See	MAINE	SUPREME	JUDICIAL	COURT	                                            Reporter	of	Decisions	
Decision:	 2017	ME	237	
Docket:	   Yor-17-198	    	
Argued:	   November	15,	2017	
Decided:	  December	21,	2017	
                                                                                                   	
Panel:	       ALEXANDER,	MEAD,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
                                         	
                          KEYBANK	NATIONAL	ASSOCIATION	
                                         	
                                        v.	
                                         	
                           ESTATE	OF	EULA	W.	QUINT	et	al.	
	
	
ALEXANDER,	J.	

          [¶1]		KeyBank	National	Association	appeals	from	a	judgment	entered	by	

the	 District	 Court	 (Springvale,	 Dobson,	 J.)	 in	 favor	 of	 Vickie	 L.	 Kilton	 and	 the	

Estate	of	Eula	W.	Quint	on	KeyBank’s	complaint	for	a	residential	foreclosure.1		

KeyBank	 challenges	 the	 court’s	 denial	 of	 its	 motion	 to	 continue	 the	 trial	 and	

the	 court’s	 determination	 that	 KeyBank	 did	 not	 lay	 a	 proper	 foundation	 for	

admitting	 the	 loan	 servicing	 records	 pursuant	 to	 the	 business	 records	

exception	to	the	hearsay	rule.		See	M.R.	Evid.	803(6).		We	affirm	the	judgment.	




    1		The	Estate	of	Eula	W.	Quint	did	not	participate	in	the	appeal,	but	remains	on	the	promissory	

note	and	the	mortgage	and	has	not	been	dismissed	from	the	litigation.	
2	

                                  I.		CASE	HISTORY	

      [¶2]	 	 On	 September	 30,	 2015,	 KeyBank	 filed	 a	 complaint	 for	 a	

residential	foreclosure	against	Quint	and	Kilton	in	the	District	Court.		Shortly	

thereafter,	Kilton	contacted	KeyBank	to	report	that	Quint	had	died.		After	the	

appointment	 of	 a	 special	 administrator	 for	 Quint’s	 estate,	 the	 Estate,	

represented	 by	 counsel,	 filed	 an	 answer	 denying	 the	 allegations	 in	 the	

complaint	and	waiving	mediation.		See	M.R.	Civ.	P.	93(m).		Kilton	did	not	file	an	

answer	 or	 otherwise	 defend	 in	 the	 matter	 until	 the	 trial	 management	

conference	 in	 December	 2016.	 	 At	 that	 conference,	 she	 appeared	

unrepresented.	

      [¶3]		On	April	14,	2017,	the	court	held	a	nonjury	trial.		Neither	counsel	

for	 the	 Estate	 nor	 the	 personal	 representative	 was	 present	 at	 trial.	 	 Kilton	

appeared,	 represented	 by	 an	 attorney	 who	 had	 filed	 a	 notice	 of	 limited	

appearance	that	day.		See	M.R.	Civ.	P.	11(b);	M.R.	Prof.	Conduct	1.2(c),	(d).	

      [¶4]		KeyBank	moved	to	continue	the	trial	for	at	least	a	month,	stating	

that,	 with	 the	 assistance	 of	 her	 attorney,	 Kilton	 could	 apply	 for	 a	 loan	

modification.	 	 KeyBank	 added	 that	 the	 Estate	 was	 not	 present	 and	 therefore	

was	 unable	 to	 protect	 its	 interest	 in	 the	 property.	 	 Kilton	 objected	 to	 the	

motion,	 arguing,	 inter	 alia,	 that	 she	 believed	 that	 KeyBank	 requested	 a	
                                                                                       3	

continuance	 because	 it	 did	 not	 have	 sufficient	 evidence	 to	 support	 its	 claim.		

After	confirming	that	Kilton	understood	the	risk	of	declining	the	opportunity	

for	 a	 loan	 modification	 and	 noting	 that	 KeyBank’s	 burden	 at	 trial	 was	 not	

dependent	on	the	Estate’s	presence,	the	court	denied	KeyBank’s	motion.	

      [¶5]		When	the	trial	began,	KeyBank	first	called	Kilton	to	testify.		Kilton	

admitted	that	she	had	executed	a	promissory	note	in	favor	of	KeyBank,	which	

was	secured	by	a	mortgage	on	property	located	in	Parsonsfield,	and	that	she	

had	 failed	 to	 make	 payments	 due	 on	 the	 note.	 	 On	 cross-examination,	 she	

testified	 that,	 when	 she	 first	 obtained	 the	 loan,	 she	 received	 monthly	 bills	

from	“Countrywide.”	

