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Deutsche Bank National Trust Co. v. Eddins

Supreme Court of Maine

April 3, 2018

DEUTSCHE BANK NATIONAL TRUST COMPANY
v.
JESSES. EDDINS JR. et al.

          Submitted On Briefs: February 26, 2018

          Thomas A. Cox, Esq., Portland, for appellants Jesse S. Eddings and Naomi L. Eddins.

          Brett L. Messinger, Esq., Andrea T. Holbrook, Esq., and David C. West, Esq., Portland, for appellee Deutsche Bank National Trust Company.

          Panel: ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.

          HJELM, J.

         [¶1] Jesse S. Eddins Jr. and Naomi L. Eddins appeal from a judgment of foreclosure entered by the Superior Court (Penobscot County, Mallonee, J.) in favor of Deutsche Bank National Trust Company. The Eddinses argue on appeal that the court abused its discretion by admitting in evidence a copy of the notice of default that contains an assertion that it was sent by mail. We agree and therefore vacate the judgment and remand for entry of judgment for the Eddinses.

         I. BACKGROUND

         [¶2] The following facts are either undisputed or taken from the judgment, viewed in the light most favorable to Deutsche Bank. See Homeward Residential Inc. v. Gregor, 2015 ME 108, ¶ 2, 122 A.3d 947.

         [¶3] On November 9, 2005, Francine Eddins and Jesse S. Eddins, Jr. executed a promissory note in favor of Argent Mortgage Company, LLC, in the principal amount of $78, 200. To secure payment on the note, Francine and Jesse executed a mortgage on residential property located in Mount Chase. Argent later assigned the note to Deutsche Bank as trustee. Francine died in 2009. The following January, Jesse executed a quitclaim deed to the encumbered property to himself and his daughter, Naomi L. Eddins. Later in 2010, Jesse agreed to a modification of the note, increasing the amount owed to approximately $89, 000.

         [¶4] On August 10, 2015, Deutsche Bank filed a complaint for foreclosure in the District Court (Lincoln), naming Jesse as the defendant and Naomi as a party in interest and alleging that Jesse had defaulted by failing to make payments on the note beginning April 1, 2014. The Eddinses filed an answer that included several affirmative defenses, including an assertion that the Bank failed to comply with the notice provisions of 14 M.R.S. § 6111 (2017).[1] The Eddinses also filed a notice of removal to the Superior Court (Penobscot County). See M.R. Civ. P. 76C.

         [¶5] After considerable-and contentious-pretrial proceedings, in April of 2017 the court [Mallonee, J.) conducted a bench trial. Deutsche Bank's only witness was Blaine Shadle, a senior loan analyst for Ocwen Loan Servicing, the company responsible for servicing the Eddinses' mortgage on behalf of Deutsche Bank.

         [¶6] Shadle testified that he became employed by Ocwen in February of 2013 and has held a variety of positions there, including working as a phone agent in "customer care, " a member of the "coach line" where he assisted other agents with questions during phone calls with customers, a supervisor in various departments, and a member of the "email live chat team." In his current position as a senior loan analyst, he reviews "mortgage accounts, records in [Ocwen's] system, also documents, usually the collateral file, like originating document[s] such as the note, the mortgage, things like that." Shadle testified that in preparation for trial, he reviewed Deutsche Bank's trial exhibits and related documents, which he stated are kept in the "normal course of business with the [B]ank[, ]... made near or at the time of the event described [, ]... [and] maintained on a regular and permanent basis" to ensure accuracy.

         [¶7] Shadle identified Deutsche Bank's Exhibit E, which is a notice of default and right to cure purportedly sent in May of 2015 to Jesse at two addresses and which states, among other things, that there was an amount overdue on the note. The notice was printed on the letterhead of Shechtman Halperin Savage, which is the law firm that represents Ocwen in this action, and bears the signature of an attorney with the firm. Two sets of unidentified numbers are on the notice, [2] as well as a statement at the end of the notice indicating that it was "sent via certified mail/rrr and regular mail." Shadle testified that he had no "personal knowledge as to who mailed [the notice of default], " and when asked whether he had proof that the notice was mailed, he stated, "Not with me." During his testimony, Shadle did not describe any familiarity with any process used by the law firm to create or maintain records. When the Bank offered Exhibit E into evidence, the Eddinses objected, arguing that Shadle lacked personal knowledge about the law firm's processes relating to its documents. The court summarily overruled the objection and admitted the document in evidence.

         [¶8] At the close of the evidence, the court stated that it would enter judgment for the Bank, and it did so by written judgment later that day. After the court denied the Eddinses' motion for further findings and conclusions, see M.R. Civ. P. 52(b), they filed a timely notice ...


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