MAINE	SUPREME	JUDICIAL	COURT	                                        Reporter	of	Decisions	
Decision:	     2016	ME	118	
Docket:	       Yor-15-448	
Submitted	
			On	Briefs:	 June	22,	2016	
Decided:	      July	26,	2016	
	
Panel:	        ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                OCEAN	COMMUNITIES	FEDERAL	CREDIT	UNION	
                                   	
                                  v.	
                                   	
                         GUY	R.	ROBERGE	et	al.	
	
	
GORMAN,	J.	

      [¶1]		Guy	R.	Roberge	appeals	from	a	summary	judgment	entered	in	the	

District	Court	(Biddeford,	Mulhern,	J.)	in	favor	of	Ocean	Communities	Federal	

Credit	 Union	 (the	 Credit	 Union)	 on	 the	 Credit	 Union’s	 complaint	 for	

residential	foreclosure.		Roberge	contends	that	the	court	erred	by	concluding	

that	the	Credit	Union	established	its	entitlement	to	a	summary	judgment	as	to	

each	element	of	foreclosure	in	accordance	with	M.R.	Civ.	P.	56.		We	agree,	and	

vacate	the	judgment	and	remand	for	a	trial.	

                                   I.		BACKGROUND	

      [¶2]	 	 On	 February	 17,	 2015,	 the	 Credit	 Union	 filed	 a	 foreclosure	

complaint	 in	 the	 District	 Court	 against	 Roberge	 and	 Lisa	 H.	 Pombriant	

concerning	 residential	 property	 in	 Biddeford.	 	 The	 Credit	 Union	 alleged	 that	
2	

Roberge	 executed	 a	 note	 for	 a	 home	 equity	 line	 of	 credit	 on	 September	 17,	

2008,	and	that	Roberge	and	Pombriant	mortgaged	the	Biddeford	property	to	

secure	 Roberge’s	 loan.	 	 The	 Credit	 Union	 further	 alleged	 that	 the	 City	 of	

Biddeford	had	placed	tax	liens	on	the	property,	and	that	the	Credit	Union	had	

paid	the	amounts	owed	for	the	taxes,	resulting	in	the	City’s	release	of	the	liens.		

The	 Credit	 Union	 asserted	 that	 Roberge	 was	 in	 default	 on	 the	 note	 and	 that	

Roberge	 and	 Pombriant	 had	 breached	 the	 mortgage	 by	 failing	 to	 reimburse	

the	Credit	Union	for	the	tax	lien	advances.		Roberge	disputed	the	complaint.1	

         [¶3]	 	 The	 Credit	 Union	 moved	 for	 a	 summary	 judgment	 on	 June	 15,	

2015.	 	 For	 each	 of	 its	 accompanying	 statements	 of	 material	 facts,	 the	 Credit	

Union	 cited	 to	 either	 (1)	 the	 affidavit	 of	 Claude	 Morgan,	 the	 Credit	 Union’s	

collections	 manager,	 in	 which	 Morgan	 referred	 to	 three	 attached	 exhibits—

the	 note,	 the	 mortgage,	 and	 the	 notice	 of	 default,	 or	 (2)	 the	 affidavit	 of	

William	J.	Gallitto	III,	the	Credit	Union’s	attorney.		By	judgment	dated	August	

18,	 2015,	 the	 court	 granted	 a	 summary	 judgment	 for	 foreclosure	 and	 sale	 in	

favor	of	the	Credit	Union	in	the	amount	of	$144,998.97.		Roberge	appeals.	




     1		Pombriant	apparently	participated	in	the	mediation	attempts	in	this	matter,	but	otherwise	did	

not	defend	against	the	Credit	Union’s	complaint.		Pombriant	is	not	a	party	to	this	appeal.	
                                                                                        3	

                                   II.		DISCUSSION	

      [¶4]	 	 Roberge	 challenges	 the	 court’s	 entry	 of	 a	 summary	 judgment	 on	

the	 ground	 that	 the	 Credit	 Union	 did	 not	 establish	 each	 of	 the	 elements	

necessary	to	foreclose	according	to	the	requirements	of	Rule	56.		We	consider	

the	 evidence	 in	 the	 summary	 judgment	 record	 in	 the	 light	 most	 favorable	 to	

