The Bank of New York Mellon v. Danielle Shone , 2020 ME 122 ( 2020 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2020 ME 122
Docket: Cum-19-48
Argued: March 2, 2020
Decided: October 22, 2020
Panel: MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ., and HJELM and CLIFFORD,
A.R.JJ.*
Majority: MEAD, GORMAN, JABAR, HUMPHREY, and HORTON, JJ., and CLIFFORD, A.R.J.
Dissent: HJELM, A.R.J.
THE BANK OF NEW YORK MELLON
v.
DANIELLE SHONE et al.
HORTON, J.
[¶1] In this appeal from a residential foreclosure judgment of the
Superior Court (Cumberland County, Warren, J.), we are called upon to clarify
the criteria under the business record exception to the hearsay rule for
admitting in evidence records that a business has obtained from another entity
and integrated into its own records or operations. See M.R. Evid. 803(6). Our
decisions since 1984 have endorsed two conflicting interpretations of
Rule 803(6) as it relates to integrated business records, and this case affords an
* Although not present at oral argument, Active Retired Justice Clifford participated in the
development of this opinion. See M.R. App. P. 12(a)(2) (“A qualified Justice may participate in a
decision even though not present at oral argument.”).
2
opportunity to resolve the conflict. We hereby reaffirm the interpretation first
set forth in our 1984 decision in Northeast Bank & Trust Co. v. Soley,
481 A.2d 1123, 1127 (Me. 1984), which is consistent with the widely accepted
interpretation of the identical federal rule, see U.S. Bank Tr., N.A. v. Jones,
925 F.3d 534, 537 (1st Cir. 2019). We conclude that a record that one business
has received from another is admissible under Rule 803(6) without testimony
about the practices of the business that created the record, provided, first, that
the proponent of the evidence establishes that the receiving business has
integrated the record into its own records, has verified or otherwise
established the accuracy of the contents of the record, and has relied on the
record in the conduct of its operations, and, second, that the opponent of
admission has not shown that the record is nonetheless not sufficiently
trustworthy to be admitted.
I. BACKGROUND AND PROCEDURAL HISTORY
[¶2] We draw the following brief account of this case from the procedural
record and the evidence offered or referenced at trial.
[¶3] In 2015, The Bank of New York Mellon commenced this foreclosure
action against Danielle Shone and Michael Buck. The Bank’s complaint alleged
that in 2005, Buck had taken out a loan from America’s Wholesale Lender and
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that, to secure Buck’s performance pursuant to the promissory note for that
loan, Shone and Buck had executed a mortgage on a Portland property they
owned. Although the original lender and mortgagee were third-party entities,
the Bank alleged that it ultimately acquired the note and mortgage. The Bank
also alleged that Buck had stopped making payments on the loan in 2008.
[¶4] The court held a bench trial on the complaint in October 2018.
There, the Bank offered an exhibit containing a notice of default and right to
cure purportedly sent to Shone and Buck by the law firm retained by Bayview
Loan Servicing, which serviced the note and mortgage for the Bank, along with
a purported U.S. Postal Service certificate of mailing. The Bank first attempted
to qualify the exhibit for admission in evidence by calling an employee of the
law firm to testify about that office’s procedures for creating and mailing
notices of default, but the court barred that testimony because the Bank’s
witness list had not properly identified the prospective witness by name or
capacity. The Bank next attempted to submit an affidavit from a law firm
employee as a mechanism for admitting the notice itself pursuant to M.R. Evid.
902(11). The court did not allow the Bank to use that procedure because it had
4
not, as required by the rule, provided Shone and Buck with reasonable advance
notice that it would seek to do so.1
[¶5] The Bank then attempted to present a testimonial foundation for
the exhibit through James D’Orlando, a litigation manager employed by
Bayview. After D’Orlando testified, the court excluded the notice from evidence
because the Bank failed to present evidence that D’Orlando had personal
knowledge about the law firm’s practices relating to the creation and mailing of
notices of default and right to cure. Because the Bank was therefore unable to
prove that it had satisfied the notice requirements imposed by 14 M.R.S. § 6111
(2018),2 the court entered judgment for Shone and Buck.3 After the court
1 Neither of those rulings is at issue on this appeal.
2This statute was recently amended to change the procedure for providing the notice.
See P.L. 2019, ch. 361 §§ 1-2 (effective Sept. 19, 2019) (codified at 14 M.R.S. § 6111(2-A) (2020)).
3Although, in the end, the trial in this case was limited to the Bank’s attempt to enter in evidence
the notice of default and right to cure, the Bank does not suffer the same fate as the
plaintiff-mortgagee in Wilmington Savings Fund Society, FSB v. Abildgaard, 2020 ME 48, 229 A.3d 789.
There, after the court excluded a similar notice from evidence but before the plaintiff presented
evidence or an offer of proof that covered the remaining elements of a foreclosure case, the plaintiff
voluntarily rested its case-in-chief, and the court entered judgment for the defendant. Id. ¶ 4. On
appeal, we held that as the result of the plaintiff’s choice to rest without presenting evidence that
could satisfy all elements of its case, we were required to affirm the adverse judgment irrespective
of whether the court’s evidentiary ruling was erroneous. Id. ¶ 5.
Here, in contrast, at Shone and Buck’s own suggestion, the parties and the court agreed that, as
the first step in the trial, because of the potentially dispositive nature of that issue, the Bank would
present evidence to try to establish that the notice was an admissible business record. After
excluding the document following D’Orlando’s testimony but without the Bank having rested its case,
the court proceeded to enter judgment against the Bank. Even though the Bank did not make any
offer of proof as to the remaining elements of its claim, it is clear that the Bank did not proceed in a
way that forfeited its argument on appeal as the mortgagee did in Abildgaard. Thus, if on remand the
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denied the Bank’s motion to alter or amend the judgment or for a new trial, the
Bank appealed to us. See 14 M.R.S. § 1851 (2020); M.R. App. P. 2A.
[¶6] After this case was initially briefed on appeal, we invited the parties
and any amici to file additional briefs on the question of whether we should
“consider adjusting application of . . . [Maine Rule of Evidence] 803(6), to track
application of [Federal Rule of Evidence] 803(6) as addressed in U.S. Bank
Trust, N.A. v. Jones, 925 F.3d 534 (1st Cir. 2019).” In addition to briefs filed by
the parties, we received amici curiae briefs filed by the Federal Housing Finance
Agency; Full Disclosure, LLC; Gerald F. Petruccelli, Esq.; Maine Attorneys Saving
Homes; the Maine Bankers Association; the Maine Credit Union League; Maine
Equal Justice; the National Association of Consumer Advocates et al.; the
National Consumer Law Center; PHH Mortgage Corporation; and Pine Tree
Legal Assistance, Inc.
II. DISCUSSION
[¶7] The pivotal issue here centers on the foundational showing that
must be made to admit an integrated business record—that is, a record created
by one entity and later integrated into the records of a second, separate entity.
trial court decides to admit the exhibit at issue, the court likely would need to reopen the record for
a full trial on all issues.
6
[¶8] The traditional method of admitting business records in evidence
pursuant to Rule 803(6) is through the testimony of a witness with personal
knowledge of the practices of the business or other entity that created the
record. The integrated records method is a different method that applies when
the record has, in effect, become a business record of a business other than the
business that created the record.4 See MRT Constr. v. Hardrives, Inc.,
158 F.3d 478, 483 (9th Cir. 1998) (“[R]ecords a business receives from others
Under both the traditional approach and the integrated records approach, the proponent of
4
admitting a business record must establish the following:
(A) The record was made at or near the time by—or from information transmitted
by—someone with knowledge;
(B) The record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit;
(C) Making the record was a regular practice of that activity.
M.R. Evid. 803(6)(A)-(C).
Under both approaches, the proponent of an exhibit may satisfy these criteria through direct
evidence of the regular practices of either the business that created the record or a business that has
integrated, verified, and relied upon a record received from another business. In each instance, proof
of the business’s regular practices can constitute circumstantial evidence of trustworthiness
sufficient to justify the inference that the record was created in a manner that satisfies the
Rule 803(6) criteria. See Boca Investerings P’ship v. United States, 128 F. Supp. 2d 16, 18 (D.D.C. 2000)
(“The theory [underlying Federal Rule 803(6)] is that if a statement is recorded in the ordinary
course of a regularly conducted activity, and if it is the regular practice of the business to record such
a statement, there is a sufficiently high degree of trustworthiness inherent in the document to ensure
its truthfulness, making cross-examination of the person who prepared the document less
necessary.”); U.S. Bank, N.A. v. Christmas, No. 26695, 2016 Ohio App. LEXIS 205, at *10 (Ohio Ct. App.