      [¶6]	 	 KeyBank’s	 only	 other	 witness	 was	 a	 “complex	 liaison”	 from	 PHH	

Mortgage	Services,	which,	he	testified,	is	the	current	loan	servicer	for	KeyBank	

and	 handles	 the	 day-to-day	 operations	 of	 managing	 and	 servicing	 loan	

accounts.		The	complex	liaison	testified	that	he	has	been	an	employee	of	PHH	

in	the	foreclosure	department	for	seven	years.		As	part	of	his	training,	he	had	

worked	 with	 supervisors	 of	 various	 departments—including	 loss	 mitigation,	

collections,	 servicing,	 and	 escrow—to	 understand	 those	 departments’	

processes.	 	 He	 further	 stated	 that	 he	 participates	 in	 training	 annually	 and	
4	

continues	 to	 meet	 with	 members	 of	 other	 departments	 on	 a	 regular	 basis,	

particularly	when	a	question	on	a	loan	arises.	

       [¶7]	 	 The	 complex	 liaison	 testified	 that	 when	 an	 event	 occurs	 on	 an	

account,	such	as	contact	with	the	borrower	or	receipt	of	a	payment,	the	event	

is	 documented	 in	 the	 account	 on	 the	 same	 day.	 	 He	 stated	 that	 he	 does	 not	

have	 the	 ability	 to	 alter	 a	 business	 record	 once	 it	 has	 been	 entered	 into	 the	

system.	 	 He	 also	 described	 PHH’s	 physical	 and	 digital	 security,	 as	 well	 as	

PHH’s	“clean-desk	policy”	and	sign-off	procedure.	

       [¶8]		The	complex	liaison	testified	that	he	has	training	on	and	personal	

knowledge	 of	 the	 “boarding	 process”	 for	 loans	 being	 transferred	 from	 prior	

loan	servicers	to	PHH	and	of	PHH’s	procedures	for	integrating	those	records.		

He	explained	that	transferred	loans	are	put	through	a	series	of	tests	to	check	

the	 accuracy	 of	 any	 amounts	 due	 on	 the	 loan,	 such	 as	 the	 principal	 balance,	

interest,	 escrow	 advances,	 property	 tax,	 hazard	 insurance,	 and	 mortgage	

insurance	premiums.		He	further	explained	that	if	an	error	appears	on	the	test	

report	for	a	loan,	that	loan	will	receive	“special	attention”	to	identify	the	issue,	

and,	“[i]f	it	ultimately	is	something	that	is	not	working	properly,	then	that	loan	

will	not	.	.	.	transfer.”		Loans	that	survive	the	testing	process	are	transferred	to	

PHH’s	system	and	are	used	in	PHH’s	daily	operations.	
                                                                                                                  5	

        [¶9]		The	complex	liaison	testified	that	he	has	access	to	and	is	familiar	

with	 PHH’s	 records	 and	 that	 his	 responsibilities	 include	 reviewing	 those	

records	 on	 a	 daily	 basis.	 	 He	 is	 also	 responsible	 for	 attending	 trials,	

depositions,	 settlement	 conferences,	 and	 mediations.	 	 He	 stated	 that	 before	

attending	a	judicial	proceeding	in	a	foreclosure	action,	he	reviews	everything	

related	to	that	foreclosure.		Specific	to	this	case,	he	testified	that	the	records	

related	to	the	loan	from	KeyBank	to	Kilton	and	Quint	were	kept	in	the	regular	

course	 of	 PHH’s	 business.	 	 He	 stated	 that	 the	 loan	 is	 past	 due	 since	

March	2009	 and	 that	 PHH	 took	 over	 servicing	 of	 the	 loan	 “well	 after	 that	

point.”2	

        [¶10]	 	 The	 court	 admitted	 in	 evidence,	 without	 objection,	 KeyBank’s	

exhibits	 one	 through	 six,	 which	 included	 a	 copy	 of	 the	 original	 promissory	

note	 dated	 April	29,	 2002;3	 a	 copy	 of	 the	 recorded	 mortgage;	 the	 purported	

assignment	of	the	mortgage	by	Mortgage	Electronic	Registration	Systems,	Inc.,	

from	 KeyBank	 to	 Bank	 of	 America	 recorded	 on	 January	9,	 2012;	 the	

ratification	 of	 the	 January	 2012	 assignment	 recorded	 on	 March	 6,	 2015;	 the	

