U.S. BANK, N.A., Plaintiff
TODD HUBBAR and LAURA HUBBARD, Defendants
ORDER ON PLAINTIFF'S MOTION FOR
Mills Justice, Superior Court
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
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.
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.)
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.
Standard of Review
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
Motion for Reconsideration
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.)
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).
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.)
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. 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, ...