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U.S. Bank, N.A. v. Hubbar

Superior Court of Maine, Cumberland

November 3, 2016

U.S. BANK, N.A., Plaintiff


          Nancy Mills Justice, Superior Court

         Before the court is plaintiff U.S. Bank, NA.'s motion for reconsideration of the court's dismissal of its complaint without prejudice. For the following reasons, the motion is denied.


         Plaintiff filed a complaint on November 16, 2015. In the complaint, plaintiff sought in count I, mortgage reformation and in count II, equitable lien. Defendants were served in hand on November 4, 2015. Plaintiff filed a motion for default and default judgment on December 10, 2015. Default was entered against defendants on January 12, 2016 as a result of their failure to respond to the complaint. The court did not enter a default judgment and scheduled the case for hearing.

         Jury-waived trial was held on August 29, 2016. Defendants did not appear. Plaintiff appeared through counsel and offered the testimony of Diane Weinberger, who is employed by plaintiff's servicer, Select Portfolio Services. (See J. filed 10/3/16; Pl.'s Exs. 1-8.)

         The court determined that plaintiff had not established standing to reform the mortgage. Accordingly, the court dismissed the complaint without prejudice by judgment filed October 3, 2016. Plaintiff filed a motion for reconsideration on October 13, 2016. Defendants have not responded to the motion.


         1. Standard of Review

         "Motions for reconsideration of an order shall not be filed unless required to bring to the court's attention an error, omission or new material that could not previously have been presented." M.R. Civ. P. 7(b)(5). "The court may in its discretion deny a motion for reconsideration without hearing and before opposition is filed." Id. The court treats a motion for reconsideration as a motion to alter or amend the judgment. M.R. Civ. P. 59(e). The court does not grant a motion to alter or amend the judgment "unless it is reasonably clear that prejudicial error has been committed or that substantial justice has not been done." Cates v. Farrington, 423 A.2d539, 541 (Me. 1980).

         2. Motion for Reconsideration

         Plaintiff argues that it has standing to reform the mortgage because the mortgage and assignments are self-authenticating under M.R. Evid. 902(4) and admissible under the hearsay exception contained in M.R. Evid. 803(14). (Pl.'s Mot. Recons. 5-8.) Plaintiff further argues that defendants' default requires the court to accept the factual allegations in the complaint as admitted. (Id. at 9-10.)

         Although the deeds, mortgage, and assignments are self-authenticating under M.R. Evid. 902(4), the issue of admissibility is a separate question. State v. Lane, 591 A.2d 866, 867 (Me. 1991); M.R. Evid. 902 advisers' note; (Pl.'s Exs. 1-5, 8). The documents offered by plaintiff are subject to the foundational requirements of the business records exception. See M.R. Evid. 803(6); see also Ocean Cmtys. Fed. Credit Union v. Roberge. 2016 ME 118, ¶ 17, 144 A.3d 1178 (referring to "requisite business records foundation" with regard to note and mortgage). M.R. Evid. 803(14) provides a limited hearsay exception "for the recorded copy of a deed as proof of the contents of the original and its execution and delivery." Field & Murray, Maine Evidence § 803.14 at 500 (6th ed. 2007). There is no case law to suggest that M.R. Evid. 803(14) applies to documents other than deeds. Further, although admission of the exhibits and testimony was not objected to because defendants failed to appear at the hearing, a "factfinder must always, however, weigh such [consent] evidence with caution, mindful of its inherent weakness, the same weakness which leads to exclusion upon objection." Michaud v. Vahlsing, Inc.. 264 A.2d 539, 544 (Me. 1970) (quoting Goldthwaite v. Sheraton Rest.. 154 Me. 214, 224, 145 A.2d 362, 368 (1958).

         In order to establish standing in a foreclosure action, plaintiff must show it is the holder of the note and the owner of the mortgage. See Bank of Am., N.A. v. Greenleaf, 2014 ME 89, ¶¶ 9-12, 96 A.3d 700. As the court stated in its judgment, Ms. Weinberger was not qualified to testify about the history of the transactions involved in this case or the exhibits offered. The note in question was not offered as an exhibit or presented to the court. The testimony that plaintiff is the owner of the note by virtue of the corrective assignment of the mortgage is not accurate. (Pl.'s Ex. 5.)

         The fact that defendants were defaulted does not change the result. Although facts in a complaint are generally deemed admitted when the defendant fails to respond, see M.R. Civ. P. 8(d), those facts must be properly supported in the context of a residential mortgage foreclosure and related proceedings.[1] See HSBC Bank USA. N.A. v. Gabay, 2011 ME 101, ¶¶ 14-16, 28 A.3d 1158; see also (Compl. ¶ 5 (alleging defendants are in default of note and mortgage).) Pursuant to Rule 55, if the court deems it necessary and proper, the court may conduct a hearing "[i]f, in order to enable the court to enter judgment or to carry it into effect, it is necessary to, .. establish the truth of any averment by evidence or to make an investigation of any other matter." M.R, ...

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