Jan. 22, 2016), vacated on other grounds, 54 N.E.3d 1267 (Ohio 2016) (“[A] court may admit a
document as a business record even when the proffering party is not the maker of the document, if
the other requirements of [Rule 803(6)] are met and the circumstances suggest that the record is
trustworthy. Trustworthiness of a record is suggested by the profferer’s incorporation into its own
records and reliance on it.”) (citations omitted).
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are admissible under Federal Rule of Evidence 803(6) when those records are
kept in the regular course of that business, relied upon by that business, and
where that business has a substantial interest in the accuracy of the records.”).
Thus, the integrated records approach eliminates the need for testimony about
the practices of the entity that created the record and shifts the focus to the
record’s status within the receiving entity.
[¶9] Evidence of the receiving entity’s reliance on the record in the
regular course of its business is important because a business’s reliance on
information in a record it did not create helps demonstrate the trustworthiness
of the record. Compare MRT, 158 F.3d at 483 (holding that invoices
incorporated into a company’s records were admissible under Rule 803(6) to
establish amounts paid because the company relied upon the amounts shown
in the invoices), with N.L.R.B. v. First Termite Control Co., 646 F.2d 424, 429-30
(9th Cir. 1981) (concluding that third-party records were not admissible under
Rule 803(6) to prove the origin of lumber because the recipient business did
not rely on the records to determine that origin).
[¶10] On the other hand, “mere possession or ‘custody’ of records . . .
does not qualify employees of the possessing party to lay the requisite
foundation, and reliance by the organization on records created by others,
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although an important part of establishing trustworthiness, without more is not
sufficient.” 2 Kenneth S. Broun et al., McCormick on Evidence § 292, at 476-77
(Robert P. Mosteller ed., 8th ed. 2020) (footnote omitted). When “the business
offering the records of another has made an independent check of the records,
has integrated them into their own business operation in a way that establishes
trustworthiness or contains other assurances of trustworthiness, or can
establish accuracy by other means, the necessary foundation may be
established.” Id. at 477-48 (footnotes omitted); see also United States v.
Sokolow, 91 F.3d 396, 403 (3d Cir. 1996) (stating that the business records
exception may apply to records obtained from others if the receiving business
obtains “adequate verification or other assurance of accuracy” (quotation
marks omitted)).
[¶11] The verification element of the integrated records approach
requires simply that the business receiving a record establish or confirm the
accuracy of the record in some way. See McCormick on Evidence § 292, at
477-78. For example, the recipient business may check the record for accuracy
before integrating and relying upon it in its own operations. See U.S. Bank Trust,
N.A. v. Jones, 330 F. Supp. 3d 530, 543 (D. Me. 2018), aff’d 925 F.3d 534 (1st Cir.
2019) (noting that the loan servicer “took steps to review the previous
9
servicer’s records in a way that assured itself of the accuracy of the records
during the boarding process before placing its own financial interest at stake
by relying on those records”). Another means of verification could be for the
receiving business to integrate and use the record in the course of its own
operations in a manner that confirms the accuracy of the record. See United
States v. Ullrich, 580 F.2d 765, 771-72 (5th Cir. 1978) (holding that the vehicle
inventory schedule prepared by the manufacturer and received by the dealer
was integrated and used in the dealer’s daily operations in a manner that
confirmed the accuracy of the schedule).
[¶12] Regardless of how verification occurs, “[t]he custodian company’s
independent check of the documents acts as a proxy for the requirement that
the records have been prepared by someone with personal knowledge of the
recorded events. By verifying the documents, the custodian company is in
essence acquiring personal knowledge of the recorded events, and thereby
effectively adopting the entries in the documents as his own.” Air Land
Forwarders, Inc. v. United States, 172 F.3d 1338, 1348 (Fed. Cir. 1999) (Bryson,
J., dissenting).
[¶13] Multiple federal circuit courts and numerous other states have
upheld the admission of integrated business records upon a showing of
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verification and reliance on the part of the receiving business, without the need
for testimony from the originating business. See, e.g., United States v. Adefehinti,
510 F.3d 319, 325-26 (D.C. Cir. 2007); Air Land Forwarders, Inc., 172 F.3d at
1341-42; United States v. Childs, 5 F.3d 1328, 1334-36 (9th Cir. 1993); United
States v. Doe, 960 F.2d 221, 223 (1st Cir. 1992); United States v. Jakobetz,
955 F.2d 786, 801 (2d Cir. 1992); United States v. Parker, 749 F.2d 628, 633
(11th Cir. 1984); Ullrich, 580 F.2d at 772; United States v. Carranco,
551 F.2d 1197, 1200 (10th Cir. 1977); see also State v. Fitzwater, 227 P.3d 520,
531-36 (Haw. 2010); Pizza Corner, Inc. v. C.F.L. Transp., Inc., 792 N.W.2d 911,
913-14 (N.D. 2010).
[¶14] We adopted the federal courts’ integrated records approach to
Rule 803(6) in Northeast Bank & Trust Co. v. Soley, 481 A.2d 1123, 1127
(Me. 1984), a decision that has never been overruled or questioned and that is
still good law.
[¶15] In Soley, we decided that the plaintiff bank’s practice of obtaining
prime rate information from another bank, integrating the information into its
own records, and relying on the information in its operations was sufficient to
support the admissibility of that information for its truth, without any
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testimony by a witness with personal knowledge of the sending bank’s
practices in developing the information:
Here, the information was transmitted by an employee of the
banking institution which was the source of that information,
which information was then integrated into the plaintiff’s records
and relied upon by the plaintiff in its own business operations. We
hold that under these circumstances the schedule satisfied the
requirements of M.R. Evid. 803(6) and was properly admitted.
481 A.2d at 1127.
[¶16] The Soley court emphasized the fact that the receiving entity had
relied upon the integrated records in its own business operations. See id. In
extending the business records exception to include business records created
by someone “not within the [proponent’s] organization,” id, we explained that
the regular indicia of reliability had been demonstrated because the bank had
an “obvious business incentive in assuring that this employee [of the
transmitting bank who reported the prime rate to the receiving bank] would
have personal knowledge of changes in the prime rate and would report those
changes accurately.” Id.
[¶17] Our endorsement of the integrated records approach in Soley
rested solidly on federal precedent. See id. (citing In re Ollag Constr. Equip.
Corp., 665 F.2d 43, 46 (2d Cir. 1981) (emphasizing the receiving business’s
regular use of and reliance on integrated records); Ullrich, 580 F.2d at 772
12
(upholding the admission of “records transmitted by persons with knowledge
and then confirmed and used in the regular course of the dealership’s
business”)). Our holding in Soley also relied upon the factors confirming
trustworthiness enumerated in the Notes of the Advisory Committee for the
Federal Rules of Evidence). 481 A.2d at 1127 n.3.
[¶18] Eight years after our Soley decision, we confirmed that holding by
noting that “we have recognized that in certain circumstances business records
may include information prepared outside the business.” Leen Co. v. Web Elec.,
Inc., 611 A.2d 83, 83-84 (Me. 1992). However, in Leen we upheld the trial
court’s exclusion of outside records, pointing out that such documents “are
admissible only if they contain the indicia of reliability that form the basis of
the business record exception.” Id. at 84 (quotation marks omitted). We
specifically discussed how the proponent of the records had failed to
demonstrate that reliability:
Here, Web sought to introduce through the testimony of its own
agent records of business correspondence prepared by others,
without providing any foundation to suggest that the records were
prepared by a person with knowledge of the cause of the delays or
were created in the ordinary course of business. The fact that a
document is received in the ordinary course of business does not
alone satisfy the foundational requirements of rule 803(6).
Id. at 84.
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[¶19] However, we adopted a different view of the integrated records
approach in a more recent line of cases, beginning with Beneficial Maine Inc. v.
Carter, decided twenty-seven years after Soley, and nineteen years after Leen.5
2011 ME 77, ¶ 13, 25 A.3d 96. Our decision in Carter endorsed the integrated
records approach, citing Soley:
The affiant whose statements are offered to establish the
admissibility of a business record on summary judgment need not
be an employee of the record’s creator. See, e.g., Ne. Bank & Trust
Co. v. Soley, 481 A.2d 1123, 1127 (Me. 1984). For instance, if the
records were received and integrated into another business’s
records and were relied upon in that business’s day-to-day
operations, an employee of the receiving business may be a
qualified witness.
Id. (citations omitted).