Roberge,	as	the	nonmoving	party,	to	determine,	de	novo,	whether	the	parties’	

summary	 judgment	 filings	 reveal	 any	 genuine	 dispute	 of	 material	 fact	 and	

whether	the	Credit	Union	is	entitled	to	a	judgment	as	a	matter	of	law	based	on	

the	 undisputed	 facts.	 	 See	M.R.	 Civ.	 P.	 56(c);	 HSBC	 Bank	 USA,	 N.A.	 v.	 Gabay,	

2011	ME	101,	¶	8,	28	A.3d	1158;	Beneficial	Me.	Inc.	v.	Carter,	2011	ME	77,	¶	6,	

25	A.3d	96.	

      [¶5]	 	 Although	 summary	 judgment	 practice	 has	 long	 used	 consistent	

standards,	 we	 have,	 in	 the	 past	 decade,	 detailed	 the	 application	 of	 those	

requirements	 to	 residential	 foreclosure	 matters	 in	 particular.	 	 In	 doing	 so,	

“[w]e	 have	 repeatedly	 emphasized	 the	 importance	 of	 applying	 summary	

judgment	 rules	 strictly	 in	 the	 context	 of	 residential	 mortgage	 foreclosures.”		

HSBC	 Mortg.	 Servs.,	 Inc.	 v.	 Murphy,	 2011	 ME	 59,	 ¶	 9,	 19	 A.3d	 815	 (quotation	

marks	omitted);	see	Gabay,	2011	ME	101,	¶	9,	28	A.3d	1158.			
4	

      [¶6]	 	 A	 party	 moving	 for	 a	 summary	 judgment	 in	 a	 foreclosure	 case	

must	 comply	 with	 several	 layers	 of	 requirements.	 	 First,	 the	 motion	 must	 be	

accompanied	by	a	“separate,	short,	and	concise	statement	of	material	facts,	set	

forth	 in	 numbered	 paragraphs”	 with	 only	 one	 fact	 per	 paragraph.	 	 M.R.	

Civ.	P.	56(h)(1).	 	 Each	 fact	 must	 be	 supported	 by	 a	 citation	 to	 “the	 specific	

portions	of	the	record	from	which	each	fact	is	drawn.”		Gabay,	2011	ME	101,	

¶	9,	28	A.3d	1158	(quotation	marks	omitted);	see	M.R.	Civ.	P.	56(h)(1),	(4).			

      [¶7]		In	the	context	of	mortgage	foreclosures,	this	supporting	evidence	

primarily	consists	of	affidavits	signed	by	bank	employees	or	representatives.		

Murphy,	 2011	ME	 59,	 ¶	 9,	 19	 A.3d	 815.	 	 “Supporting	 and	 opposing	 affidavits	

shall	 be	 made	 on	 personal	 knowledge,	 shall	 set	 forth	 such	 facts	 as	 would	 be	

admissible	 in	 evidence,	 and	 shall	 show	 affirmatively	 that	 the	 affiant	 is	

competent	 to	 testify	 to	 the	 matters	 stated	 therein.”	 	 M.R.	 Civ.	 P.	 56(e);	

see	Carter,	2011	ME	77,	¶	6,	25	A.3d	96.		Thus,	the	record	references	in	both	

the	 statements	 of	 material	 facts	 and	 the	 affidavits	 themselves	 “must	 refer	 to	

evidence	of	a	quality	that	could	be	admissible	at	trial.”		Gabay,	2011	ME	101,	

¶	2	n.2,	28	A.3d	1158	(quotation	marks	omitted);	see	Carter,	2011	ME	77,	¶	6,	

25	A.3d	96;	Murphy,	2011	ME	59,	¶	9	&	n.6,	19	A.3d	815.	
                                                                                                       5	

       [¶8]	 	 When	 an	 affidavit	 refers	 to	 records	 as	 the	 basis	 for	 the	 affiant’s	

knowledge,	 those	 records	 must	 be	 attached:	 “Sworn	 or	 certified	 copies	 of	 all	

papers	or	parts	thereof	referred	to	in	an	affidavit	shall	be	attached	thereto	or	

served	 therewith.”2	 	 M.R.	 Civ.	 P.	 56(e)	 (emphasis	 added);	 see	 Cach,	 LLC	 v.	

