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U.S. Bank, N.A. v. Lowell

Superior Court of Maine, Cumberland

June 11, 2014

U.S. BANK, N.A., Plaintiff
v.
PENNY LOWELL, Defendant

ORDER ON PLAINTIFF'S MOTION FOR FINDINGS OF FACT AND CONCLUSIONS OF LAW

Nancy Mills, Justice, Superior Court.

At trial on 3/4/14, the court determined plaintiff's witness, Harrison Whittaker, was not qualified to testify. See M.R. Evid. 803(6). Plaintiff was unable to proceed with its proof. The court entered judgment in favor of defendant.[1] See Order dated 3/4/14. Before the court is the plaintiff's motion for findings of fact and conclusions of law.

FINDINGS OF FACT

Harrison Whittaker testified as follows. He works for Ocwen Loan Servicing as a loan analyst. He reviewed the business records to prepare for his testimony at trial. As part of his responsibilities, he has access to Ocwen's business records and has responsibility with other employees to maintain the business records.

U.S. Bank, N.A.'s (U.S. Bank) business records pertaining to the mortgage are part of Ocwen's business records. A process is followed to incorporate U.S. Bank's business records into Ocwen's business records once an agreement is entered to take on a loan. This involves a many-step process after the documents are received from a servicer or entity. Once received, the information is verified though the prior servicer's records. Ocwen makes sure all the information is accurate and correct before the information is entered in the system. Correct and verified information entered in Ocwen's system becomes Ocwen's business records. If for some reason incorrect or inconsistent information is seen on the documents, the documents are sent back and they are not included as part of Ocwen's business records.

With regard to financial records and payment histories, Ocwen goes through the prior servicer and makes sure all numbers match exactly and everything is accurate. With regard to documents, a similar process is used. Ocwen reviews them to make sure the copies are correct and match. Ocwen verifies all the information Ocwen can verify through the prior servicer to make sure everything entered in the system is accurate and correct.

With regard to letters mailed by prior servicers or entities Ocwen is servicer for, Ocwen makes sure the communication was made by the prior servicer to verify the letters were sent before entering the letters in Ocwen's system. If Ocwen has a copy of the letter in the system, that means the letter went through the boarding process and has been verified to have been sent. Ocwen as a servicer reviews the business practices of the entity that is boarding documents to Ocwen in terms of maintaining the documents. If Ocwen feels the entities are not doing their diligence, Ocwen would not enter an agreement with the entity. In response to leading questions, Mr. Whittekar responded affirmatively that he and Ocwen are familiar with the business practices of Litton and records boarded by Litton are relied upon by Ocwen.

In preparation for his testimony, Mr. Whittaker reviewed Ocwen's business records and documents related to the case, including payment history, mortgage, note, assignment of mortgage, demand letter, power of attorney, the acquisition of Litton by Ocwen, and the Security and Exchange Commission filing. Mr. Whittaker answered " yes they are" in response to leading questions about whether the documents are kept in the normal course of business by Litton and to the extent the documents describe events, those events are recorded at or near the time the events occurred. Mr. Whittekar responded " correct" to a leading questions regarding the regular practice of Ocwen to maintain these records and to do so on a permanent basis and whether these records are the type of records Ocwen relies on in the day-to-day servicing of this particular loan.

Defense counsel conducted voir dire examination of Mr. Whittaker, who testified his duties include reviewing business records in preparation for testimony in foreclosure matters. He reviewed the business records for this case before trial. In his previous position at Ocwen, he was involved in witnessing the assignment for this loan.

He is not involved in maintaining Ocwen's business records. He is familiar with the records because he has done extensive training on Ocwen's practice of maintaining and holding records. He was not sure of the name of the person who did the training but it was through his boss. As part of the training he was told what the business practices are. The information he was given about business practices, his training, and his working for Ocwen for so long form the basis of his knowledge of Ocwen's business practices.

Regarding Litton's business practices, the information he was given during training, standard industry practices, and Mr. Whittaker's understanding of the agreement Ocwen entered with Litton form the basis of his knowledge. Ocwen would not have entered any type of agreement with Litton if it did not maintain business records properly. Because he never worked for Litton, he has no first-hand knowledge of Litton's practices for maintaining business records.

Plaintiff's counsel continued direct examination questioning. Mr. Whittaker received training in a multi-day training seminar. He received binders of documents, which contained Litton information. They went through the documents to show the similarity between Ocwen's practice of maintaining records and Litton's practice. In response to leading questions, Mr. Whittaker replied " yes" to whether he reviewed Litton's records and policies and whether he gained an understanding that Litton's business practices for maintaining business records are reliable. Litton's records were kept very similarly to the way Ocwen maintains and keeps its records.

The entire legal staff participates in the training. Training includes people who perform the same job as Mr. Whittaker, including people who create records, assignments, and affidavits. In response to a leading question regarding whether people who service the account transferred from Litton are involved in the training, Mr. Whittaker replied, " yes."

Mr. Whittaker did not discuss Bank of America, LaSalle Bank National Association, Mortgage Electronic Registration Systems, Inc., or New Century Mortgage Corporation. (See Compl. ¶ ¶ 1, 4-5.)

CONCLUSIONS OF LAW

No adequate foundation was provided to qualify Mr. Whittaker to testify regarding business practices and records of the various entities involved in this case. M.R. Evid. 803(6); Beneficial Me., Inc. v. Carter, 2011 ME 77, ¶ ¶ 15-16, 25 A.3d 96; HSBC Mortg. Servs., Inc. v. Murphy, 2011 ME 59, ¶ 10, 19 A.3d 815; see also Bank of Me. v. Hatch, 2012 ME 35, ¶ 8, 38 A.3d 1260; Bank of Am., N.A. v. Barr, 2010 ME 124, ¶ 19, 9 A.3d 816; In re Soriah B., 2010 ME 130, ¶ 13, 8 A.3d 1256; LDC Gen. Contracting v. LeBlanc, 2006 ME 106, ¶ 16, 907 A.2d 802; State v. Radley, 2002 ME 150, ¶ 15, 804 A.2d 1127; State v. Hanger, 691 A.2d 1191, 1194 (Me. 1996); Ne. Bank & Trust Co. v. Soley, 481 A.2d 1123, 1126 (Me. 1984). Based on his demeanor on the witness stand, his testimony, and plaintiff counsel's use of leading questions, the court concluded Mr. Whittaker was not a custodian or qualified witness. See M.R. Evid. 803(6). Absent a qualified witness, plaintiff could not satisfy the conditions required for a judgment of foreclosure. See Chase Home Fin., LLC v. Higgins, 2009 ME 136, ¶ 11, 985 A.2d 508.


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