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Keybank National Association v. Estate of Quint

Supreme Court of Maine

December 21, 2017


          Argued: November 15, 2017

          Brent L. Messinger, Esq. (orally), Andrea T. Holbrook, Esq., and David C. West, Esq., Portland, for appellant KeyBank National Association

          Thomas A. Cox, Esq. (orally), Portland, for appellee Vickie L. Kilton

          Frank D'Alessandro, Esq., Chet Randal, Esq., and Jonathan E. Selkowitz, Esq., Pine Tree Legal Assistance, Inc., Portland, for amicus curiae Pine Tree Legal Assistance, Inc.

          John D. Clifford, IV, Clifford & Golden, P.A., Lisbon Falls, for amicus curiae Maine Attorneys Saving Homes


          ALEXANDER, J.

         [¶l] KeyBank National Association appeals from a judgment entered by the District Court (Springvale, Dobson, J.) in favor of Vickie L. Kilton and the Estate of Eula W. Quint on KeyBank's complaint for a residential foreclosure.[1]KeyBank challenges the court's denial of its motion to continue the trial and the court's determination that KeyBank did not lay a proper foundation for admitting the loan servicing records pursuant to the business records exception to the hearsay rule. See M.R. Evid. 803(6). We affirm the judgment.

         I. CASE HISTORY

         [¶2] On September 30, 2015, KeyBank filed a complaint for a residential foreclosure against Quint and Kilton in the District Court. Shortly thereafter, Kilton contacted KeyBank to report that Quint had died. After the appointment of a special administrator for Quint's estate, the Estate, represented by counsel, filed an answer denying the allegations in the complaint and waiving mediation. See M.R. Civ. P. 93(m). Kilton did not file an answer or otherwise defend in the matter until the trial management conference in December 2016. At that conference, she appeared unrepresented.

         [¶3] On April 14, 2017, the court held a nonjury trial. Neither counsel for the Estate nor the personal representative was present at trial. Kilton appeared, represented by an attorney who had filed a notice of limited appearance that day. See M.R. Civ. P. 11(b); M.R. Prof. Conduct 1.2(c), (d).

         [¶4] KeyBank moved to continue the trial for at least a month, stating that, with the assistance of her attorney, Kilton could apply for a loan modification. KeyBank added that the Estate was not present and therefore was unable to protect its interest in the property. Kilton objected to the motion, arguing, inter alia, that she believed that KeyBank requested a continuance because it did not have sufficient evidence to support its claim. After confirming that Kilton understood the risk of declining the opportunity for a loan modification and noting that KeyBank's burden at trial was not dependent on the Estate's presence, the court denied KeyBank's motion.

         [¶5] When the trial began, KeyBank first called Kilton to testify. Kilton admitted that she had executed a promissory note in favor of KeyBank, which was secured by a mortgage on property located in Parsonsfield, and that she had failed to make payments due on the note. On cross-examination, she testified that, when she first obtained the loan, she received monthly bills from "Countrywide."

         [¶6] KeyBank's only other witness was a "complex liaison" from PHH Mortgage Services, which, he testified, is the current loan servicer for KeyBank and handles the day-to-day operations of managing and servicing loan accounts. The complex liaison testified that he has been an employee of PHH in the foreclosure department for seven years. As part of his training, he had worked with supervisors of various departments-including loss mitigation, collections, servicing, and escrow-to understand those departments' processes. He further stated that he participates in training annually and continues to meet with members of other departments on a regular basis, particularly when a question on a loan arises.

         [¶7] The complex liaison testified that when an event occurs on an account, such as contact with the borrower or receipt of a payment, the event is documented in the account on the same day. He stated that he does not have the ability to alter a business record once it has been entered into the system. He also described PHH's physical and digital security, as well as PHH's "clean-desk policy" and sign-off procedure.

         [¶8] The complex liaison testified that he has training on and personal knowledge of the "boarding process" for loans being transferred from prior loan servicers to PHH and of PHH's procedures for integrating those records. He explained that transferred loans are put through a series of tests to check the accuracy of any amounts due on the loan, such as the principal balance, interest, escrow advances, property tax, hazard insurance, and mortgage insurance premiums. He further explained that if an error appears on the test report for a loan, that loan will receive "special attention" to identify the issue, and, "[i]f it ultimately is something that is not working ...

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