Kulas,	 2011	ME	 70,	 ¶	 10,	 21	 A.3d	 1015;	 see	 also	 Arrow	 Fin.	 Servs.,	 LLC	 v.	

Guiliani,	 2011	 ME	 135,	 ¶¶	12-14,	 32	A.3d	 1055.	 	 For	 example,	 in	 Kulas,	 the	

plaintiff	 submitted	 with	 its	 motion	 for	 summary	 judgment	 a	 bank	 officer’s	

affidavit	stating	that	the	plaintiff	obtained	the	defendant’s	account	pursuant	to	

an	assignment	from	the	bank,	and	referring	to	“computerized	and	hard	copy	

books	and	records”	of	the	bank	to	support	the	fact	of	the	assignment;	none	of	

those	 records	 was	 attached	 to	 the	 affidavit.	 	 2011	 ME	 70,	 ¶¶	 3,	 10,	 21	 A.3d	

1015	 (quotation	 marks	 omitted).	 	 We	 concluded	 that	 “[w]ithout	 a	 sworn	 or	

certified	 copy	 of	 the	 assignment,	 the	 summary	 judgment	 record	 does	 not	

support	[the	plaintiff’s]	assertion	that	it	was	the	assignee	of	[the	defendant’s]	

account,”	and	we	vacated	the	summary	judgment	in	favor	of	the	plaintiff.		Id.	

¶¶	10,	12.	




   2	 	 Likewise,	 a	 court	 may	 consider	 documents	 at	 the	 summary	 judgment	 stage	 only	 when	 the	

documents	 are	 attached	 to	 an	 affidavit	 that	 authenticates	 the	 documents	 according	 to	 M.R.	
Civ.	P.	56(e).		Cach,	LLC	v.	Kulas,	2011	ME	70,	¶	11,	21	A.3d	1015.	
6	

      [¶9]	 	 Indeed,	 in	 foreclosure	 cases,	 “the	 information	 supplied	 by	 the	

affidavits	 is	 largely	 derivative	 because	 it	 is	 drawn	 from	 a	 business’s	 records,	

and	not	from	the	affiant’s	personal	observation	of	events.”		Murphy,	2011	ME	

59,	¶	9,	19	A.3d	815.		Business	records	are	hearsay	and	therefore	inadmissible	

pursuant	to	M.R.	Evid.	802	unless	they	meet	the	requirements	of	the	business	

records	 exception	 in	 M.R.	Evid.	 803(6).	 	 Murphy,	 2011	 ME	 59,	 ¶	 10,	 19	 A.3d	

815.		We	review	the	trial	court’s	foundational	findings	as	to	the	admissibility	

of	 evidence	 for	 clear	 error	 and,	 if	 the	 admissibility	 of	 the	 evidence	 is	

established	 by	 undisputed	 foundational	 facts,	 we	 review	 the	 court’s	

consideration	of	that	evidence	for	an	abuse	of	discretion.		Carter,	2011	ME	77,	

¶	9,	25	A.3d	96.	

      [¶10]	 	 To	 qualify	 documents	 for	 the	 business	 records	 exception,	 the	

moving	 party	 first	 must	 establish	 that	 the	 affiant	 is	 the	 custodian	 of	 the	

records	 “or	 another	 qualified	 witness.”	 	 M.R.	Evid.	 803(6);	 see	 Homeward	

Residential,	 Inc.	 v.	 Gregor,	 2015	 ME	 108,	 ¶	 14	 n.11,	 122	 A.3d	 947;	 Murphy,	

2011	 ME	 59,	 ¶	 10,	 19	 A.3d	 815.	 	 “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.”		Murphy,	2011	ME	

59,	¶	10,	19	A.3d	815	(alteration	omitted)	(quotation	marks	omitted).			
                                                                                      7	

      [¶11]		Once	the	qualifications	of	the	witness	are	established,	the	moving	

party	must	lay	the	necessary	foundation	for	the	admission	of	the	documents	

as	business	records,	namely,	that	

            (1)	 the	 record	 was	 made	 at	 or	 near	 the	 time	 of	 the	 events	
     reflected	 in	 the	 record	 by,	 or	 from	 information	 transmitted	 by,	 a	
     person	with	personal	knowledge	of	the	events	recorded	therein;	
     	
            (2)	 the	 record	 was	 kept	 in	 the	 course	 of	 a	 regularly	
     conducted	business;	
     	
            (3)	 it	 was	 the	 regular	 practice	 of	 the	 business	 to	 make	
     records	of	the	type	involved;	and	
     	
            (4)	 no	 lack	 of	 trustworthiness	 is	 indicated	 from	 the	 source	
     of	information	from	which	the	record	was	made	or	the	method	or	
     circumstances	under	which	the	record	was	prepared.	
     	
