Argued: November 15, 2017
L. Messinger, Esq. (orally), Andrea T. Holbrook, Esq., and
David C. West, Esq., Portland, for appellant KeyBank National
A. Cox, Esq. (orally), Portland, for appellee Vickie L.
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.
D. Clifford, IV, Clifford & Golden, P.A., Lisbon Falls,
for amicus curiae Maine Attorneys Saving Homes
ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
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.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.
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.
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),
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
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."
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.
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
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