ORDER ON PLAINTIFF'S MOTION FOR SUMMARY
MARYGAY KENNEDY JUDGE.
before the court is Plaintiff Mechanics Savings Bank's
Motion for Summary Judgment in this foreclosure action
brought pursuant to 14 M.R.S. §§ 6321-6325.
Defendant Stephen P. Belisle has appeared in this action, but
did not file an opposition to Plaintiff's motion.
independent review, Plaintiffs Motion for Summary Judgment is
denied and judgment is entered for the Defendant.
about September 25, 2001, Defendant executed and delivered a
promissory note to Plaintiff with original principal amount
of $89, 000.00 (PL Supp. S.M.F. ¶ 1.) The promissory
note was secured by a mortgage on property located at 38
Taylor Hill Road in Lewiston, Androscoggin County, Maine.
(Id. ¶¶ 1-2.) Plaintiff asserts that
Defendant has defaulted on his obligations under the note and
the mortgage by failing to make monthly payments when due
since February 1, 2015. (Id. ¶¶ 7-8.)
mailed Defendant a notice of default and right to cure on
April 2, 2015 (the "Notice of Default'). (Id.
¶ 9.) Plaintiff filed a complaint for foreclosure
on June 18, 2015. (Compl. 1.) Foreclosure mediation pursuant
to Maine Rule of Civil Procedure 93 was held on August 20,
2015. (Med. Report 1.) Plaintiff moved for summary judgment
on October 1, 2015.
STANDARD OF REVIEW
residential mortgage foreclosure actions, the court strictly
applies the rules regarding summary judgment. HSBC Mortg.
Servs., Inc. v. Murphy, 2011 ME 59, ¶ 9; 19 A.3d
815. When a party moves for summary judgment in a residential
mortgage foreclosure action, Maine Rule of Civil Procedure
56(j) requires the court to independently determine whether
the mortgage holder has properly set forth in its statement
of material facts all of the elements necessary for a
foreclosure judgment. M.R. Civ. P. 560); Chase Home Fin.
LLC v. Higgins, 2009 ME 136, ¶ 11, 985 A.2d 508.
Each statement of material fact must be "supported by
evidence of a quality that could be admissible at
trial." HSBC Bank USA, N.A. v. Gabay, 2011 ME
101, ¶ 10, 28 A.3d 1158; M.R. Civ. P. 56(h)(4). The
court must not consider a statement of material fact
unsupported by citation to record evidence nor is the court
allowed to search the record to find evidence in support of
such unsupported statements. M.R. Civ. P. 56(h)(4);
Gabay 2011 ME 101, ¶ 17, 28 A.3d 1158.
also requires that "[s]worn or certified copies of all
papers or parts thereof referred to in an affidavit shall be
attached thereto or served therewith." M.R. Civ. P.
56(e). When an affiant's statements are based upon his or
her review of business records, these records must be
attached and must be referenced in order for the affidavit to
provide adequate evidence in support of a motion for summary
judgment. Cach, LLC v. Kulas, 2011 ME 70, ¶ 10,
21 A.3d 1015; M.R. Civ. P. 56(h)(4). In order for such
business records to be deemed "of a quality admissible
at trial, " a qualified witness must attest, with regard
to each record, that:
(1) the record was made at or near the time of the events
reflected in the record by, or from information transmitted
by, a person with personal knowledge of the events recorded
(2) the record was kept in the course of a regularly
(3) it was the regular practice of the business to make
records of the type involved; and
(4) no lack of trustworthiness is indicated from the source
of information from which the record was made or the method
or circumstances under which the record was prepared.
Bank of Am., N.A. v. Greenleaf,
2014 ME 89, ¶
25, 96 A.3d 700; M.R. Evid. ...