Thomas D. Warren Justice, Superior Court
At the trial in this foreclosure case on May 5, 2015, the court reserved decision on the admissibility of several exhibits that are essential to plaintiff Nationstar Mortgage LLC's right to obtain a judgment of foreclosure. The parties have since briefed the admissibility issues in question.
The original loan was made by Countrywide Bank FSB, which (according to plaintiff) was merged into Bank of America. The original mortgage was granted to MERS as nominee, but Nationstar is not relying on any purported assignment from MERS. Instead Nationstar is relying on a November 7, 2012 assignment from the Bank of America to Nationstar.
The initial question is whether there is sufficient evidence that Countrywide Bank FSB was merged into the Bank of America. On this issue Nationstar has offered Exhibits 9 and 9.1, whose admissibility is objected to by the defendant, Estate of John R. Darling.
In the court's view the Estate is correct that neither Exhibit 9 nor 9.1 - a copy of a letter on the stationery of the Comptroller of the Currency conditionally approving the merger of Countrywide FSB into the Bank of America and a printout from the FDIC's internet site showing that Countrywide Bank FSB was merged into Bank of America N.A. - are independently admissible. They would only qualify as an exception to hearsay as public records under M.R.Evid. 803(8)(A), but they have not been authenticated by any witness with knowledge and they are not self-authenticating because they have not been provided under seal. See M.R. Evid. 902(1).
The remaining question is whether the court can take judicial notice of the merger of Countrywide Bank FSB into Bank of America. While it generally known that some Countrywide entity was purchased by Bank of America, the court does not conclude that it is generally known for purposes of M.R.Evid. 201(b)(1) that the purchase resulted in a merger or that the specific entity involved was "Countrywide Bank FSB."
However, the court agrees that the merger of Countrywide Bank FSB into the Bank of America is a fact that is capable of accurate and ready determination under M.R.Evid. 201(b)(2). See, e.g., Nationstar's Ex. 9.1, which although not admissible demonstrates that the merger in question is capable or accurate and ready determination.
The Estate also questions the admissibility of Exhibits 5 and 6. The first problem is that those exhibits incorporate information that originated with the Bank of America because the alleged default occurred before the note and mortgage were assigned to Nationstar. Nationstar's witness had not worked for the Bank of America. Although he testified that he was familiar with the Bank of America recordkeeping practices because the law firm he had previously worked for had represented the Bank of America the court does not believe that he was ever asked whether Bank of America records - like those that were incorporated into the Nationstar system in this case - were created at or near the time in question by persons with knowledge.
Moreover, even if he had offered that testimony, he was not asked and did not testify enough about his familiarity with Bank of America records so that he could have offered an adequate foundation. Simply reciting that Bank of America records were incorporated into Nationstar's record keeping system and that quality control checks were conducted is not sufficient. The foundational evidence from a receiving entity's employee must demonstrate that the employee "had sufficient knowledge of both businesses' regular practices" to demonstrate the reliability of the information. Beneficial Maine Inc. v. Carter, 2011 ME 77 ¶13 (emphasis added).
There is another problem as well. If the records had been admitted, they would have to demonstrate at a minimum that a default in payment had occurred. The court has looked at Exhibits 5 and 6 and cannot find a payment history from which it can be discerned that a default occurred on August 1, 2009 as Nationstar claims.
The entry shall be:
Defendant's challenge to the admissibility of Exhibits 5 and 6 is upheld. Without those exhibits there is no insufficient evidence to prove that plaintiff is entitled to foreclose the mortgage at issue. Judgment for defendant. The clerk is directed to ...