Bank	of	Am.,	N.A.	v.	Greenleaf,	2014	ME	89,	¶	25,	96	A.3d	700	(quotation	marks	

omitted).	 	 In	 sum,	 when	 an	 affidavit	 refers	 to	 a	 purported	 business	 record,	

that	 business	 record	 must	 be	 attached	 to	 the	 affidavit,	 the	 affidavit	 must	

establish	the	affiant’s	qualification	to	testify	to	the	contents	of	the	record,	and	

the	 affiant	 must	 lay	 the	 necessary	 foundation	 for	 the	 admissibility	 of	 the	

record	 pursuant	 to	 the	 business	 records	 exception	 to	 hearsay.	 	 If	 these	

foundational	elements	are	not	established	by	competent	undisputed	evidence,	

the	 court	 cannot	 consider	 the	 record	 when	 it	 reviews	 the	 request	 for	 a	

summary	judgment.		Carter,	2011	ME	77,	¶¶	10-11,	25	A.3d	96.	
8	

       [¶12]	 	If	 the	 nonmoving	 party	 does	 not	 adequately	 oppose	 the	 moving	

party’s	 statements	 of	 material	 facts	 in	 accordance	 with	 Rule	 56(h)(2),	 those	

facts	are	deemed	admitted.		M.R.	Civ.	P.	56(h)(4);	Guiliani,	2011	ME	135,	¶	10,	

32	A.3d	1055.		This	is	true,	however,	only	if	those	statements	of	material	facts	

are	 properly	 supported	 by	 record	 references.	 	 Guiliani,	 2011	 ME	 135,	 ¶	 10,	

32	A.3d	 1055;	 Gabay,	 2011	 ME	 101,	 ¶¶	 2	 n.2,	 8,	 28	A.3d	 1158.	 	 “Summary	

judgment	 practice	 in	 foreclosure	 cases	 requires	 that	 the	 trial	 court	 examine	

the	 merits	 of	 the	 plaintiff’s	 materials	 filed	 in	 support	 of	 summary	 judgment	

regardless	 of	 any	 inadequacies	 in	 a	 defendant’s	 opposition	 to	 summary	

judgment.”	 	 Gabay,	 2011	 ME	 101,	 ¶	 7	 n.7,	 28	A.3d	 1158.	 	 Even	 if	 there	 is	 no	

opposition	to	the	motion,	the	summary	judgment	record	must	be	evaluated	to	

determine	the	moving	party’s	compliance	with	these	requirements.		Id.	¶	8.		

       [¶13]	 	 Further,	 “the	 court	 is	 neither	 required	 nor	 permitted	 to	

independently	search	a	record	to	find	support	for	facts	offered	by	a	party.”		Id.	

(emphasis	 added)	 (quotation	 marks	 omitted).	 	 The	 existence	 of	 supporting	

evidence	in	the	trial	court	record	does	not	satisfy	the	moving	party’s	burden;	

that	evidence	must	be	(1)	included	in	the	summary	judgment	record,	(2)	the	

subject	 of	 one	 or	 more	 statements	 of	 material	 facts,	 and	 (3)	 cited	 to	 in	 the	
                                                                                                    9	

statements	 of	 material	 facts.	 	 Gabay,	 2011	 ME	 101,	 ¶¶	 8-9,	 16-17,	 22-25,	