    2		The	witness	testified	that	when	PHH	took	over	servicing	of	the	file,	PHH	“did	a	transfer	with	

multiple	 reviews.”	 	 Kilton	 objected	 to	 the	 testimony	 arguing	 that	 there	 was	 a	 lack	 of	 foundation.		
Before	the	court	ruled	on	the	objection,	KeyBank	offered	to	reword	its	question,	but	then	asked	a	
question	 on	 a	 related	 but	 different	 issue.	 	 The	 challenged	 testimony	 is	 therefore	 not	 a	 part	 of	 the	
record.	
    3		The	court	examined	the	original	promissory	note,	which	KeyBank’s	counsel	retained.	
6	

recorded	assignment	of	the	mortgage	from	Bank	of	America	to	KeyBank	dated	

October	10,	2012;	and	the	notice	of	default	and	right	to	cure	issued	to	Kilton	

and	Quint	by	KeyBank	in	August	2015.		The	complex	liaison	testified	that	an	

allonge	 affixed	 to	 the	 promissory	 note	 transferred	 the	 note	 to	 “Bank	 of	

America,	 N.A.	 as	 Successor	 by	 Merger	 to	 BAC	 Home	 Loans	 Servicing,	 LP	 fka	

Countrywide	Home	Loans	Servicing,	LP,”	but	was	later	voided.	

      [¶11]	 	 Pursuant	 to	 the	 business	 records	 exception	 to	 the	 hearsay	 rule,	

M.R.	Evid.	803(6),	KeyBank	moved	to	admit	exhibit	seven,	which	consisted	of	

screenshots	 from	 PHH’s	 computer	 system	 purporting	 to	 show	 the	 amounts	

owed,	the	costs	incurred,	and	the	outstanding	principal	balance	on	Kilton	and	

Quint’s	 loan.	 	 Kilton	 objected,	 arguing	 that	 PHH’s	 records	 were	 based	 on	 the	

records	 of	 prior	 servicers	 and	 that	 KeyBank	 had	 not	 established	 that	 the	

witness	 had	 knowledge	 of	 the	 record-keeping	 practices	 of	 either	 Bank	 of	

America	 or	 Countrywide.	 	 The	 court	 determined	 that	 the	 complex	 liaison’s	

testimony	 was	 insufficient	 to	 admit	 exhibit	 seven	 pursuant	 to	 the	 business	

records	 exception.	 	 KeyBank	 conceded	 that,	 without	 exhibit	 seven,	 it	 would	

not	be	able	to	prove	the	amount	owed	on	the	loan,	which	KeyBank	correctly	

acknowledged	 was	 an	 essential	 element	 of	 its	 foreclosure	 action.	 	 Kilton	

moved	for	a	judgment	as	a	matter	of	law,	see	M.R.	Civ.	P.	50(d),	and	the	court	
                                                                                                        7	

entered	a	judgment	in	favor	of	Kilton	and	the	Estate.		KeyBank	timely	filed	this	

appeal.		See	14	M.R.S.	§	1901	(2016);	M.R.	App.	P.	2	(Tower	2016).4	

                                       II.		LEGAL	ANALYSIS	

A.	        Business	Records	Exception	

	          [¶12]	 	 KeyBank’s	 primary	 contention	 on	 appeal	 is	 that	 the	 trial	 court	

erred	by	finding	that	it	had	not	laid	a	proper	foundation	for	admitting	PHH’s	

loan	 servicing	 records	 pursuant	 to	 the	 business	 records	 exception	 when	 the	

complex	liaison	offered	detailed	testimony	about	his	training	and	experience	

in—and	 PHH’s	 procedures	 for—receiving	 and	 integrating	 records	 of	 prior	

loan	servicers.	

           [¶13]	 	 A	 trial	 court’s	 determination	 regarding	 whether	 the	 necessary	

factual	 foundation	 to	 admit	 evidence	 pursuant	 to	 the	 business	 records	

exception	 has,	 or	 has	 not,	 been	 established	 is	 reviewed	 for	 clear	 error.		