[¶20] Despite its reliance on Soley, our decision in Carter departed from
Soley by requiring that the qualified witness have personal knowledge of the
practices of both the business that created the record and the business that
received it, a requirement that negates the entire point of the integrated
5 The dissent suggests, Dissenting Opinion ¶ 38 n.14, that we arguably began to depart from our
holding in Soley in State v. Radley, in which we decided that the trial court erred in admitting business
records of one organization “through the testimony of a witness employed by an entirely different
organization, simply because her employer relied on that organization’s records in its own business
dealings.” 2002 ME 150, ¶ 16, 804 A.2d 1127. We distinguished the situation in Radley from that in
Soley, without overruling or questioning Soley. Id. ¶ 17 n.2. What Radley stands for, in keeping with
Soley and our decision today, is that reliance by one business upon the records of another, without
verification or corroboration of the accuracy of the records, is insufficient to support admission under
the integrated records approach.
14
records approach we adopted in Soley. See id. Even so, our Carter decision
contains no indication that we intended to depart from our holding in Soley.
Also, the underlying facts of Carter did not even involve an integrated records
issue because there was no evidence that the entity that created the records in
question had sent them to another entity. Carter, 2011 ME 77, ¶¶ 2-8,
25 A.3d 96. Instead, Carter stands for the proposition that an entity’s business
records cannot be admitted based on the testimony of a witness who has no
personal knowledge of the practices of the entity.6
[¶21] In three decisions since Carter, we continued to depart from our
holding in Soley, still without saying so or explaining why, by maintaining the
requirement that the proponent of admitting an integrated business record
present foundational testimony about the practices of the business that created
the record. See M & T Bank v. Plaisted, 2018 ME 121, ¶¶ 24, 31, 192 A.3d 601;
Deutsche Bank Nat’l Tr. Co. v. Eddins, 2018 ME 47, ¶ 14, 182 A.3d 1241; KeyBank
Nat’l Ass’n v. Est. of Quint, 2017 ME 237, ¶ 13, 176 A.3d 717.
6In Beneficial Maine Inc. v. Carter, Beneficial was the plaintiff in a mortgage foreclosure case.
2011 ME 77, ¶ 2, 25 A.3d 96. The qualifying witness, who was the affiant in the motion for summary
judgment, was an employee of HSBC, an entity that serviced the loan. Id. ¶ 3. The witness attempted
to lay the proper foundation for the introduction of Beneficial’s records, not HSBC records that
contained integrated records from Beneficial. Id. ¶ 4. The Carter court held that the affiant did not
have first-hand information regarding Beneficial’s records and therefore was not able to lay the
proper foundation pursuant to Rule 803(6). Id. ¶¶ 15-17.
15
[¶22] Although these decisions postdate Soley and Leen, none of them
overrules or distinguishes Soley or Leen, or even acknowledges any substantive
departure from Soley’s holding. Indeed, two of the four decisions nominally rely
on Soley—the most recent of the four decisions cites to Soley, as did Carter. See
Plaisted, 2018 ME 121, ¶ 31 n.10.
[¶23] In other words, Soley and Leen remain good law. Thus, although
the doctrine of stare decisis supports following Carter,7 the case for reaffirming
our holding in Soley also rests upon stare decisis. In that sense, the question
before us is less a matter of honoring stare decisis than a matter of resolving the
sharp and hitherto unexplained conflict between the two interpretations of
Rule 803(6) that we have endorsed at various times since 1984.
[¶24] Rule 803(6) was restyled in 2014 and then amended in 2018 to
align with its federal counterpart. See M.R. Evid. 803 Advisory Committee
7 The dissent advances several objections to our endorsement of the integrated records approach,
including an objection based on stare decisis. Dissenting Opinion ¶¶ 54-61. Given that Soley predates
Carter and has never been questioned or overruled, the integrated records approach has its own
foundation in stare decisis. The dissent also contends that the integrated records approach rewrites
Rule 803(6). Dissenting Opinion ¶¶ 32, 65. But the traditional approach and the integrated records
approach are two similar evidentiary paths to proving the same Rule 803(6) criteria. Both
approaches call for first-hand testimony about the practices of a business—either the business that
created the record or the business that received the record—based upon which it can be inferred, as
a matter of circumstantial evidence, that the record in question meets the Rule 803(6) criteria. Based
on its view that we are rewriting the rule, the dissent also contends that we should be engaging in
rulemaking as the Supreme Judicial Court rather than opining as the Law Court. Dissenting Opinion
¶¶ 65-67. The contention would be well-taken if we were adopting a new interpretation of the rule,
but we are simply reaffirming an interpretation of the rule that we first endorsed thirty-six years ago.
16
Note—August 2018; M.R. Evid 803 Maine Restyling Note—November 2014.
The Advisory Committee Notes accompanying both the 2014 restyling of
Rule 803(6) and the 2018 amendment indicate that the changes in the language
of the rule were not intended to make any substantive change in the rule, and
therefore neither of these changes to Rule 803(6) addressed or resolved the
conflict between the Soley and Carter lines of cases.
[¶25] As our reliance in Soley on federal authority illustrates, we
regularly look to federal analysis when interpreting our own identical or nearly
identical rules. See, e.g., State v. Gorman, 2004 ME 90, ¶¶ 30-31, 854 A.2d 1164
(comparing M.R. Evid. Rule 803(5) with Fed. R. Evid. 803(5)); State v. Discher,
597 A.2d 1336, 1342 (Me. 1991) (same). Reaffirming Soley aligns our
interpretation of Maine Rule of Evidence 803(6) with the widely accepted
interpretation that federal courts apply to the identical federal rule. It
promotes a uniformity of application of the business records exception in
Maine’s federal and state courts, and—in that sense—discourages
forum-shopping.
[¶26] The opposition of the appellees and some of the amici to the Jones
and Soley integrated records approach appears grounded primarily in their
view that the recordkeeping practices of mortgage loan servicers such as
17
Bayview are too unreliable to justify the admission of a record that one servicer
has received from a prior servicer or other entity without testimony based on
personal knowledge regarding the practices and procedures of the business
that created the record. The lack of reliability of records submitted in
foreclosure cases by some residential mortgage lenders or loan servicers has
been amply documented. See, e.g., HSBC Mortg. Servs., Inc. v. Murphy,
2011 ME 59, ¶ 15 n.8, 19 A.3d 815 (noting “the recurring problem of lenders
submitting unreliable affidavits and documents in residential foreclosure
proceedings”).
[¶27] Still, the recordkeeping shortcomings of some members of a
particular business sector should not drive our interpretation of a rule of
evidence that applies to the records of all businesses and, more broadly, as
Rule 803(6)(B) indicates, to the records of any “organization, occupation, or
calling.” If the records kept by mortgage lenders or loan servicers in particular
are categorically unreliable, more stringent proof requirements might be
appropriate.8 But there is no good reason to require in every case testimony
based on personal knowledge of the practices of the business that created a
8 For example, the Maine Legislature has enacted special requirements for collection actions
brought by consumer debt buyers. See 32 M.R.S. § 11019 (2020); see also P.L. 2017, ch. 216, § 6
(effective Nov. 1, 2017).
18
record when the business that received the record can meet the integration,
verification, and reliance criteria of the integrated records approach.
[¶28] Moreover, the federal and Maine versions of Rule 803(6) guard
against the admission of untrustworthy integrated business records by
precluding admission, even when the proponent makes an initial showing of
integration, verification, and reliance, if the opposing party “show[s] that the
source of information or the method or circumstances of preparation indicate
a lack of trustworthiness.” Fed. R. Evid. 803(6)(E); M.R. Evid. 803(6)(E). Lastly,
the integrated records approach is only a means of laying a foundation for the
admission in evidence of a record; it does not purport to define or establish the
weight to be given to the record.
[¶29] In this case, the trial court’s exclusion of the exhibit at issue was
consistent with the Carter line of cases, because the Bank did not present any
first-hand testimony about the practices of the law firm that purportedly
created and mailed the notices of default.
[¶30] Because we today reaffirm the integrated records approach that
we adopted in Soley, under which such foundational evidence is unnecessary,
we must vacate the judgment and remand the matter for the trial court to
determine, based on the current record, whether the Bank’s exhibit, which
19
includes the two purported notices of default and a separate purported U.S.
Postal Service certificate of mailing, meets the integration, verification, and
reliance criteria for admission in evidence as an integrated record.9
The entry is:
Judgment vacated. Remanded for further
proceedings consistent with this opinion.
HJELM, A.R.J., dissenting.
[¶31] The Court today remands this case for the trial court to reconsider
its ruling that excluded from evidence an integrated business record critical to
the Bank of New York Mellon’s foreclosure claim, with the new determination
to be based not on Maine law but on a materially different standard for
admissibility that is used in other jurisdictions, notably a number of federal
courts.
