ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Before the Court is the Plaintiffs motion for summary judgment on its claim for foreclosure of a mortgage encumbering the Defendant's property located in Whitefield and its claim for breach of contract. See 14 M.R.S. §§ 6321-6326 (2014); M.R. Civ. P. 56. The Defendant, Mathew Davis, has not appeared in the action and therefor has not filed an opposition to the Plaintiffs motion. However, regardless of the sufficiency of the Defendant's response, the Court cannot grant the Plaintiffs motion because the Plaintiff failed to properly support certain statements of material fact necessary for the Court to issue a summary judgment on either of the Plaintiffs claims. See M.R. Civ. P. 56(h)(4) (stating that the Court may disregard a statement of material fact "not supported by citation to record material properly considered on summary judgment"); HSBC Bank USA, N.A. v. Gabay, 2011 ME 101, ¶ 8, 28 A.3d 1158; see also Bank of Am., N.A. v. Greenleaf, 2014 ME 89, ¶18, 96 A.3d 700 (citing Chase Home Fin. LLC v. Higgins, 2009 ME 136, ¶ 11, 985 A.2d 508) (setting forth the essential elements of proof necessary to support a judgment of foreclosure); Tobin v. Barter, 2014 ME 51, ¶¶ 9-10, 89 A.3d 1088 (listing the elements of a breach of contract claim). Therefore, the Plaintiff shall have thirty (30) days to submit supplemental statements of material fact, with supporting records, addressing the issues identified in this order. If the Plaintiff fails to submit additional statements of material fact within thirty days, the Plaintiffs motion for summary judgment shall be DENIED without further notice or order.
The Plaintiffs motion for summary judgment on its foreclosure claim is subject to Rule 56(j), which imposes detailed requirements for granting a summary judgment in a foreclosure action. M.R. Civ. P. 56(j). The Court must determine if the requirements of Rule 56(j) have been met and also whether the Plaintiff has set forth in its statements of material fact the evidence necessary for a judgment in a mortgage foreclosure. See Greenleaf, 2014 ME 89, ¶18, 96 A.3d 700. The Court must apply the rules of summary judgment strictly when determining whether the Plaintiff has properly supported the necessary statements of material fact for a judgment of foreclosure. Gabay, 2011 ME 101, ¶ 9, 28 A.3d 1158.
After reviewing the Plaintiffs motion, the Court concludes that the requirements for a summary judgment of foreclosure have not been met because the Plaintiff failed to ensure the admission of certain records of regularly conducted activity, formerly known as business records. See M.R. Evid. 803(6). A foreclosure plaintiffs statements of material fact must be "supported by references to record evidence of a quality that could be admissible at trial." M.R. Civ. P. 56(e); Lubar v. Connelly, 2014 ME 17, ¶ 36, 86 A.3d 642; see also HSBCMortg. Services, Inc. v. Murphy, 2011 ME 59, ¶ 9, 19 A.3d 815 (discussing the importance of the qualitative requirement that records submitted for summary judgment in a foreclosure action are admissible). "[A] business's record of acts or events is admissible [pursuant to M.R. Evid. 803(6)] if the necessary foundation is established by the testimony of the custodian or other qualified witness." Beneficial Maine Inc. v. Carter, 2011 ME 77, ¶ 12, 25 A.3d 96 (internal quotation marks omitted).
To the extent that the Plaintiff seeks to admit copies of the note, mortgage, and assignment as records of regularly conducted activity, the Plaintiff failed to produce an affiant qualified to lay the necessary foundation to admit these records. See M.R. Evid. 803(6); Carter, 2011 ME 77, ¶¶ 12-17, 25 A.3d 96; (Thompson Ex. A, B, C; Roux Ex. A, B, C). Because these records were created by "previous holders and/or servicers, " (see Thompson Aff. ¶ 2), any affiant employed by the Plaintiff or Camden National Bank (CNB), the current loan servicer, must provide foundational evidence that is "adequate to demonstrate that the [affiant] ha[s] sufficient knowledge of both businesses' regular practices to demonstrate the reliability and trustworthiness of the information." Carter, 2011 ME 77, ¶ 13, 25 A.3d 96. An affiant can accomplish this by demonstrating knowledge that:
• the producer of the record at issue employed 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 manual 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.
Id. ¶ 14. The affiant must also report the basis of his or her knowledge of the practices of an entity that the affiant is not employed by, i.e., how the affiant acquired knowledge of the record keeping practices of the entity that created the record. Id. ¶ 16.
In this case, neither Robin Thompson, an employee of CNB, nor Stephanie Roux, the Plaintiffs employee, demonstrated sufficient knowledge of the practices of the entity that created the note, mortgage, and assignment. Neither affiant explicitly identified the "previous holders" that created these records in the portion of their affidavit laying the foundation for admission of these records. Additionally, neither affiant demonstrated any knowledge of that specific entity's record keeping practices. Therefore, to the extent that the Plaintiff seeks to admit these records pursuant to M.R. Evid. 803(6), they are inadmissible.
Likewise, Thompson failed to set forth a sufficient foundation to admit CNB's records evidencing the total amount due. (See
Pl.'s Supp. S.M.F. ¶ 13; Thompson Aff. ¶ 21 citing Thompson Ex. E.) This is because it is unclear whether CNB's records rely on records created by a prior loan servicer. The earliest CNB appears to have become servicer of any of the Plaintiffs mortgage loans was March of 2010. (See Thompson Aff. ¶ 3 citing to Roux Ex. D.) The loan at issue in this case was originated in May of 1997. (See Thompson Ex. A, B; Roux Ex. A, B.) If, as the record suggests, an entity other than CNB serviced the Defendant's mortgage between 1997 and 2010, and that entity's records of payments and expenditures from the mortgage account were integrated into CNB's records, then Thompson must satisfy the foundational requirements set forth in Carter, discussed supra, in order to ensure admission of this record. Because this issue is unclear and it is the moving parties' burden to put admissible evidence before the Court upon summary judgment, the Court cannot conclude that Exhibit E is admissible. See M.R. Civ. P. 56(e). Therefore, the statement of material fact relying on Exhibit E is not properly supported and the Court will not consider it. See M.R. Civ. P. 56(e), (h)(4); (Pl.'sSupp. S.M.F. If 13).
Additionally, portions of the affidavit submitted by Roux do not strictly comply with the rules of summary judgment. In her affidavit, Roux referred to a "Mortgage Purchase Agreement" (MPA) but she did not attach a sworn or certified copy of the MPA as required by Rule 56(e). (See Roux Aff. ¶¶ 2, 9.) Likewise, the affidavit submitted Plaintiffs counsel, Christopher Brooks, states that the counsel's records reflect certain facts. (See Brooks Aff. ¶¶ 9-10.) If Brooks is indeed relying on counsel's records for a specific fact and not his personal knowledge, then Brooks must attach a copy of the record he is relying on to his affidavit and the Plaintiff must cite to that record in the relevant statement of material fact. See M.R. Civ. P. 56(e); Cach, LLC v. Kulas. 2011 ME 70, ¶ 10 & n.3, 21 A.3d 1015. Because Brooks failed to attach the records that he purportedly relies on for his statements regarding the mediation status and order of priority of the parties, and therefore failed to strictly comply with Rule 56(e), the ...