JPMORGAN CHASE BANK, N.A.
TERRANCE B. LOWELL et al.
Submitted On Briefs: November 29, 2016
vacated. Remanded to the District Court for entry of judgment
Klein-Golden, Esq., Clifford & Golden, PA, Lisbon Falls,
for appellant Terrance B. Lowell
J. Shub, Esq., Preti Flaherty Beliveau & Pachios, LLP,
Portland, for appellee JPMorgan Chase Bank, N.A.
ALEXANDER, MEAD, JABAR, HJELM, and HUMPHREY, JJ.
Terrance B. Lowell appeals from a judgment of foreclosure in
favor of JPMorgan Chase Bank, N.A., entered in the District
Court (Lewiston, Dow, J.) after a bench trial.
Lowell argues that the court erred or abused its discretion
by admitting certain documents pursuant to the business
records exception to the hearsay rule, see M.R.
Evid. 803(6), and by finding that the notice of default
issued by JPMorgan complied with statutory requirements.
Although the court properly admitted the challenged documents
in evidence, we agree that the notice of default was
defective. We therefore vacate the judgment and remand for
entry of judgment for Lowell.
In March 2015, JPMorgan filed a complaint against Lowell
seeking foreclosure on residential property located in
JPMorgan alleged that Lowell had defaulted by failing to make
payments due on a promissory note executed in favor of
Wachovia Mortgage Corporation; that the note was secured by a
mortgage in favor of Mortgage Electronic Registration
Systems, Inc., (MERS), as nominee for Wachovia; and that,
after several transactions, all rights created by the
instruments had been assigned to JPMorgan. Lowell filed an answer,
which, as later amended, disputed many of the allegations in
the complaint and asserted several affirmative defenses.
The matter proceeded to trial in March 2016. To lay the
foundation necessary for the admission of various documents
as business records, see M.R. Evid. 803(6), JPMorgan
presented the testimony of employee Frank Dean, who had
worked for JPMorgan for five years and, at the time of trial,
was a "mortgage banking research officer." Dean
testified that his responsibilities in that position included
reviewing "business records pertaining to residential
mortgage loans, " and that in preparation for trial he
had "reviewed the electronic business records pertaining
to [Lowells] mortgage file, " including the note,
mortgage, assignments of the mortgage, and payment history.
He further testified that he previously worked as a
"bank branch loan officer" for JPMorgan and had
been "responsible for meeting with bank customers, . . .
developing residential mortgage applications, ... processing
mortgage loans, closing mortgage loans, and . . . handling
customer service issues . . . such as payment
applications." He stated that while assisting customers
with loan payments he observed "how the system was
accessed" by bank tellers at the time of payment,
"where the information was entered, and how it was
saved, and became a record." He explained that, based on
this cumulative experience, he was familiar with how
JPMorgans business records were created, checked for
accuracy, and accessed, and he confirmed that JPMorgan
followed all procedures for maintaining the accuracy of the
documents at issue in this case.
Based on Deans foundational testimony, JPMorgan introduced a
number of documents in evidence, including the note and
mortgage; the notice of default and right to cure issued to
Lowell by JPMorgan in January 2015; and Exhibit E, which
consists of "screen prints" from JPMorgans computer
databases that show the charges and payments made on Lowells
loan between June 2006-which, Dean testified, is when
JPMorgan acquired the note-and late February 2016. Dean
stated that according to the computer printouts, Lowell had
not made any payments on his loan since September 1, 2012.
During Deans testimony, Lowell made a general objection to
the admission of JPMorgans records pursuant to Rule 803(6).
The court overruled the objection, rejecting Lowells argument
that JPMorgan was required to establish that Dean had
knowledge about the creation of the records particular to
this case. Lowell later objected specifically to the
admission of some portions of Exhibit E that cover activity
while JPMorgan owned the note, based on his assertion that
Dean lacked personal knowledge about how various charges in
the printouts were calculated and entered, and the court also
overruled that objection.
Following the trial, on March 16, 2016, the court entered a
judgment of foreclosure in favor of JPMorgan, finding that
Lowell owed $125, 000.33 on the note and mortgage, plus
attorney fees and disbursements. Lowell timely appealed.
See 14 M.R.S. § 1901 (2016); M.R. App. P. 2.
To be entitled to a judgment of foreclosure, JPMorgan was
required to prove, among other things, "the amount due
on the mortgage note, including any reasonable attorney fees
and court costs, " and service on Lowell of a notice of
default and right to cure that complied with statutory
requirements. Bank of Am., N.A. v. Greenleaf, 2014
ME 89, ¶ 18, 96 A.3d 700; see also 14 M.R.S.
§§ 6111(1-A), 6322 (2014). Lowell argues that the court erred by
admitting JPMorgans business records showing the amount ...