Beneficial	 Me.	 Inc.	 v.	 Carter,	 2011	ME	 77,	 ¶	 9,	 25	 A.3d	 96;	 Maine	 Appellate	

Practice	§	419	at	278	(4th	ed.	2013).		A	“clear	error”	standard	on	evidentiary	

foundation	 issues	 requires	 us	 to	 determine	 if	 the	 trial	 court’s	 ruling	 is	

supported	by	and	consistent	with	the	facts	that	appear	in	the	record.		See	State	

v.	Dilley,	2008	ME	5,	¶	25,	938	A.2d	804;	State	v.	Buchanan,	2007	ME	58,	¶	8,	

      4	
     	 This	 appeal	 was	 filed	 before	 September	 1,	 2017;	 therefore,	 the	 restyled	 Maine	 Rules	 of	
Appellate	Procedure	do	not	apply.		See	M.R.	App.	P.	1	(restyled	Rules).	
8	

921	A.2d	159.	 	 When	 the	 appealing	 party	 was	 the	 proponent	 of	 the	 evidence	

that	 was	 not	 admitted	 at	 trial,	 that	 party	 “must	 demonstrate	 that	 a	 contrary	

finding	was	compelled	by	the	evidence.”		Handrahan	v.	Malenko,	2011	ME	15,	

¶	13,	12	A.3d	79.	

      [¶14]	 	 “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).”		Ocean	Communities	Fed.	Credit	Union	

v.	Roberge,	2016	ME	118,	¶	9,	144	A.3d	1178.		M.R.	Evid.	803(6)	provides	that	

a	business	record	is	admissible	if	

      (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)	 Neither	 the	 source	 of	 information	 nor	 the	 method	 or	
      circumstances	of	preparation	indicate	a	lack	of	trustworthiness.	

      [¶15]	 	 “A	 qualified	 witness	 is	 one	 who	 was	 intimately	 involved	 in	 the	

daily	 operation	 of	 the	 business	 and	 whose	 testimony	 showed	 the	 firsthand	
                                                                                           9	

nature	 of	 his	 knowledge.”	 	 HSBC	 Mortg.	 Servs.	 v.	 Murphy,	 2011	 ME	 59,	 ¶	 10,	

19	A.3d	 815	 (alteration	 omitted).	 	 The	 qualified	 witness	 “need	 not	 be	 an	

employee	of	the	record’s	creator.”		Carter,	2011	ME	77,	¶	13,	25	A.3d	96.		For	

example,	 “if	 the	 records	 [from	 the	 producing	 business]	 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.	 	 In	 such	 instances,	 the	 business	 records	 will	 be	

admissible	“if	the	foundational	evidence	from	the	receiving	entity’s	employee	

is	 adequate	 to	 demonstrate	 that	 the	 employee	 had	 sufficient	 knowledge	 of	

both	 businesses’	 regular	 practices	 to	 demonstrate	 the	 reliability	 and	

trustworthiness	of	the	information.”		Id.	(emphasis	added).	

       [¶16]	 	 Carter	 provides	 the	 criteria	 that	 must	 be	 established	 when	 a	

party	seeks	to	admit	integrated	business	records.		Id.	¶¶	12-14.		The	witness	

must	demonstrate	knowledge	that		

   • the	producer	of	the	record	at	issue	employed	regular	business	practices	
     for	creating	and	maintaining	the	records	that	were	sufficiently	accepted	
     by	 the	 receiving	 business	 to	 allow	 reliance	 on	 the	 records	 by	 the	
     receiving	business;	
     	
   • the	producer	of	the	record	at	issue	employed	regular	business	practices	
     for	transmitting	them	to	the	receiving	business;	
     	
10	

      • by	manual	or	electronic	processes,	the	receiving	business	integrated	the	
        records	 into	 its	 own	 records	 and	 maintained	 them	 through	 regular	
        business	processes;	
        	
      • the	 record	 at	 issue	 was,	 in	 fact,	 among	 the	 receiving	 business’s	 own	
        records;	and	
        	
      • the	 receiving	 business	 relied	 on	 these	 records	 in	 its	 day-to-day	
        operations.	
		
Id.	 ¶	14.	 	 Thus,	 a	 witness	 may	 lay	 a	 proper	 foundation	 to	 admit	 integrated	

business	records	if	the	witness’s	testimony	satisfies	the	requirements	of	both	

M.R.	Evid.	803(6)	and	Carter,	2011	ME	77,	¶¶	12-14,	25	A.3d	96.	

