Submitted On Briefs: June 22, 2016
Elizabeth LaPierre, Esq., and Bridget McMahon, Esq., Legal
Services for the Elderly, Scarborough, for appellant Guy R.
William J. Gallitto, III, Esq., Bergen & Parkinson, LLC,
Saco, for appellee Ocean Communities Federal Credit Union
ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Guy R. Roberge appeals from a summary judgment entered in the
District Court (Biddeford, Mulhern, J.) in favor of
Ocean Communities Federal Credit Union (the Credit Union) on
the Credit Unions complaint for residential foreclosure.
Roberge contends that the court erred by concluding that the
Credit Union established its entitlement to a summary
judgment as to each element of foreclosure in accordance with
M.R. Civ. P. 56. We agree, and vacate the judgment and remand
for a trial.
On February 17, 2015, the Credit Union filed a foreclosure
complaint in the District Court against Roberge and Lisa H.
Pombriant concerning residential property in Biddeford. The
Credit Union alleged that Roberge executed a note for a home
equity line of credit on September 17, 2008, and that Roberge
and Pombriant mortgaged the Biddeford property to secure
Roberges loan. The Credit Union further alleged that the City
of Biddeford had placed tax liens on the property, and that
the Credit Union had paid the amounts owed for the taxes,
resulting in the Citys release of the liens. The Credit Union
asserted that Roberge was in default on the note and that
Roberge and Pombriant had breached the mortgage by failing to
reimburse the Credit Union for the tax lien advances. Roberge
disputed the complaint.
The Credit Union moved for a summary judgment on June 15,
2015. For each of its accompanying statements of material
facts, the Credit Union cited to either (1) the affidavit of
Claude Morgan, the Credit Unions collections manager, in
which Morgan referred to three attached exhibits- the note,
the mortgage, and the notice of default, or (2) the affidavit
of William J. Gallitto III, the Credit Unions attorney. By
judgment dated August 18, 2015, the court granted a summary
judgment for foreclosure and sale in favor of the Credit
Union in the amount of $144, 998.97. Roberge appeals.
Roberge challenges the courts entry of a summary judgment on
the ground that the Credit Union did not establish each of
the elements necessary to foreclose according to the
requirements of Rule 56. We consider the evidence in the
summary judgment record in the light most favorable to
Roberge, as the nonmoving party, to determine, de novo,
whether the parties summary judgment filings reveal any
genuine dispute of material fact and whether the Credit Union
is entitled to a judgment as a matter of law based on the
undisputed facts. See M.R. Civ. P. 56(c); HSBC
Bank USA, N.A. v. Gabay, 2011 ME 101, ¶ 8, 28 A.3d
1158; Beneficial Me. Inc. v. Carter, 2011 ME 77,
¶ 6, 25A.3d96.
Although summary judgment practice has long used consistent
standards, we have, in the past decade, detailed the
application of those requirements to residential foreclosure
matters in particular. In doing so, "[w]e have
repeatedly emphasized the importance of applying summary
judgment rules strictly in the context of residential
mortgage foreclosures." HSBC Mortg. Servs., Inc. v.
Murphy, 2011ME59, ¶9, 19A.3d815 (quotation marks
omitted); see Gabay, 2011 ME 101, ¶ 9, 28 A.3d
A party moving for a summary judgment in a foreclosure case
must comply with several layers of requirements. First, the
motion must be accompanied by a "separate, short, and
concise statement of material facts, set forth in numbered
paragraphs" with only one fact per paragraph. M.R. Civ.
P. 56(h)(1). Each fact must be supported by a citation to
"the specific portions of the record from which each
fact is drawn." Gabay, 2011 ME 101, ¶ 9,
28 A.3d 1158 (quotation marks omitted); see M.R.
Civ. P. 56(h)(1), (4).
In the context of mortgage foreclosures, this supporting
evidence primarily consists of affidavits signed by bank
employees or representatives. Murphy, 2011 ME 59,
¶ 9, 19 A.3d 815. "Supporting and opposing
affidavits shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and
shall show affirmatively that the affiant is competent to
testify to the matters stated therein." M.R. Civ. P.
56(e); see Carter, 2011 ME 77, ¶ 6, 25 A.3d 96.
Thus, the record references in both the statements of
material facts and the affidavits themselves "must refer
to evidence of a quality that could be admissible at
trial." Gabay, 2011 ME 101, ¶ 2 n.2, 28
A.3d 1158 (quotation marks omitted); see Carter,
2011 ME 77, ¶ 6, 25 A.3d 96; Murphy, 2011 ME
59, ¶ 9 & n.6, 19 A.3d 815.
When an affidavit refers to records as the basis for the
affiants knowledge, those records must be attached:
"Sworn 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) (emphasis added);
see Cach, LLC v. Kulas, 2011 ME 70, ¶
10, 21 A.3d 1015; see also Arrow Fin. Servs., LLC v.
Guiliani, 2011 ME 135, ¶¶ 12-14, 32A.3d 1055.
For example, in Kulas, the plaintiff submitted with
its motion for summary judgment a bank officers affidavit
stating that the plaintiff obtained the defendants account
pursuant to an assignment from the bank, and referring to
"computerized and hard copy books and records" of
the bank to support the fact of the assignment; none of those
records was attached to the affidavit. 2011 ME 70,
¶¶ 3, 10, 21 A.3d 1015 (quotation marks omitted).
We concluded that "[w]ithout a sworn or certified copy
of the assignment, the summary judgment record does not
support [the plaintiffs] assertion that it was the assignee
of [the defendants] account, " and we vacated the
summary judgment in favor of the plaintiff Id.
¶¶ 10, 12.
Indeed, in foreclosure cases, "the information supplied
by the affidavits is largely derivative because it is drawn
from a businesss records, and not from the affiants personal
observation of events." Murphy, 2011 ME 59,
¶ 9, 19 A.3d 815. Business records are hearsay and
therefore inadmissible pursuant to M.R. Evid. 802 unless they
meet the requirements of the business records exception in
M.R. Evid. 803(6). Murphy, 2011 ME 59, ¶ 10, 19
A.3d 815. We review the trial courts foundational findings as
to the admissibility of evidence for clear error and, if the
admissibility of the evidence is established by undisputed
foundational facts, we review the courts consideration of
that evidence for an abuse of discretion. Carter,
2011 ME 77, ¶ 9, 25A.3d96.
To qualify documents for the business records exception, the
moving party first must establish that the affiant is the
custodian of the records "or another qualified
witness." M.R. Evid. 803(6); see Homeward
Residential Inc. v. Gregor,2015 ME 108, ¶ 14 n.11,
122 A.3d 947; Murphy,2011 ME 59, ¶ 10, 19 A.3d
815. "A qualified witness is one who was intimately
involved in the daily operation of the business and whose
testimony showed the firsthand nature ...