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Mechanics Savings Bank v. Belisle

Superior Court of Maine, Androscoggin

April 6, 2016

MECHANICS SAVINGS BANK, Plaintiff,
v.
STEPHEN P. BELISLE, Defendant, and MECHANICS SAVINGS BANK, Party-in-Interest.

          ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          MARYGAY KENNEDY JUDGE.

         Presently 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.

         After independent review, Plaintiffs Motion for Summary Judgment is denied and judgment is entered for the Defendant.

         I. BACKGROUND

         On or 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.)

         Plaintiff 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.

         II. STANDARD OF REVIEW

         In 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.

         Rule 56 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 therein;
(2) the record was kept in the course of a regularly conducted business;
(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. ...


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