational elements and knowledge required for an affiant to establish the admissibility of a business record, and (C) review the adequacy of the affidavit presented by Beneficial to determine whether summary judgment was appropriate in this case.
B. Standard of Review on Summary Judgment
[¶ 9] In the past, we hаve reviewed courts’ consideration of business records on summary judgment for an abuse of discretion.
See Estate of Davis,
[¶ 10] Because we review the summary judgment record de novo in the light most favorable to the nonprevailing party, and because the evidence relied on at summary judgment must be of a quality that would be admissible at trial, we follow our bifurcated standard of review from
Barr
to determine (1) whether competеnt undisputed evidence, properly referenced in the statements of material facts, supports the foundational facts required for admissibility of the asserted business records; and (2) if those facts are supported, whether the court abused its discretion in considering the evidence.
See id.; see also
M.R. Civ. P. 56(e); M.R. Evid. 803(6). If necessary foundational elements fоr admission of a business record are not supported by competent undisputed evidence in the summary judgment record, that business record may not be considered on summary judgment.
See
M.R. Civ. P. 56(e);
see also Smith v. Burlington N. & Santa Fe Ry. Co.,
[¶ 11] If we conclude that specific documents presented in support of summary judgment lacked the necessary foundation to be admissible as business records or that the court abused its discretion in considering them, we review de novo whether, in the absence of those records, there are sufficient undisputed facts to entitle the
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moving party to judgment as a matter of law.
See Murphy,
C. Business Records Exception to the Hearsay Rule
[¶ 12] Hearsay, defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,” M.R. Evid. 801(c), is inadmissible except as provided by lаw
4
or by the Maine Rules of Evidence,
see
M.R. Evid. 802. Pursuant to the Maine Rules of Evidence, a business’s record of acts or events is admissible as an exception to the hearsay rule if the necessary foundation is established “by the testimony of the custodian or other qualified witness.” M.R. Evid. 803(6);
5
see Murphy,
[¶ 13] The affiant whose statements are offered to establish thе 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,
[¶ 14] Such an affiant must demonstrate knowledge that
• the producer of the record at issue еmployed regular business practices for creating and maintaining the records that were sufficiently accepted by the receiving business to allow reliance on the records by the receiving business;
• the producer of the record at issue employed regular business practices for transmitting them to the receiving business;
• by manuаl or electronic processes, the receiving business integrated the records into its own records and maintained them through regular business processes;
• the record at issue was, in fact, among the receiving business’s own records; and
• the receiving business relied on these records in its day-to-day operations.
See Soley,
(1) the record was made at or near the time of the events reflected in the record by, or from information transmitted by, a person with personal knowledge of the events recorded therein;
(2) the record was kept in the course of a regularly conducted business;
(3) it was the regular practice of the business to make records of the type involved; and
(4) no lack of trustworthiness is indicated from the source of information from which the record was made or the method or circumstances under which the record was prepared.
Murphy,
D. Admissibility of Beneficial’s Records and Summary Judgment Review
[¶ 15] In the matter before us, Richmond was not an employee of Beneficial itself but of Beneficial’s “servicer,” HSBC. Although Richmond’s affidavit states that the records were kept by Beneficial in the ordinary course of business from information supplied at or near the time of the recorded events by a person with knowledge of those еvents, it does not provide any basis for Richmond’s personal knowledge of Beneficial’s practices. Richmond does not purport to be the custodian of the records, nor does she explain the source of her understanding of Beneficial’s
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“daily operation” or show the “firsthand nature of [her] knowledge.”
Murphy,
[¶ 16] Although it is possible that an employee of HSBC — perhaps even Richmond herself — may have personal knowledge of both entities’ practices for creating, maintaining, and transmitting the records, the affidavit does not report the basis for Richmond’s knowledge of (1) Beneficial’s practices for creating, maintaining, and transmitting the records at issue; (2) HSBC’s practices in obtaining and maintaining the bank’s records for HSBC’s own use; or (3) HSBC’s integration of the bank’s records into HSBC’s own records.
See Murphy,
[¶ 17] Beneficial presented no other evidence regarding the mortgage, the default, or the other elements set forth in
Chase Home Finance LLC v. Higgins,
The entry is:
Summary judgment vacated. Remanded for further proceedings.
Notes
. Beneficial asserted that the unpaid principal, interest, charges, and fees amounted to a total obligation of $378,803.43.
. Pursuant to M.R. Civ. P. 93, the parties participated in the Judicial Branch Foreclosure Diversion Program.
. The following, at a minimum, must be established for a mortgage holder to foreclose:
• the existence of the mortgage, including the book and page number of the mortgage, and an adequate description of the mortgaged premises, including the street address, if any;
• рroperly presented proof of ownership of the mortgage note and the mortgage, including all assignments and endorsements of the note and the mortgage;
• a breach of condition in the mortgage;
• the amount due on the mortgage note, including any reasonable attorney fees and court costs;
• the order of priority and any amounts that may be due to other рarties in interest, including any public utility easements;
• evidence of properly served notice of default and mortgagor’s right to cure in compliance with statutory requirements;
• after January 1, 2010, proof of completed mediation (or waiver or default of mediation), when required, pursuant to the statewide foreclosure mediation program rules; and
• if the homeowner has not appeared in the proceeding, a statement, with a supporting affidavit, of whether or not the defendant is in military service in accordance with the Servicemembers Civil Relief Act.
Chase Home Fin. LLC v. Higgins,
. The Legislature has, for instance, crafted certain limited exceptions to the inadmissibility of hеarsay. See, e.g., 22 M.R.S. § 4007(3-A) (2010) (providing that, absent a timely objection, the written report of a licensed mental health professional is admissible in a child protection proceeding, without the professional’s testimony, if that professional treated or evaluated the child who is the subject of the proceeding).
. The business records excеption is stated as follows in the Maine Rules of Evidence:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of regularly conducted business. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, 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 memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by cеrtification that complies with Rule 902(11), Rule 903(12) or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
M.R. Evid. 803.