9 When admission of evidence under the business records exception to the hearsay rule is
challenged, “‘we review a trial court’s foundational findings to support admissibility for clear error
and its ultimate determination of admissibility for an abuse of discretion.’” Am. Express Bank, FSB v.
Deering, 2016 ME 117, ¶ 12, 145 A.3d 551 (quoting State v. Abdi, 2015 ME 23, ¶ 16, 112 A.3d 360).
Thus, the determination of whether some or all of the materials contained in the exhibit at issue is
admissible based on the current record should, at least initially, be made by the trial court. Nothing
in this opinion should be taken to imply a view regarding whether the exhibit should be admitted as
an integrated record. In light of our adoption of a different evidentiary standard than was argued at
trial, the court may reopen the record to allow further argument by the parties. If the court decides
to admit the exhibit, the trial may resume on all issues in contention.
20
[¶32] To arrive at its conclusion, the Court errs in two fundamental ways.
The first is analytical. As the Court acknowledges, the trial court correctly
applied Maine law that governs the admissibility of business records. See M.R.
Evid. 803(6). By nonetheless vacating the judgment, however, the Court
derogates from principles of stare decisis and improperly dispenses with that
well-established Maine jurisprudence—jurisprudence that we have developed
over nearly the past decade and that is entirely consonant with Rule 803(6).
The second error is structural. Because the Court’s reasoning is not supported
by a sound jurisprudential rationale, the Court must be seen as rewriting
Rule 803(6), thereby improperly blending its nonadjudicatory authority to
promulgate rules in its capacity as the Maine Supreme Judicial Court with its
adjudicatory authority, when sitting as the Law Court, to consider appeals. For
these reasons, I respectfully dissent.
[¶33] In this opinion, I will first review Maine’s governing law that the
Court now abandons and discuss the reasons why that law should remain
controlling authority in Maine courts. Second, I will explain the basis for my
conclusion that the remaining rationale for the Court’s decision wrongly strays
into its discrete regulatory rulemaking function.
21
A. Maine’s Law on Integrated Business Records
1. Maine’s Case Law
[¶34] The essential issue presented in this case focuses on the showing
that, pursuant to Maine Rule of Evidence 803(6),10 must be made by the
proponent of an integrated business record—a document created, maintained,
and handled by one entity and then transferred to and held by a second entity—
for the record to be admitted in evidence. The particular record at issue here
is a notice of default and right to cure purportedly mailed by the law firm
engaged by the mortgage servicer to the mortgagors, Danielle Shone and
Michael Buck.
10 In its current formulation, Maine Rule of Evidence 803(6) creates an exception to the general
exclusion of hearsay evidence and allows the court to admit a business record, i.e., a “[r]ecord[] of a
regularly conducted activity,” if the following criteria are satisfied:
(A) The record was made at or near the time by—or from information transmitted
by—someone with knowledge;
(B) The record was kept in the course of a regularly conducted activity of a business,
organization, occupation, or calling, whether or not for profit;
(C) Making the record was a regular practice of that activity;
(D) All these conditions are shown by the testimony of the custodian or another
qualified witness, or by a certification that complies with Rule 902(11), Rule 902(12)
or with a statute permitting certification; and
(E) The opponent does not show that the source of information or the method or
circumstances of preparation indicate a lack of trustworthiness.
22
[¶35] In its opinion, the Court states that an integrated business record
is admissible pursuant to Rule 803(6) if the proponent presents, as a
foundational predicate, testimony from a witness, who need not have personal
knowledge of the originating entity’s record-related practices, that the
receiving entity merely integrated, verified, and relied on the document.
Court’s Opinion ¶ 30. Over the course of nearly the past decade, however, we
have consistently and explicitly articulated two categorical foundational
elements for an integrated business record, which, as I will discuss below, are
very different from the elements that the Court prescribes today. First, our case
law establishes that the proponent of an integrated business record must
demonstrate that the record-related protocols of both the originating and
receiving entities meet the requirements of Rule 803(6)(A)-(C), which set
specific evidentiary standards for when the document must have been created,
how it was maintained, and whether those business practices were routine.
And second, to be a “qualified witness” within the meaning of Rule 803(6)(D),
the foundational witness must have personal knowledge about those protocols
maintained by each entity.
[¶36] It is manifest that the standard that the Court now adopts is
materially different from the criteria prescribed in controlling Maine case law.
23
A review of those cases demonstrates that our articulation of the evidentiary
standards was not, as the Court seems to suggest, unintentional or inadvertent.
Indeed, the clear and explicit language we used to frame those requirements
demonstrates that, in those cases, we meant what we said.
[¶37] The line of cases defining our current jurisprudence began no later
than our 2011 opinion in Beneficial Maine Inc. v. Carter, 2011 ME 77, 25 A.3d
96,11 which addressed Rule 803(6) in its then-existing formulation.12 There, we
stated that for an integrated business record to be admissible, the proponent
11 The articulation of our current standard arguably had its genesis even earlier, in State v. Radley,
where we stated, “To permit the State to proffer the [integrated business] records . . . through the
testimony of a witness employed by an entirely different organization, simply because her employer
relied on that organization’s records in its own business dealings, is wholly unsupported by rule or
law.” 2002 ME 150, ¶ 16, 804 A.2d 1127. We further stated that, instead, the proponent must
demonstrate through a knowledgeable witness that the upstream entity created, maintained, and
transmitted the record in a way that satisfied the requirements now found in Rule 803(6)(A)-(C).
Radley, 2002 ME 150, ¶ 16, 804 A.2d 1127. These are the criteria for the admissibility of an integrated
business record that we again articulated beginning nine years later in Beneficial Maine Inc. v. Carter,
2011 ME 77, 25 A.3d 96. Despite the analysis contained in Radley, however, for the reasons I discuss
below, see infra n.14, that opinion may not constitute a full and clear demarcation from the
evidentiary standard described in Northeast Bank & Trust Co. v. Soley, 481 A.2d 1123, 1127
(Me. 1984)—the standard to which the Court now returns. Rather, that change in our law was more
definitively established in Carter.
12 The Rule then stated in pertinent part that a business record was admissible if the record was
“made at or near the time by, or from information transmitted by, a person with
knowledge, if kept in the course of a regularly conducted business, and if it was the
regular practice of that business to make the . . . record . . . , all as shown by the
testimony of the custodian or other qualified witness, . . . unless the source of
information or the method or circumstances of preparation indicate lack of
trustworthiness.”
Carter, 2011 ME 77, ¶ 12 n.5, 25 A.3d 96 (quoting M.R. Evid. 803(6) (Tower 2010)). As I discuss in
the text, infra ¶¶ 39, 48-51, the current version of the Rule is substantively the same as the
formulation of the Rule discussed in Carter.
24
must demonstrate that the originating entity routinely used specified protocols
to create the business record, maintain it, and transmit it to the receiving entity,
all in a way that, in the end, is sufficient to allow the receiving entity to rely on
it. Id. ¶¶ 13-14. Thus, although, as the Court states today, Court’s Opinion ¶ 9,
reliability generally is germane to the evidentiary framework, there is more to
it than that because, as we stated in Carter and subsequent cases described
below, the rule still requires foundational evidence of certain specific historical
circumstances, which could then form the basis to allow some resulting
assurance that the information in the record is reliable. We also stated in Carter
that although the foundational witness need not be an employee of the
originating entity, that witness must—as the rule explicitly requires—be
“qualified,” which means that the witness must “demonstrate knowledge” of the
originating entity’s specific record-related practices now described in
Rule 803(6)(A)-(C).13 2011 ME 77, ¶¶ 13-14, 25 A.3d 96.
The Court asserts that, because Carter stated that the witness need not be an employee of the
13
originating entity, our opinion in that case “endorsed the integrated records approach” that had been
set out in Soley, 481 A.2d at 1127. Court’s Opinion ¶ 19. For the reasons I explain in the text, however,
Carter superseded Soley by articulating materially different criteria for an integrated business record
to be admissible. Additionally, we have never held that, to be “qualified” within the meaning of
Rule 803(6)(D), the foundational witness must be an employee of the entity whose record-related
practices are being described in that witness’s testimony. The test for whether a witness is
“qualified” rests on the nature and source of the witness’s knowledge, not the witness’s employment
or capacity. See M & T Bank v. Plaisted, 2018 ME 121, ¶¶ 7-12, 24, 192 A.3d 601; Deutsche Bank Nat’l
Tr. Co. v. Eddins, 2018 ME 47, ¶ 12, 182 A.3d 1241; KeyBank Nat’l Ass’n v. Est. of Quint, 2017 ME 237,
25
[¶38] As the Court correctly notes, Court’s Opinion ¶ 20, those standards
heightened the requirements for the admissibility of integrated business
records as set out in our previous case law, which had allowed the trial court to
admit such evidence when there were merely “indicia of [the record’s]
reliability”—something that could be demonstrated by as little as foundational
evidence that the receiving entity had integrated the record into its own
records and relied on it. Ne. Bank & Tr. Co. v. Soley, 481 A.2d 1123, 1127
(Me. 1984).14 Carter’s clear and explicit articulation of more exacting criteria
¶ 15, 176 A.3d 717; Carter, 2011 ME 77, ¶¶ 13-14, 25 A.3d 96. Thus, the Court’s attempt to equate
the analyses in Carter and Soley is a curious one.