28	A.3d	1158;	Kulas,	2011	ME	70,	¶	10	n.3,	21	A.3d	1015.	

        [¶14]	 	 With	 these	 standards	 in	 mind,	 we	 turn	 to	 the	 Credit	 Union’s	

statements	of	material	facts.		To	obtain	a	summary	judgment	for	foreclosure,	

the	 moving	 party	 must	 establish	 the	 following	 eight	 elements	 based	 on	

undisputed	facts	in	the	summary	judgment	record:3	

        • the	 existence	 of	 the	 mortgage,	 including	 the	 book	 and	 page	
          number	 of	 the	 mortgage,	 and	 an	 adequate	 description	 of	 the	
          mortgaged	premises,	including	the	street	address,	if	any;	
        	
        • properly	 presented	 proof	 of	 ownership	 of	 the	 mortgage	 note	
          and	evidence	of	the	mortgage	note	and	the	mortgage,	including	
          all	 assignments	 and	 endorsements	 of	 the	 note	 and	 the	
          mortgage;		
	
        • a	breach	of	condition	in	the	mortgage;	
        	
        • the	amount	due	on	the	mortgage	note,	including	any	reasonable	
          attorney	fees	and	court	costs;	
        	
        • the	order	of	priority	and	any	amounts	that	may	be	due	to	other	
          parties	in	interest,	including	any	public	utility	easements;	
        	
        • evidence	 of	 properly	 served	 notice	 of	 default	 and	 mortgagor’s	
          right	to	cure	in	compliance	with	statutory	requirements;	
        	



    3		Neither	the	note	nor	the	mortgage	has	been	assigned	or	otherwise	transferred,	and	therefore	

the	standing	of	the	Credit	Union	to	seek	a	residential	foreclosure	is	not	at	issue.		See	Bank	of	Am.,	
N.A.	v.	Greenleaf,	2014	ME	89,	¶¶	6-17,	96	A.3d	700.	
10	

     • after	January	1,	2010,	proof	of	completed	mediation	(or	waiver	
        or	 default	 of	 mediation),	 when	 required,	 pursuant	 to	 the	
        statewide	foreclosure	mediation	program	rules;	and	
     	
     • if	 the	 homeowner	 has	 not	 appeared	 in	 the	 proceeding,	 a	
        statement,	 with	 a	 supporting	 affidavit,	 of	 whether	 or	 not	 the	
        defendant	 is	 in	 military	 service	 in	 accordance	 with	 the	
        Servicemembers	Civil	Relief	Act.	
     	
Greenleaf,	 2014	 ME	 89,	 ¶	 18,	 96	 A.3d	 700	 (alterations	 omitted)	 (quotation	

marks	omitted).		If	the	summary	judgment	record	does	not	properly	establish	

any	 one	 of	 these	 elements,	 the	 entry	 of	 a	 summary	 judgment	 is	 precluded.		

See	Gabay,	2011	ME	101,	¶¶	10,	18,	28	A.3d	1158.	

       [¶15]	 	 The	 Credit	 Union	 has	 submitted	 statements	 of	 material	 facts	

relevant	 to	 the	 eight	 foreclosure	 elements.	 	 Each	 of	 those	 material	 facts	

contains	 a	 citation	 to	 a	 specific	 portion	 of	 the	 summary	 judgment	 record,	

namely,	 either	 the	 Morgan	 affidavit	 or	 the	 Gallitto	 affidavit.	 	 We	 agree	 with	

Roberge,	however,	that	the	Credit	Union’s	statements	of	material	facts	do	not	

comply	with	Rule	56	in	several	respects.4			



  4
      In places, the Credit Union has alleged more than one fact per paragraph, in violation of M.R.
Civ. P. 56(h)(1). For example, the Credit Union asserts:

       Defendant Roberge has defaulted on the Agreement, and Defendants Roberge and
       Pombriant have defaulted on the Mortgage by virtue of their failure to make monthly
       payments when due. As a result of the Defendants’ default, Defendants were sent a
       Notice of Right to Cure (hereinafter “Demand Notice”), dated September 26, 2014,
       advising them of the default and of Ocean[’]s intention to exercise its rights under the
       Agreement and Mortgage. See Morgan Affidavit at ¶¶ 13-14 and its attached Exhibit C.
                                                                                          11	

