First Fed. Sav. and Loan Ass'n of Bath V. Geaghan
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ST~-\TE 0 F J\L-\INE Sagadahoc, ss. FIRST FEDEIL-\.L S"-\. \TINGS "-\.ND LO~\.N "\SSOCL\ TION OF B"-\TH Plaintiff, ORDER ON MOTION FOR SUMMARY JUDGMENT Y. TERR.\NCE H. GEAGf-L-\.N Defendant, The plaintiff moves for sumr11ary judgnl.ent in an action for foreclosure brought pursuant to 14 :i\I.R.S.A § 6321, et seq. Regardless of whether the defendant has flled an objection, this motion is subject to Rule 560), which imposes detailed requirements for granting summa1T judgment in foreclosure actions. l\LR. Ci1r. P. 560). 1 The court has an independent obligation to ensure compliance with this rule. J\.f.R. Civ. P. 560) advisory committee's note to 2009 arnend. 2 l\I.R. Civ. P. 560) states: No summarv Judgment shall be entered in a foreclosure action filed pursuant to Title 1-J., Chapter 713 of the Maine Revised Statutes except after review bv the court and determination that (i) the service and notice requirements of 1-1-l\I.R.S. § 6111 and these rules have been strictlv performed; (ii) the plaintiff bas properlv certified proof of ownership of the mortgage note and produced e1·idence of the mortgage note, the mortgage, and all assignments and endorsernents of the mortgage note and the mortgage; and (iii) mediation, when required, has been completed or has been waived or the defendant, after proper service and notice, has failed to appear or respond and bas been defaulted or is subject to default. 2 The "-\dYisorv Committee note states: This amendment to Rule 56 is designed to assure that, prior to entry of any sunuTlat"")' judgrnent in a foreclosure action, the trial court reviews the record and determines that, as required by law, the notice and service requirem.ents of law· have been complied \vith and any available mediation has been con1pleted or has been wai,·ed. ~f.R. Ci,-. P 56(j) ad,·isory conunittee's note. 1 1 The court must also determ.ine if the mortgage holder has set forth in its statement of material facts the minimum facts necessan· for sunl.nlan· judgment in a residential mortgage foreclosure. Clw.1e Home t'!;wni"e LLC 11. [-/zggln.i, 2009 I'viE 136, ,J11, 985 _A.2d 508. It is not sufficient that the record contains all of the required information; the facts must be specificalh· stated in the statement of material facts and supported by proper record references. /-/JBC Ba11k [_TJ/1, N./1. JJ. Gabay, 2011 ME 101, ,J1Ci, 28 A.3d 1158. "The court shall ha,·c no independent duty to search or consider anr part of the record not specifically referenced in the parties' separate statement of facts." j\J.R. Civ. P. 56(h)(4); .1ee a/10 C/){.f.\e /-lome Finance LLC JJ. [-/zgginJ, 2009 ME 136, ~ 12 n. 4, 985 A2d 508 (citing Lmne Caly Cf!lp., .::!001 j\.fE 77, ,]5, 770 A.2d653); f-ISBC Bank UJ/1, N./1. 11. JJ. R.B.K Gabc!J!, 2011 ME 101, ,J17, 28 A3cll158. The court denies the Plaintiffs motion on the following grounds unless additional materials arc submitted in accordance with the order stated below: Plaintiff's Affidavit in SuJ2port of the Motion for Summary Judgment The Plaintiffs affidavit in support of the motion is deficient in laying a proper foundation for the admission of business records over the hearsay objection. In order to admit such records into evidence, the custodian of the records or other qualified witness must establish (1) that the record was made at or near the time of the events reflected in the record bv, or from information transmitted by, a personal with personal knowledge of the events recorded therein; (2) that the record was kept in the course of a regularly conducted business; (3) that it was the regular practice of the business to make records of the type im·okcd; and (4) that there is no lack of trustworthiness from the source of information from \vhich the record was made or the method or circumstances under which it was 2 prepared. See l-/SBC i\.lor(gage S emiceJ, Inc. JJ. Mmpb)', 2011 "!\IE 59, ~ 1 0, 19 ~A.3d 815; l\LR. £,-id. 806(3). The Plaintiffs affida,-it of Andrc\v C. Perrr does not tTleet this standard. [\lthough Perry swears that the records are under his custody and control, he docs not provide the court an)- indication that the records were made at or near the time of the events, rnade by or from infonTJ.ation transmitted by a personal with personal knowledge of the events, nor that it was the regular course of business to make such records. \vithout a proper foundation the business records attached to the Perry affidavit constitute inadrn.issible hearsay and cannot be used b\- the Plaintiff to support its statements of rnaterial fact. Attorney's Affidavit in Sup:port of the Motion for Summa~Judgment Some of the Plaintiffs staternents of tTJ.aterial fact include record citations to an affidaYit made bv attorney Zachary I. Greenfield. That affidavit states that Attorney