14 As I state above, see supra n.11, in Radley we at least began our move away from the approach
described in Soley a full nine years before Carter. At issue in Radley was the admissibility of a report
of a funds transfer offered by the State. 2002 ME 150, ¶ 5, 804 A.2d 1127. The foundational witness,
who was an employee of the receiving entity, testified that her office had received the report from
another entity and relied on it—a foundation that was sufficient pursuant to Soley. Id. We held,
however, that the witness was not “qualified” within the meaning of Rule 803(6) because she had no
knowledge of the manner by which the sending entity created, maintained, or transmitted the report
to the receiving entity. Id. ¶ 15. Additionally, at trial the proponent—the State—had failed to present
any evidence of whether the record was created at or near the time of the event it described, whether
the record was created by someone with knowledge of the event, and whether the entity had a
regular practice of creating such a record. Id. ¶ 16. These are the criteria for the admissibility of an
integrated business record that we articulated nine years later in Carter. Because in Radley the State
had failed to develop a foundation, based on the testimony of a witness with knowledge, that the
sending entity’s record-related practices met the requirements that are now found in
Rule 803(6)(A)-(C), we concluded that the trial court erred by admitting the record in evidence. Id.
In a footnote in Radley, however, we did bring into question the scope of the holding and its effect
on Soley. Id. ¶ 17 n.2, 804 A.2d 1127. We addressed the State’s contention that admission of the
integrated business record was a “natural extension” of Soley because the foundational witness had
testified that the receiving entity received and relied on it. Id. We rejected that entreaty because the
report provided information that had been reported from yet another underlying source and because
it described the defendant’s conduct rather than “objective and verifiable” information such as was
involved in Soley (information about interest rates). Id.
26
for admissibility, however, can leave no doubt that we intended to implement
those more refined and disciplined standards, which also, unlike those
described in Soley, track the requirements as they were plainly stated in the
rule.
[¶39] The entire body of the Maine Rules of Evidence was restyled
effective at the beginning of 2015, more than three years after we issued our
decision in Carter. See 2014 Me. Rules 15 (effective Jan. 1, 2015). The only
change to Rule 803(6) created by the restyling was the helpful separation of the
rule’s foundational elements into discrete subparts. Cf. M.R. Evid. 803(6)
(Tower 2010). When the Advisory Committee on the Maine Rules of Evidence
presented the proposed restyled rules to the Supreme Judicial Court, the
Committee made explicit that the purpose of the restyling effort was to make
the language contained in the rules clearer while still “preserv[ing] the
substance of the respective rules without change.” Advisory Committee on the
Maine Rules of Evidence Note: Proposed Restyled Rules of Evidence [2014].
Therefore, at the very least, nine years before Carter, our decision in Radley signaled a limitation
on the holding in Soley by requiring the proponent to present testimony from a knowledgeable
foundational witness that the practices of the originating entity met the requirements now set out in
subparts A through C of Rule 803(6). But Radley did not make a clean break from Soley because of
the discussion in the footnote that appears to have distinguished Soley in part based on differences
in the facts. Radley, 2002 ME 150, ¶ 17 n.2, 804 A.2d 1127. I therefore treat Carter as the analytical
divide even though Radley certainly presaged that development by bringing Soley into considerable
question that much earlier.
27
This means that, although having occasion to do so through its comprehensive
review of the rules, the Advisory Committee did not recommend a change from
the way we had construed Rule 803(6) several years earlier in Carter. Further,
our consideration of the proposed restyled body of rules also presented us with
the opportunity to rewrite or otherwise clarify Rule 803(6) in a way that would
alter Carter’s standards for the admissibility of integrated business records and
restore Soley’s. If our analysis in Carter had been mistaken, as the Court
concludes today, we could and presumably would have done so. But we did not,
and so the substance of Rule 803(6) remained the same, and Carter remained
good law.
[¶40] When we first considered and applied restyled Rule 803(6), in
KeyBank National Ass’n v. Estate of Quint, we quoted directly from Carter and
reiterated the requirement for the admissibility of integrated business records
that the foundational witness, if an employee of only the receiving entity, must
have the requisite knowledge of the regular practices of both the originating
and receiving entities: “[a] qualified witness is one who was intimately involved
in the daily operation of the business and whose testimony showed the
firsthand nature of his knowledge.” 2017 ME 237, ¶ 15, 176 A.3d 717
(quotation marks omitted). But the foundational witness need not be an
28
employee of the originating entity, in which case the witness must have
“sufficient knowledge of both businesses’ regular practices” in a measure that
demonstrates the reliability and trustworthiness of the information contained
in the document. Id. (quotation marks omitted). We affirmed the judgment
entered for the mortgagor because the trial court had correctly concluded that
the mortgagee did not develop foundational evidence that the originating entity
had engaged in the regular business practices meeting the requirements of the
rule as explained in Carter. Id. ¶ 19. Further, true to the provisions of the rule
and the Advisory Committee’s explanation of the proposed restyled rules, we
viewed restyled Rule 803(6) as containing the same substantive requirements
as the previous version. See id. ¶¶ 14-15. In other words, we reaffirmed the
Carter analysis, and that case therefore again remained good law.
[¶41] Similarly, in Deutsche Bank National Trust Co. v. Eddins, another
foreclosure case involving an integrated business record where the restyled
version of Rule 803(6) was applicable, we again stated that, for the document
to be admissible, the foundational witness must have “adequate knowledge of
the processes used by the entity that created and preserved the document.”
2018 ME 47, ¶ 12, 182 A.3d 1241. We also stated explicitly that “[t]he
incorporation of one entity’s record into the records of the receiving entity is
29
not a sufficient basis, by itself, for the admissibility of that record.” Id.
(emphasis added).
[¶42] The most recent case in which we considered the admissibility of
integrated business records is M & T Bank v. Plaisted, 2018 ME 121, 192 A.3d
601. There, the foundational witness was an employee of the originating entity
and was familiar with that business’s record-related practices, but we
concluded that, because he had no “personal knowledge” of the receiving
entity’s business practices, the integrated business record in the possession of
the receiving entity was not admissible. Id. ¶¶ 7-12, 24. This again
demonstrates that the proponent’s foundation must include testimony from a
witness with firsthand knowledge that the record-related practices of each
entity satisfy the requirements of Rule 803(6)(A)-(C).
[¶43] These cases—decided over the course of nearly a decade and
perhaps longer, see supra nn.11, 14, and all decided unanimously and without
doctrinal interruption—establish the standards that govern the admissibility
of integrated business records pursuant to Rule 803(6). The cases confirm that
the proponent must present evidence that the practices of both the originating
and receiving entities meet the specific criteria set out in subparts A through C;
an attempt to show reliability in some other way falls short. The cases also
30
require that the foundation emanate from one or more witnesses who, to be
“qualified” within the meaning of Rule 803(6)(D), must have actual familiarity
with the processes used by both the originating and receiving entities for
creating, handling, and retaining the business record at issue.
[¶44] In contrast, the standard announced today by the Court allows
admission of an integrated business record on foundational evidence that the
receiving entity integrated, verified, and relied on the document it received
from the originating entity. Further, as the Court describes the standard, the
receiving entity can “verify” the record when that entity “simply
. . . establish[es] or confirm[s] the accuracy of the record in some way.” Court’s
Opinion ¶ 11 (emphasis added). That standard—particularly the highly
nonspecific criterion for how the receiving entity may verify a record’s
accuracy—is entirely at odds with, and is insufficient to satisfy, the plain
language of Rule 803(6) and our interpretive case law since at least 2011.
Despite that legal authority and the clear requirements of Rule 803(6)(A)-(D),
based on the Court’s decision today, no longer will the proponent be required
to present evidence, based on the testimony of a “qualified witness” as we have
construed that term, see Carter, 2011 ME 77, ¶¶ 13-14, 25 A.3d 96, that the
record was made at the time or near the time of the recorded event by someone
31
with knowledge of the event, that the document was kept in the course of the
originating business’s regularly conducted activity, and that creating the record
was among the originating business’s regular practices.