       [¶16]	 	 First,	 the	 Gallitto	 affidavit	 is	 the	 sole	 portion	 of	 the	 summary	

judgment	 record	 cited	 to	 establish	 the	 order	 of	 priority	 of	 claims	 on	 the	

property.	 	 In	 his	 affidavit,	 Gallitto	 attests,	 “I	 have	 under	 my	 custody	 and	

control	the	records	relating	to	the	services	rendered	by	Bergen	&	Parkinson,	

LLC	in	connection	with	this	foreclosure	action,”	and	states,	“My	knowledge	as	

to	the	facts	set	forth	in	this	Affidavit	is	derived	from	my	personal	knowledge	

of	 these	 records.”	 	 The	 law	 firm	 records	 referenced,	 which	 form	 the	 basis	 of	

Gallitto’s	 affidavit,	 are	 not	 attached	 to	 his	 affidavit.	 	 The	 Gallitto	 affidavit	

therefore	does	not	comply	with	Rule	56(e)	and	its	assertions	concerning	the	

order	 of	 priority	 must	 be	 disregarded.	 	 See	Kulas,	 2011	ME	 70,	 ¶	 10,	 21	A.3d	

1015.		Without	the	Gallitto	affidavit,	the	Credit	Union	has	failed	to	establish	at	

least	 one	 element	 in	 its	 summary	 judgment	 filings.	 	 The	 inadequacy	 of	 the	

Gallitto	 affidavit	 is,	 by	 itself,	 sufficient	 ground	 to	 vacate	 the	 summary	

judgment	 in	 favor	 of	 the	 Credit	 Union.	 	 The	 Morgan	 affidavit	 suffers	 from	

numerous	problems	as	well,	however.	

       [¶17]	 	 Like	 the	 Gallitto	 affidavit,	 the	 Morgan	 affidavit	 states	 that	 it	 is	

“derived	 from	 [Morgan’s]	 personal	 knowledge,	 together	 with	 [his]	 first-hand	

knowledge”	 of	 “the	 records	 relating	 to	 the	 mortgage	 transactions	 referenced	

below”	 that	 the	 Credit	 Union	 “has	 under	 its	 custody	 and	 control.”	 	 Thus,	
12	

Morgan’s	 affidavit	 confirms	 that	 its	 content	 is	 based,	 at	 least	 in	 part,	 on	 the	

Credit	 Union’s	 business	 records.	 	 The	 only	 records	 attached	 to	 the	 affidavit,	

however,	are	copies	of	the	note,	the	mortgage,	and	the	notice	of	default.		Even	

assuming	 Morgan	 is	 a	 qualified	 witness,	 and	 that	 the	 requisite	 business	

records	foundation	for	these	documents	has	been	laid,5	these	documents	are	

insufficient	 to	 establish	 multiple	 elements	 of	 the	 foreclosure	 claim,	 most	

notably,	the	elements	of	breach	and	the	amount	due.			

        [¶18]	 	 As	 to	 breach,	 Morgan	 states	 that	 “[t]he	 records	 maintained	 by	

[the	 Credit	 Union]	 reflect	 that	 [Roberge]	 has	 defaulted	 and	 breached	 the	

Agreement,	 and	 [Roberge	 and	 Pombriant]	 have	 defaulted	 and	 breached	 the	

Mortgage	by	virtue	of	their	failure	to	make	monthly	payments	when	due.”		As	

support	for	that	assertion,	the	Morgan	affidavit	cites	only	the	original	note	and	