Greenfield's "knmvledge of the facts set forth in this affidavit is derived from records IIJ.ade in the ordinary course of business of i\Ionaghan Leahy, LLP, and it is the regular practice of Monaghan Leahy, LLP, to tTlake these records." (Greenfield Aff. ,]1.) Sinwar to the Perry affidavit, this statement does not lay a sufficient foundation for records to be admissible .. ( m·er the hearsay rule. Because the affiant does not state that any of the facts set forth in the affidaYit are based on personal knowledge, none of the statements in the affidavit rnay be used as support for the Plaintiffs statem~ents of material fact. Service and Mediation The court notes that statement of m.aterial fact, paragraphs 14 and 15, indicate that the Plaintiff complied with the requirements of 14 "!\.I.R.S.§ 6321-I\(2) and M.R. Ci,-. P. 9 3( c) (4). Hmvenr, the cited affidavit is insufficient to support these facts. Breach 3 The Plaintiff supports the fact that failure to pay is a breach of a condition of the mortgage with a citation to the mortgage document and the Plaintiff's affidavit. The mortgage is hcarsa1· because of the failure of the affidavit to lay a proper foundation for the business records e:-::ception. [\lso, the plain assertion in the affidavit that there was a failure to pm· is not sufficiently supported. \X!here the affiant's knowledge is derived from the business records, the business records showing the fact must be a ttachecl. Amount Due The arnount clue stated in paragraph 9 of the statem.ent of material facts is not supported b-r the record citation because there are no records attached to the Plaintiff's affidavit demonstrating that this is the alTlount owed on the Note. The Plaintiff's affidavit states that all the facts set forth therein are based on the affiant's knowledge derived from those records. ,\ssuming that the Plaintiff can establish a proper foundation for the admission of business records, it nl.ust attach those records in order for that eYiclence to be admitted. The [\ttornev ""\ffidavit submitted in support of the attorney's fees and costs also does not include the records on which the affiant relies. The Plaintiff's statement of material facts states that the Defendant is not a minor, incompetent, or person in military service (Jee SMF ,r 16), but the citation to the record does not support this statement. First, the Perry affidavit purports to be based solely on the business records kept in connection with the subject loan but there is no business record attached to the affidavit regarding the Defendant's status as a minor or incompetent person. Second, the affidavit does attach a document regarding the Defendant's status as a military person but, even if the affidavit did properly lay the "foundation for the business records exception, this document is not a business record of the Plaintiff. [\ccording to the affiant 4 and the document itself, it is a record maintained by the United State Departm.ent of Defense i\Ianpmver Data Center. Furthermore, as J\LR. Civ. P. 550))(4) states, the affidm'it shmving that the defendant is not in military sen-ice must be "on the affiant's O\vn knowledge." \vhile the document submitted is evidence of a defendant's status in rnilitary service, and may well setTe as a basis of an affiant's knowledge, the affidavit in this case does not purport to be based on the affiant's actual knowledge . . \ccord111gh·, the Court ORDERS that the Plaintiff lTlay submit further evidence and doculTlentation by affidavit and additional Rule 56(h) statements within 30 days of the date of this Order, to which the defendant ma:; respond. If nothing further is received, the i\Iotion is DENIED. The Plaintiff is also directed to submit a revised proposed Judgment that complies with 14 J\LR.S.A. §2401 (3). Specifically, the inform.ation contained on page 4 of the proposed judgnl.ent, including the statement that all parties received notice pursuant to 14 j'vLR.S. § 2401, the names and addresses of the parties and their counsel, and the description of the real estate involved, should be contained in the judgment above the signature of the judge. Th1s page of the proposed judgment is not labeled as an exhibit and there is no reference to an exl1ibit within the proposed judgment, therefore, as drafted it is not part of the judgment. The Clerk is directed to incorporate this Order into the docket by reference pursuant to l\LR Civ. P. 79(a). "-\. j\L Horton Justice, Superior Court 5 FIRST FEDERAL SAVINGS AND LOAN ASSOC OF BATH - PLAINTIFF Attorney for: FIRST FEDERAL SAVINGS AND LOAN ASSOC OF BATHARY I GREENFIELD - RETAINED 05/02/2011 MONAGHAN LEAHY LLP 95 EXCHANGE ST PO BOX 7046 PORTLAND ME 04112-7046 vs TERRANCE H GEAGHAN PO BOX 292 BATH ME 04530 - DEFENDANT SUPERIOR COURT SAGADAHOC, ss. Docket No BATSC-RE-2011-00010 DOCKET RECORD
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