	         [¶17]		With	these	standards	in	mind,	we	turn	to	the	record	in	this	case.		

The	 complex	 liaison	 provided	 substantial	 testimony	 establishing	 that	 he	 had	

firsthand	knowledge	of	PHH’s	practices	and	that	he	was	“intimately	involved	

in	 the	 daily	 operations	 of	 the	 business.”5	 	 See	 Homeward	 Residential,	 Inc.	 v.	

Gregor,	 2015	 ME	 108,	 ¶	 14	 n.11,	 122	 A.3d	 947.	 	 Nevertheless,	 he	 was	 not	

qualified	 to	 lay	 the	 foundation	 for	 the	 admission	 of	 the	 screenshots	 from	

PHH’s	 computer	 system	 purporting	 to	 show	 the	 amount	 owed	 on	 the	 loan	

      5		The	complex	liaison	testified	to	his	job	title,	his	job	responsibilities,	the	number	of	years	that	

he	 had	 served	 in	 that	 position,	 his	 training,	 his	 direct	 observation	 of	 the	 loan	 servicer’s	 daily	
operations,	 his	 level	 of	 familiarity	 with	 the	 records,	 how	 the	 records	 are	 received	 from	 prior	
servicers,	 how	 those	 records	 are	 checked	 for	 accuracy,	 the	 procedure	 for	 handling	 transferred	
records	that	contain	errors,	how	the	records	are	accessed	and	what	security	measures	are	in	place,	
where	the	records	are	maintained,	how	often	he	accesses	the	records,	the	nature	of	the	servicer’s	
role	 as	 related	 to	 the	 bank,	 the	 servicer’s	 responsibilities	 and	 activities	 regarding	 the	 bank’s	
accounts,	 his	 level	 of	 preparation	 in	 reviewing	 records	 for	 foreclosure	 proceedings,	 and	 PHH’s	
servicing	of	Kilton	and	Quint’s	loan	for	KeyBank.	
                                                                                                                 11	

because	 PHH’s	 records	 integrated	 the	 records	 of	 prior	 servicers,	 and	 the	

complex	liaison	provided	no	testimony	about	the	“regular	business	practices”	

of	those	prior	servicers.6	

        [¶18]	 	 The	 record	 available	 to	 us	 contains	 gaps	 regarding	 the	 loan	

servicing	 history.	 	 On	 April	 29,	 2002,	 Kilton	 and	 Quint	 signed	 a	 promissory	

note	 in	 the	 amount	 of	 $65,000	 in	 favor	 of	 KeyBank.	 	 After	 they	 obtained	 the	

loan,	Kilton	received	monthly	bills	from	Countrywide.		By	an	undated	allonge,	

KeyBank	endorsed	the	note	to	the	order	of	Bank	of	America	as	successor	by	

merger	 to	 BAC	 Home	 Loans	 Servicing,	 which	 was	 formerly	 known	 as	

Countrywide	Home	Loans	Servicing.		On	an	unknown	date,	the	allonge	to	the	

note	was	voided,	transferring	the	interest	in	the	note	back	to	KeyBank.		Kilton	

and	 Quint	 defaulted	 on	 the	 loan	 on	 March	 1,	 2009,	 and	 PHH	 took	 over	

servicing	of	the	loan	for	KeyBank	“well	after	that	point.”	

        [¶19]		Except	for	Kilton’s	testimony	that	she	initially	received	monthly	

bills	 from	 “Countrywide,”	 the	 record	 is	 devoid	 of	 evidence	 concerning	 who	

