THE BANK OF NEW YORK MELLON v. DANIELLE SHONE et al.
Docket: Cum-19-48
MAINE SUPREME JUDICIAL COURT
Decided: October 22, 2020
Decision: 2020 ME 122
Argued: March 2, 2020
Pаnel: 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.
[¶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
I. BACKGROUND AND
[¶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 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
[¶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.
[¶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
[¶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, 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 thеir own business operation in a way that establishes
[¶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 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 аnd 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 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 testimony by a witness with personal knowledge of the sending
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.
[¶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 (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).
[¶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, 2011 ME 77, 25 A.3d 96, decided twenty-seven years after Soley, and nineteen years after Leen.5
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 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.
[¶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
[¶24] Rule 803(6) was restyled in 2014 and thеn amended in 2018 to align with its federal counterpart. See
[¶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
[¶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 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
[¶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.”
[¶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 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 Cоurt 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.
[¶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
[¶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 thе Court‘s decision wrongly strays into its discrete regulatory rulemaking function.
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
[¶ 35] In its opinion, the Court states that an integrated business record is admissible pursuant to
[¶ 36] It is manifest that the standard that the Court now adopts is materially different from the criteria prescribed in controlling Maine case law. 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
[¶ 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
[¶ 39] The entire body of the Maine Rules of Evidence was restylеd 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
[¶ 40] When we first considered and applied restyled
[¶ 41] Similarly, in Deutsche Bank National Trust Co. v. Eddins, another foreclosure case involving an integrated business record where the restyled version of
[¶ 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
[¶ 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
[¶ 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
[¶ 45] Notwithstanding the interpretation of
[¶ 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
[¶ 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
[¶ 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 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
[¶ 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);
[¶ 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 “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
[¶ 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 (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 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 2002 in State v. Radley, 2002 ME 150, 804 A.2d 1127, see supra nn.11, 14, and we havе 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
rule (although, as is evident from the cases I review above, mortgagees sometimes have difficulty at trial meeting the standards prescribed in
[¶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
[¶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 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.”
[¶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
[¶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 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
[¶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
[¶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
[¶65] When promulgating or amending rules of court, the Court invokes and exercises authority in its capacity as the Supreme Judicial Court. See
[¶66] I have no quarrel with the suggestion that it may be beneficial to reexamine the way
[¶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
[¶68] The trial court correctly applied
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
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
Notes
(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.
- The record was made at or near the time by—or from information transmitted by—someone with knowledge;
- The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
- Making the record was a regular practice of that activity;
- All these conditions are shown by the testimony of the custоdian or another qualified witness, or by a certification that complies with
Rule 902(11) ,Rule 902(12) or with a statute permitting certification; and - The opponent does not show that the source of information or the method or circumstances of preparation indicate a 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.“made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conductеd 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.”