[¶45] Notwithstanding the interpretation of Rule 803(6) it announces
today, the Court states that the requirements of Rule 803(6) will continue to
govern the admissibility of integrated business records and that the proponent
will still be required to present foundational evidence from which it may be
“inferred” that the originating entity’s practices satisfy the predicate elements
in the Rule. Court’s Opinion ¶ 23 n.7. This assertion is belied by the very
evidentiary standard the Court adopts here. For an integrated business record
to be admissible from now on, the proponent will need only present evidence
that the downstream entity received, verified, and relied on the document
created by the upstream entity. As I have discussed above, however,
Rule 803(6) prescribes standards that are different and more exacting. The
three steps to be taken by the receiving entity that the Court finds to be
cumulatively sufficient—receipt, verification, and reliance—do not bear any
meaningful or predictable relationship to the particularized requirements of
the Rule, which center on a showing of specific practices used by the originating
entity in creating, maintaining, and transmitting the document. See M.R.
32
Evid. 803(6)(A)-(C). Despite the Court’s attempts to minimize or even erase
the differences, the requirements prescribed by the Rule in fact are
qualitatively distinct from the more tolerant criteria the Court adopts today.
[¶46] The Court also asserts several times that within our current
jurisprudence there is a “conflict” regarding the admissibility of integrated
business records. Court’s Opinion ¶¶ 1, 23, 24. I submit, with respect, that the
Court is wrong. Our decisions beginning no later than with the 2011 opinion in
Carter establish a consistent and clear set of standards for the admissibility of
integrated business records. That the evidentiary criteria articulated in those
cases may differ from those set out in older cases, such as Soley, does not create
an ongoing conflict. Rather, Carter and the cases that follow represent a
succession by which previous law has been superseded. Further, the Court
describes Soley as “good law” and states that there was no indication in Carter
of an intention to depart from Soley. Court’s Opinion ¶¶ 20, 23. That is plainly
not the case, as is made clear by our analysis and discussion of the issue in our
opinions beginning with Carter—cases that the Court now effectively must
overrule to reinstate pre-Carter jurisprudence.15
Not once in its opinion does the Court directly state that it is overturning the line of cases
15
beginning with Carter, although that is clearly what the Court is doing.
33
[¶47] In doing so, the Court writes off a decade’s or more worth of our
decisions, beginning with Carter (if not State v. Radley, 2002 ME 150, 804 A.2d
1127, see infra nn.11, 14) and continuing through Plaisted, because, the Court
suggests, we did not pay enough attention to the admissibility standards
contained in earlier decisions and therefore decided those cases based on
oversight and inadvertence. See Court’s Opinion ¶¶ 20-22. That view, however,
cannot account for our explicit articulation of pertinent evidentiary standards
in the cases beginning with Carter, and, regrettably, it reflects a diminution of
the weight and significance that should be attributed to our decision-making
process, which, although certainly not infallible, is exercised with care, and with
sensitivity to and appreciation for our role as the court of last resort.
2. 2018 Amendment to Rule 803(6)
[¶48] The Bank and several of its supporting amici place significance on
a 2018 amendment to Rule 803(6)(E), 2018 Me. Rules 09 § 2 (effective Aug. 1,
2018), to support the conclusion that we should now interpret the rule as do
other jurisdictions, including specifically the federal courts as exemplified in
U.S. Bank Trust, N.A. v. Jones, 925 F.3d 534 (1st Cir. 2019).16 I disagree.
16 In that case, the First Circuit stated that there is no material difference between the Maine and
federal approaches to the admissibility of integrated business records. U.S. Bank Tr., N.A. v. Jones, 925
F.3d 534, 539 & n.1 (1st Cir. 2019). I respectfully submit that this is not so because the analysis
described in Jones tolerates the absence of any personal knowledge by the witness about the
34
[¶49] The modest change implemented by the 2018 amendment does
not have such a radical effect. The amendment did nothing more than fill a gap
in the allocation of the burden of proof on a limited aspect of the rule, by
providing that the burden to demonstrate a lack of trustworthiness sufficient
to defeat admission of the proffered document rests with the opponent, thereby
clarifying that the proponent is not required to demonstrate the absence of
indicia of untrustworthiness.17 See M.R. Evid. 803(6)(E). The amendment did
not introduce the general consideration of a business record’s
untrustworthiness. That factor was already present in the prior formulation of
the rule. See M.R. Evid. 803(6)(E) (Tower 2017). The amendment also did not
touch the specific predicate criteria for admission of a business record
contained in subparts A through C: whether the document was made at or near
the time of the recorded event by, or with information from, someone with
originating entity’s records practices and does not require the proponent to present foundational
evidence that the record-related practices of the originating entity meet the requirements of
Rule 803(6)(A)-(C). Jones, 925 F.3d at 538. These principles run contrary to Maine law, as is shown
by my review of our case law. Indeed, in now abandoning Maine’s current case law and adopting the
framework described in Jones, the Court confirms the existence of the differences between the two
approaches.
17 As the result of the 2018 amendment, Rule 803(6)(E) now provides that a business record
meeting the standards set out in the remaining aspects of the Rule is admissible if “[t]he opponent
does not show that the source of information or the method or circumstances of preparation indicate
a lack of trustworthiness.” See 2018 Me. Rules 09 § 2 (amending M.R. Evid. 803(6)(E)); see also supra
n.10 (setting out the current Rule in its entirety).
35
knowledge; whether the record was created in the normal course; etc. Further,
the amendment did not alter the basis or measure of knowledge that the
foundational witness must have: the witness still must be “qualified” pursuant
to Rule 803(6)(D), a concept that we had addressed and explained in our case
law outlined above.
[¶50] The limited nature of the 2018 amendment is made even more
apparent by the statement of the Advisory Committee on the Maine Rules of
Evidence, accompanying the submission of the proposed rule amendment to
the Supreme Judicial Court, that the rule change was not substantive—it would
not change the factors that bear on the determination of admissibility. M.R.
Evid. 803 Advisory Committee Note – August 2018. As the Advisory Committee
explained, the amendment merely codified the practice that was already being
followed by Maine courts and litigants. Id. Both this description of the
amendment and the nature of the amendment itself confirm its nonsubstantive
content, further undermining use of the amendment as a springboard to justify
substantial substantive changes to separate components of the evidentiary
standard governing the admissibility of integrated business records. To
conclude that this limited amendment contributes to a wholesale revision of
36
the entire analysis governing integrated records reads far too much into such a
narrow rule change.
[¶51] In my view, Maine law is clear, and the Court’s efforts to tease out
vestiges of pre-Carter jurisprudence from current case law, see Court’s Opinion
¶¶ 19, 22, do not change that fact. The proponent of an integrated business
record must demonstrate, through testimony of a witness with knowledge, that
the originating and receiving entities each engaged in record-related practices
that satisfy the requirements of Rule 803(6)(A)-(C). Contrary to the Court’s
conclusion, the receiving entity’s mere integration, verification, and reliance on
the originating entity’s record is not sufficient to render the record admissible.
See supra ¶¶ 44-45.
[¶52] At the trial in this action, the dispositive issue became the
admissibility of a notice of default and right to cure ostensibly created and
issued by the law firm engaged by the servicer of the mortgage. See Bank of Am.,
N.A. v. Greenleaf, 2014 ME 89, ¶ 18, 96 A.3d 700 (stating that proof of mailing
or other authorized method of service is one of the elements of a foreclosure
case); 14 M.R.S. § 6111(3) (2018), repealed and replaced by P.L. 2019, ch. 361
§§ 1, 2 (effective Sept. 19, 2019) (codified at 14 M.R.S. § 6111(2-A) (2020)). The
Bank developed no evidence that the foundational witness, who was an
37
employee of the servicer, oversaw, reviewed, or had any familiarity with the
law firm’s internal processes for creating and mailing default notices, and the
witness did not describe any such processes themselves, including the mailing
process. As the Court itself recognizes, Court’s Opinion ¶ 29, and contrary to
the Bank’s contention on appeal, the trial court correctly determined, based on
that record and the current, controlling Maine law, that the Bank had not
qualified the notice as an admissible integrated business record.
[¶53] Because the court committed no error when it excluded the notice,
the judgment should be affirmed, unless our cases, beginning with Carter,
establishing the standards for the admissibility of integrated business records
should be overturned. This question directly implicates principles of stare
decisis.