mortgage,	 neither	 of	 which	 contains	 any	 information	 regarding	 what	



   5		Roberge	argues	that	Morgan	has	not	established	the	requisite	foundation	for	the	admission	of	

business	 records	 because	 his	 affidavit	 does	 not	 show	 that	 he	 has	 firsthand	 knowledge	 of	 how	the	
Credit	 Union	 creates	 or	 maintains	 its	 records.	 	 In	 Greenleaf,	 for	 example,	 we	 observed	 that	 the	
bank’s	testifying	employee	did	not	establish	that	she	was	a	custodian	or	qualified	witness	to	lay	the	
foundation	 for	 the	 admission	 of	 the	 bank’s	 records;	 although	 she	 testified	 that	 she	 was	 a	 bank	
employee,	 “she	 did	 not	 testify	 about	 what	 involvement	 she	 ha[d]	 in	 the	 Bank’s	 recordkeeping	
operations	 or	 how	 she	 came	 to	 have	 firsthand	 knowledge	 of	 the	 Bank’s	 records,”	 and	 did	 not,	 for	
example,	testify	as	to	“how	long	or	in	what	capacities	she	ha[d]	worked	for	the	Bank,	what	type	of	
familiarity	 with	 the	 Bank’s	 records	 [was]	 required	 for	 her	 job	 .	 .	 .	 ,	 or	 how	 or	 how	 often	 she	
accesse[d]	those	records.”		2014	ME	89,	¶	26,	96	A.3d	700.		Thus,	it	is	not	enough	to	simply	assert	
employment	with	the	bank	or	general	familiarity	with	bank	records.		We	need	not	address	whether	
Morgan’s	 affidavit	 establishes	 that	 he	 is	 the	 custodian	 or	 other	 qualified	 witness	 of	 the	 Credit	
Union’s	records,	however,	given	the	other	insufficiencies	in	the	summary	judgment	record.	
                                                                                                              13	

payments	 were	 made	 or	 not	 made,	 the	 dates	 of	 any	 such	 payments,	 or	 any	

other	 information	 beyond	 the	 fact	 of	 the	 initial	 execution	 of	 the	 note	 and	

mortgage.6			

        [¶19]	 	 As	 to	 the	 amount	 due,	 Morgan	 attests	 that	 Roberge	 owes	

$144,998.97	 as	 of	 June	 2,	 2015,	 but	 the	 affidavit	 attaches	 no	 Credit	 Union	

records	 supporting	 that	 amount.7	 	 In	 addition,	 as	 to	 legal	 fees,	 both	 Morgan	

and	 Gallitto	 recite	 that	 Roberge	 owes	 $4,292.43	 in	 “Legal	 Services	 (paid	 to	

date),”	 but	 neither	 attaches	 any	 law	 firm	 or	 Credit	 Union	 documentation	 of	

that	amount.8	



   6		 To	 the	 extent	 the	 Credit	 Union	 relies	 on	 the	 notice	 of	 default	 as	 evidence	 of	 breach,	 that	
document	also	does	not	reflect	any	payment	history	information.		It	is	simply	an	earlier	recitation	of	
the	same	assertions	as	in	the	summary	judgment	record;	it	does	not	support	that	a	breach	occurred,	
only	that	the	Credit	Union	purports	to	have	notified	Roberge	that	a	breach	occurred.	
    7		The	statements	of	material	facts	and	the	Morgan	affidavit	also	refer	to	two	tax	liens	recorded	

by	the	City,	which	were	paid	by	the	Credit	Union	and	then	released	by	the	City	by	means	of	another	
recorded	document.		Presumably,	these	tax	lien	amounts	form	some	portion	of	 the	Credit	Union’s	
claim	of	the	amounts	owed,	but	its	statements	of	material	facts	do	not	assert	that	as	a	fact	and	none	
of	these	documents	is	included	in	the	summary	judgment	record.			
   8
       In addition, we are not persuaded by the Credit Union’s argument that the absence of attached
records is not fatal to its summary judgment because both Morgan and Gallitto executed their affidavits
based on their personal knowledge. In their affidavits, Morgan and Gallitto purported to have personal
knowledge of the Credit Union’s and the law firm’s business records. To the extent either claims to have
personal knowledge of the precise amount due on the note, the book and page number of the recorded tax
liens, or the precise amount of reasonable attorney fees, for example, without referencing any business
records, those claims indicate an inherent lack of trustworthiness in the affidavits, rendering that
testimony inadmissible in any event. See Richards Realty Co. v. Inhabitants of Town of Castle Hill,
406 A.2d 412, 413 (Me. 1979) (observing that an affidavit “states no circumstances that show
affirmatively” that the affiant could have “the kind of continuing personal knowledge of [tax lien
mortgage information] over a period of forty years that would render him competent to testify to their
existence” (quotation marks omitted)).
14	

        [¶20]		The	summary	judgment	record	is	also	deficient	as	to	the	element	

of	 notice	 of	 default.	 	 Among	 other	 requirements,	 14	 M.R.S.	 §	 6111	 (2015)	

allows	 the	 debtor	 “35	 days	 after	 the	 date	 that	 written	 notice	 [of	 default]	 is	

given	 by	 the	 mortgagee	 to	 the	 mortgagor	 and	 any	 cosigner	 .	 .	 .	 to	 cure	 the	

default	 by	 full	 payment	 of	 all	 amounts	 that	 are	 due	 without	 acceleration.”		

