Submitted On Briefs: February 26, 2018
A. Cox, Esq., Portland, for appellants Jesse S. Eddings and
Naomi L. Eddins.
L. Messinger, Esq., Andrea T. Holbrook, Esq., and David C.
West, Esq., Portland, for appellee Deutsche Bank National
ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
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
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.
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.
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). The Eddinses also
filed a notice of removal to the Superior Court (Penobscot
County). See M.R. Civ. P. 76C.
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.
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.
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,
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.
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