3. Stare Decisis18
[¶54] An analytical cornerstone of jurisprudence, the doctrine of stare
decisis calls upon the courts to respect legal precedent in order to provide
18 It bears note that the Bank itself has not explicitly asserted that current Maine case law should
be overturned. In fact, while this appeal was pending we raised the issue and invited the parties and
amici to submit briefs on the question of whether, in light of the First Circuit’s decision in Jones, we
should change the way we apply Rule 803(6) to integrated business records. In its supplemental
brief, the Bank then asserted that adoption of Jones would actually clarify rather than change Maine’s
current law on integrated business records. Nonetheless, the Bank also argued that the trial court
incorrectly applied Maine’s current law to the evidence, thereby making it unduly difficult for a
proponent to achieve admission of integrated business records—a particular challenge, presumably,
for mortgagees given that sequential ownership and management of mortgages is common. See
38
“stability to the law and enable[] the public to place reasonable reliance on
judicial decisions affecting important matters. Even when we have a certain
unease with the analysis of a prior decision, we do not overrule the decision
without a compelling and sound justification.” McGarvey v. Whittredge, 2011
ME 97, ¶ 63, 28 A.3d 620 (Levy, J.) (quotation marks omitted). As the Chief
Justice of the United States has recently stated, the principle of stare decisis “is
grounded in a basic humility that recognizes today’s legal issues are often not
so different from the questions of yesterday and that we are not the first ones
to try to answer them. Because the private stock of reason . . . in each [person]
is small, . . . individuals would do better to avail themselves of the general bank
and capital of nations and of ages.” June Med. Servs., L.L.C. v. Russo, --- U.S. ---, ---,
140 S. Ct. 2103, 2134 (2020) (Roberts, C.J., concurring) (quotation marks
omitted).
[¶55] To be sure, respect for precedent is not an absolute bar that ossifies
obsolete judicial reasoning and conclusions. Dyer v. Me. Drilling & Blasting, Inc.,
2009 ME 126, ¶ 28, 984 A.2d 210; MacDonald v. MacDonald, 412 A.2d 71, 74
Homeward Residential, Inc. v. Gregor, 2015 ME 108, ¶ 13, 122 A.3d 947. To the contrary, the trial
court’s analysis was entirely faithful to Maine’s current evidentiary standards. Consequently, the
Bank’s complaint about the effect of the court’s ruling can be seen, at most, as a de facto challenge to
our present case law governing Rule 803(6), even though the Court has now proceeded as if the Bank
had asked us more directly to overrule our precedent.
39
(Me. 1980) (stating that stare decisis does not require “judges of the present,
who like their predecessors cannot avoid acting when called upon, . . . to act as
captives of the judges of the past, restrained without power to break even those
bonds so withered by the changes of time that at the slightest touch they would
crumble”). Nonetheless, in order to promote predictability and stability in the
law and to avoid arbitrariness, “appellate courts proceed with great care before
overruling a prior decision, and do so only after careful analysis and based on a
compelling reason. We do not disturb a settled point of law unless the
prevailing precedent lacks vitality and the capacity to serve the interests of
justice.” State v. Bromiley, 2009 ME 110, ¶ 6, 983 A.2d 1068 (citation omitted)
(quotation marks omitted).
[¶56] Considerations relevant to whether precedent should be cast aside
include whether the existing approach has “fallen into jurisprudential
disrepute and is disapproved in better-considered recent cases and in the
authoritative scholarly writings,” Dyer, 2009 ME 126, ¶ 28, 984 A.2d 210
(quotation marks omitted); whether “the passage of time and changes in
conditions” call for a reassessment of existing law to the point of “reaching a
different result,” Est. of Galipeau v. State Farm Mut. Auto. Ins. Co., 2016 ME 28,
¶ 15, 132 A.3d 1190 (quotation marks omitted); and the administrability of the
40
law at issue, June Med. Servs., --- U.S. at ---, 140 S. Ct. at 2134 (Roberts, C.J.,
concurring) (citing Janus v. AFSCME, Council 31, --- U.S. ---, 138 S. Ct. 2448,
2478-79 (2018)).
[¶57] This case does not present a justification for abandoning current
Maine law governing the admissibility of integrated business records. We
suggested those evidentiary standards as early as 2009 in State v. Radley, 2002
ME 150, 804 A.2d 1127, see supra nn.11, 14, and we have articulated them
clearly and consistently since 2011 and as recently as 2018—hardly an
antiquated body of law. Our case law has not become obsolete or fallen into
disrepute over time because of advances in legal thought. Cf. Dyer, 2009 ME
126, ¶ 18, 984 A.2d 210 (concluding that developments in the law over the
previous half-century warranted changes in applicable Maine law). This is also
not a situation where our current law creates such unfairness as to justify
rejection of recent precedent. Cf. Myrick v. James, 444 A.2d 987, 999 (Me. 1982),
superseded by statute on other grounds as stated in Sears, Roebuck & Co. v. State
Tax Assessor, 2012 ME 110, ¶ 1, 52 A.3d 941 (overturning Maine precedent that
we determined was “harsh and unjust” and “counterproductive to the
achievement of any principled conception of fair and even-handed justice”).
Further, there is no significant difficulty in administering—i.e., applying—the
41
rule (although, as is evident from the cases I review above, mortgagees
sometimes have difficulty at trial meeting the standards prescribed in
Rule 803(6)).
[¶58] The divergence between Maine law and the law of other
jurisdictions, exemplified by Jones, is not a new circumstance that would justify
departing from our precedents. Jones relies on several federal cases going as
far back as 1992. 925 F.3d at 537 (citing United States v. Doe, 960 F.2d 221, 223
(1st Cir. 1992)). And here the Court itself cites to federal and state appellate
court opinions that were issued decades ago. See Court’s Opinion ¶ 13. We
developed our modern-day standards for the admissibility of integrated
business records in our decisions beginning no later than Carter in 2011, well
after some other courts had put their less stringent model in place. This means
that the approach described in Jones and elsewhere was available for us to
consider and possibly adopt throughout the entire time that we have been
articulating our different standard for the admission of integrated business
records. Nonetheless, we took a different route.
[¶59] Finally, the Court states that there is benefit to interpreting Maine’s
rule uniformly with the construction found in other jurisdictions, in part to
discourage forum-shopping. See Court’s Opinion ¶ 25. When the Maine Rules
42
of Evidence were restyled effective in 2015, however, the Advisory Committee
on the Maine Rules of Evidence presented the proposed amendments to the
Supreme Judicial Court with the explicit explanation that “[r]estyled Rule 803
preserves the substantive differences between the Maine and the Federal
Rules.” M.R. Evid. 803 Maine Restyling Note [November 2014]. This makes
clear that the restyled rules were not proposed to us in order to create that
uniformity—and in fact they were intended to preserve the independence of
our own jurisprudence. Since then, we have done nothing to call that
framework into question. Based on this history, homogeneity between Maine
law and the law of other jurisdictions, while not without some ancillary value,
is nonetheless not an objective to be pursued for its own sake.19
[¶60] The question here is not whether the approach to integrated
business records embodied in Jones is reasonable. Rather, the issue now before
the Court is whether Maine’s current case law governing Rule 803(6) is wrong.
It is not. As I have discussed, our case law going back at least as far as 2011
could not be clearer in requiring a greater foundational showing than Jones and
19Another example of the lack of symmetry between Maine’s rules of evidence and the federal
rules is that the latter include a residual hearsay exception. See Fed. R. Evid. 807. Maine’s rules do
not. See M.R. Evid. 803 Maine Restyling Note [November 2014]; M.R. Evid. 803 Advisers’ Note to
former M.R. Evid. 803 (February 2, 1976).
43
the courts of other jurisdictions insist on, but that divergence does not prove
Maine’s criteria to be incorrect; the existence of one approach does not prove
the other wrong. Rather, the difference in approaches simply represents
different levels of sensitivity to the measure of reliability that must characterize
an integrated business record to allow its admission in evidence. Additionally,
Maine’s current approach has the benefit of faithfulness to the language of
Rule 803(6) itself. What the Court does today is simply to adopt one approach,
which is described in Jones and has existed all along, as the replacement for
another, which is described in Carter and is different but in no way incorrect.
In my view, to jettison a well-established and perfectly appropriate and
defensible legal standard established in Maine’s authoritative case law does
damage to the safeguard and stability of legal precedent achieved through
adherence to the basic principle of stare decisis.