14	M.R.S.	 §	 6111(1).	 	 Notice	 may	 be	 given	 either	 by	 “[c]ertified	 mail,	 return	

receipt	 requested,”	 or	 by	 “[o]rdinary	 first	 class	 mail,	 postage	 prepaid.”		

14	M.R.S.	 §	 6111(3).	 	 When	 the	 former	 is	 used,	 notice	 is	 “given”	 on	 the	 date	

that	 the	 debtor	 signs	 the	 receipt	 or	 the	 post	 office	 makes	 its	 last	 attempt	 to	

deliver	it.		14	M.R.S.	§	6111(3)(A).		When	the	latter	is	used,	notice	is	“given”	on	

the	date	that	the	debtor	receives	the	notice.9		14	M.R.S.	§	6111(3)(B).			

        [¶21]	 	 Morgan’s	 affidavit	 states	 that	 a	 notice	 of	 default	 was	 sent	 to	

Roberge	on	September	26,	2014.		A	copy	of	the	notice	of	default	is	attached	to	

Morgan’s	affidavit;	the	notice	indicates	that	it	was	sent	via	both	certified	mail	

and	 ordinary	 mail.	 	 As	 Roberge	 points	 out,	 however,	 there	 is	 no	 evidence	

regarding	 the	 date	 on	 which	 the	 return	 receipt	 was	 signed	 for	 the	 certified	

mail	 delivery,	 nor	 any	 evidence	 of	 when	 Roberge	 received	 the	 notice	 by	

ordinary	 mail.	 	 Although	 a	 copy	 of	 the	 certified	 mail	 receipt	 stating	 that	

   9	 	 “A	 post	 office	 department	 certificate	 of	 mailing	 to	 the	 mortgagor	 or	 cosigner	 is	 conclusive	

proof	of	receipt	on	the	3rd	calendar	day	after	mailing.”		14	M.R.S.	§	6111(3)(B)	(2015).	
                                                                                   15	

Roberge	 received	 the	 notice	 on	 September	26,	 2014,	 was	 attached	 to	 the	

complaint,	 the	 Credit	 Union	 did	 not	 include	 that	 evidence	 in	 its	 summary	

judgment	filings,	and	we	do	not	rely	on	evidence	elsewhere	in	the	trial	record	

that	is	not	incorporated	into	the	summary	judgment	record.		See	Gabay,	2011	

ME	101,	¶	8,	28	A.3d	1158.		Thus,	the	Credit	Union	has	failed	to	establish	that	

it	 provided	 proper	 notice	 of	 the	 default	 and	 right	 to	 cure	 in	 the	 summary	

judgment	record	as	is	required	by	section	6111.		

	     [¶22]	 	 In	 sum,	 the	 Credit	 Union’s	 summary	 judgment	 filings	 failed	 to	

establish	 at	 least	 four	 of	 the	 necessary	 eight	 elements	 for	 a	 residential	

foreclosure.	 	 We	 therefore	 vacate	 the	 entry	 of	 the	 summary	 judgment	 in	 the	

Credit	 Union’s	 favor	 and	 remand	 the	 matter	 to	 the	 District	 Court	 for	 the	

matter	to	proceed	to	trial.		

      The	entry	is:	
16	

                            Judgment	 vacated.	 	 Remanded	 for	 further	
                            proceedings	consistent	with	this	opinion.		
	
	    	     	       	      	         	
	
On	the	briefs:	
	
     Elizabeth	 LaPierre,	 Esq.,	 and	 Bridget	 McMahon,	 Esq.,	 Legal	
     Services	 for	 the	 Elderly,	 Scarborough,	 for	 appellant	 Guy	 R.	
     Roberge	
     	
     William	 J.	 Gallitto,	 III,	 Esq.,	 Bergen	 &	 Parkinson,	 LLC,	 Saco,	
     for	appellee	Ocean	Communities	Federal	Credit	Union	
     	
     	
     	
Biddeford	District	Court	docket	number	RE-2015-4	
FOR	CLERK	REFERENCE	ONLY	