[¶61] Given the fundamental importance of respecting and following
precedent, and the absence of any rationale that constitutes a “compelling”
justification necessary for departing from settled and well-established law,
Bromiley, 2009 ME 110, ¶ 6, 983 A.2d 1068, we should not overrule the case
44
law establishing our current jurisprudence on the admissibility of integrated
business records.20
B. The Court’s Rulemaking Authority
[¶62] For the reasons I have explained, there does not exist a sound
jurisprudential basis for the Court’s decision to change its construction of
Rule 803(6) as applicable to integrated business records. As a result, today’s
decision must be viewed as a de facto change to the meaning and content of the
rule itself—something the Court may do pursuant only to its statutory
authority to promulgate the rules that govern judicial proceedings, not in
exercise of its appellate authority. See 4 M.R.S. §§ 1, 8, 9-A, 51 (2020).
[¶63] By concluding that the proponent need present evidence only that
the receiving entity received, verified, and relied on a record generated by the
originating entity, see Court’s Opinion ¶ 30, the Court effectively eliminates the
specific requirements imposed by Rule 803(6)(A)-(C) as they apply to
To the extent that the Court concludes—without the benefit of any advocacy on the point, see
20
supra n.18, and while simultaneously stating that Carter is entitled to respect as precedent—that
Carter and the cases that followed were themselves decided in contravention of principles of stare
decisis, Court’s Opinion ¶ 23 & n.7, the Court collaterally attacks those decisions. This leaves one to
wonder about the consequences of the application of Rule 803(6) to the judgments addressed in
those cases, and the many additional judgments that have been issued in the trial courts based on
our current law governing the admissibility of integrated business records, not only in foreclosure
cases but in all other types of cases where such records were material. Additionally, the fact remains
that our current jurisprudence is the law, so the question presented here is whether we should now
reject that authority.
45
integrated business records, namely, that the proponent must present
foundational evidence that the record “was made at or near the time by—or
from information transmitted by—someone with knowledge,” that it “was kept
in the course of a regularly conducted activity of a business,” and that “[m]aking
the record was a regular practice of that activity.” As I have discussed above,
supra ¶¶ 44-45, the rule, as the Court now interprets it, therefore will now allow
a materially lesser foundational showing than is required by the plain terms of
the rule for a proffered integrated business document to become admissible in
evidence.
[¶64] The Court describes this as an integrated records “method,” which
it bases on a generalized notion of reliability. Court’s Opinion ¶¶ 8-10. No such
“method” exists within Rule 803(6), however. As written, the specific
requirements of the rule, including those set out in subparts A through C, apply
irrespective of whether the record is that of a single entity or is an integrated
record. By construing the rule as it does, the Court effectively exempts
integrated business records from the particularized foundational predicate set
out in subparts A through C and thereby rewrites the rule by eliminating those
requirements for such records to be admitted in evidence.21 See Radley, 2002
21 Although the Court denies that it is rewriting Rule 803(6) because it is simply returning to our
interpretation of the Rule from the Soley era, Court’s Opinion ¶ 23 & n.7, the fact remains that the
46
ME 150, ¶ 17, 804 A.2d 1127 (stating that the erroneous admission of an
integrated business record, where it is not supported by the foundational
requirements of Rule 803(6), cannot be transformed into a correct ruling
because, unlike the federal rules, see Fed. R. Evid. 807, the Maine Rules of
Evidence do not include a residual or “catch-all” exception to the hearsay rule,
which might allow the record to be admissible).
[¶65] When promulgating or amending rules of court, the Court invokes
and exercises authority in its capacity as the Supreme Judicial Court. See
4 M.R.S. §§ 1, 8, 9-A, 51. That authority is separate and mutually exclusive from
the authority we exercise when sitting as the Law Court, an appellate body.
Compare 4 M.R.S. § 8 (rulemaking authority), with 4 M.R.S. §§ 51, 57 (2020)
(appellate authority); see also State v. Doucette, 544 A.2d 1290, 1294
(Me. 1988). Here, by effectively rewriting the way Rule 803(6) applies to
integrated business records, the Court is improperly exercising its regulatory
rulemaking powers in an adjudicatory context. See Conservatorship of Emma,
2017 ME 1, ¶¶ 1, 10, 153 A.3d 102 (declining to answer a question reported by
the Kennebec County Probate Court in part because questions “of policy, with
construction of the Rule now embraced by the Court changes the substance and structure of the Rule
as established by our current controlling jurisprudence. This amounts to an amendment of the Rule
itself.
47
long-ranging and far-reaching implications” are properly answered not
through adjudication but through the rulemaking process in which the related
issues “can be addressed together in an open forum”).
[¶66] I have no quarrel with the suggestion that it may be beneficial to
reexamine the way Rule 803(6) should be applied to integrated business
records, at least in foreclosure cases. The Bank and its allied amici assert that
Rule 803(6), as we have construed it since 2011, imposes an unfair and
unnecessary obstacle to admitting those records, which can contain necessary
aspects of proof in foreclosure cases where mortgages are often transferred
from one entity to the next and the servicing of a single mortgage can also
change hands. See Plaisted, 2018 ME 121, ¶ 1, 192 A.3d 601 (noting the
challenges faced by mortgagees in proving a foreclosure case because of the
industry’s “practice of securitization, spawning a byzantine mass of
assignments, transfers, and documentation” (quotation marks omitted)). On
the other side, several amici in support of Shone and Buck’s position point to a
checkered track record in the efforts of mortgagees to present sufficient and
reliable information about the history of mortgages on which they have sought
to foreclose, and those amici point to the incentive that mortgagees, servicers,
and others involved in administering mortgages may have to simply adopt,
48
verify, and rely on one another’s records. See id. ¶ 2 (“The law, the rules of
evidence, and court processes have not become more complicated in these
matters. Applying established law, however, has become more problematic as
courts address the problems the financial services industry has created for
itself.” (quotation marks omitted)); see also HSBC Mortg. Servs., Inc. v. Murphy,
2011 ME 59, ¶ 15 & n.8, 19 A.3d 815.
[¶67] Although this is a discussion that may be well worth having, it must
occur in a forum other than this appeal, where we are called upon to interpret
and apply Rule 803(6) as it exists. The proper vehicle to address the efficacy of
the current Rule to serve its purposes effectively in some or all contexts is
through the Advisory Committee on the Maine Rules of Evidence or other
interested persons or entities, and ultimately within the Supreme Judicial
Court, exercising its rulemaking authority—a deliberative process that likely
would require consideration of broad empirical industry-wide practices based
on information that goes well beyond the present record. For the Court to
de facto rewrite the rule in the context of this appeal is an improper exercise of
its rulemaking authority in an adjudicatory proceeding.
49
C. Conclusion
[¶68] The trial court correctly applied Rule 803(6) and committed no
error when it excluded the notice of default and right to cure, directly resulting
in the entry of judgment for mortgagors Danielle Shone and Michael Buck.
Further, there is no proper persuasive basis for casting aside our clear and
well-established jurisprudence governing the admissibility of integrated
business records. The judgment should be affirmed.
Santo Longo, Esq., Bendett & McHugh, P.C., Portland, and William A. Fogel, Esq.
(orally), San Diego, California, for appellant the Bank of New York Mellon
Mark A. Kearns, Esq. (orally), and Mark L. Randall, Esq., Portland, for appellees
Michael Buck and Danielle Shone
Jeremy Kamras, Esq., Arnold & Porter Kay Scholer LLP, San Francisco,
California, for amicus curiae Federal Housing Finance Agency
Andrea Bopp Stark, Esq., National Consumer Law Center, Boston,
Massachusetts, for amicus curiae National Consumer Law Center
Daniel L. Cummings, Esq., and Michael T. Devine, Esq., Norman, Hanson &
Detroy, LLC, Portland, for amicus curie Maine Credit Union League
Diane Cipollone, Esq., Yarmouth, for amici curiae National Association of
Consumer Advocates, Marc Dann, the Dann Law Firm, James Sturdevant, the
Sturdevant Law Firm, Phillip Robinson, and the Consumer Law Center LLC
Frank D’Alessandro, Esq., Augusta, for amicus curiae Maine Equal Justice
50
Jonathan E. Selkowitz, Esq., Pine Tree Legal Assistance, Inc., Portland, for
amicus curiae Pine Tree Legal Assistance, Inc.
Catherine R. Connors, Esq., John J. Aromando, Esq., and Sara A. Murphy, Esq.,
Pierce Atwood LLP, Portland, for amicus curiae The Maine Bankers Association
Brett L. Messinger, Esq., and Elizabeth M. Lacombe, Esq., Portland, for amicus
curiae PHH Mortgage Corporation
Kelly W. McDonald, Esq., Murray, Plumb & Murray, Portland, for amicus curiae
Full Disclosure, LLC
Thomas A. Cox, Esq., Portland, for amicus curiae Maine Attorneys Saving Homes
Gerald F. Petruccelli, amicus curiae pro se
Cumberland County Superior Court docket number RE-2015-116
FOR CLERK REFERENCE ONLY