    6		This	case	is	distinguishable	from	Midland	Funding	LLC	v.	Walton,	2017	ME	24,	155	A.3d	864,	

a	credit	 card	 debt	 collection	 case.	 	 In	 Midland	 Funding,	 we	 affirmed	 a	 trial	 court’s	 finding	 that	 a	
sufficient	 foundation	 had	 been	 established	 pursuant	 to	 the	 business	 records	 exception,	 M.R.	 Evid.	
803(6),	 to	 permit	 a	 representative	 of	 a	 debt	 servicer	 for	 Midland	 to	 testify	 from	 her	 electronic	
records	demonstrating	the	amount	of	the	debt	and	the	transfer	history	of	the	account	from	Barclays	
Bank	 Delaware	 to	 Midland.	 	 Id.	 ¶¶	 4-7,	 28.	 	 While	 the	 debt	 servicer’s	 representative	 did	 not	 have	
knowledge	 of	 the	 day-to-day	 operations	 of	 Barclays,	 the	 loan	 originator,	 id.	 ¶¶	 6,	 21	 n.4,	 the	 trial	
court’s	finding	of	sufficient	foundation	for	admission	of	her	testimony	about	the	business	records	
was	 supported	 because	 the	 debtor’s	 “own	 admissions	 confirm[ed]	 the	 accuracy	 of	 the	 records	
reflecting	his	particular	indebtedness.”		Id.	¶¶	9,	18,	27.	
12	

serviced	 the	 loan	 from	 the	 date	 the	 note	 was	 executed	 until	 PHH	 began	

servicing	the	loan	at	some	point	in	time	well	after	March	2009.		Although	the	

witness	 testified	 about	 the	 procedures	 employed	 by	 PHH	 to	 check	 for	

accuracy	 when	 boarding	 loans	 from	 other	 servicers,	 his	 testimony	 was	

insufficient	 to	 establish	 that	 those	 prior	 loan	 servicers	 engaged	 in	 regular	

business	 practices	 that	 satisfy	 the	 requirements	 of	 M.R.	 Evid.	 803(6)	 and	

Carter.	 	 Based	 on	 this	 record,	 the	 trial	 court	 did	 not	 err	 by	 determining	 that	

KeyBank	 did	 not	 lay	 a	 proper	 foundation	 for	 admitting	 PHH’s	 loan	 servicing	

records	that	were	based	on	records	of	other	loan	servicers	that	preceded	PHH,	

and	 KeyBank	 has	 not	 demonstrated	 that	 the	 evidence	 compelled	 a	 contrary	

finding.7	

B.	     Motion	for	a	Continuance	

        [¶20]	 	 KeyBank	 also	 argues	 that	 the	 court	 abused	 its	 discretion	 by	

denying	 its	 motion	 to	 continue	 because	 Kilton’s	 appearance	 at	 trial	 with	

counsel	 constituted	 unfair	 surprise,	 and	 KeyBank	 would	 have	 prepared	 for	

trial	 in	 a	 substantially	 different	 manner	 had	 it	 received	 notice	 that	 there	

would	 be	 opposing	 counsel.	 	 We	 review	 a	 court’s	 decision	 to	 deny	 a	 request	
    7	 	 KeyBank’s	 admission	 at	 oral	 argument	 before	 this	 Court	 further	 supports	 the	 trial	 court’s	

ruling.	 	 At	 oral	 argument,	 Kilton	 asserted	 that	 exhibit	 eight,	 which	 was	 not	 presented	 to	 the	 trial	
court,	 demonstrated	 that	 the	 loan	 was	 serviced	 by	 Bank	 of	 America	 from	 2002	 to	 2014.	 	 When	
questioned	directly	whether	Bank	of	America	or	Countrywide	serviced	the	loan	after	the	note	was	
executed,	KeyBank	admitted	that	Kilton’s	assertion	was	true.	
                                                                                       13	

for	 a	 continuance	 for	 an	 abuse	 of	 discretion.	 	 Hero	 v.	 Macomber,	 2016	ME	 4,	

¶	7,	 130	A.3d	 398.	 	 When	 reviewing	 the	 trial	 court’s	 denial	 of	 a	 motion	 to	

continue,	 “we	 look	 first	 at	 the	 reasons	 contemporaneously	 presented	 in	

support	 of	 the	 request	 for	 the	 continuance	 because	 the	 party	 seeking	 a	

continuance	has	the	burden	of	establishing	a	substantial	reason	why	granting	

the	 continuance	 would	 further	 justice.”	 	 Id.	 	 We	 then	 examine	 “whether	 the	

denial	 had	 any	 adverse	 prejudicial	effect	 on	 the	 movant’s	 substantial	 rights.”		

Id.	

       [¶21]	 	 At	 trial,	 KeyBank	 presented	 two	 reasons	 to	 support	 its	 request	

for	a	continuance:	(1)	Kilton	could	now	apply	for	a	loan	modification	with	her	

attorney’s	 assistance,	 and	 (2)	 the	 Estate	 was	 not	 present.	 	 Kilton	 expressly	

rejected	the	loan	modification	option,	which	had	no	effect	on	KeyBank’s	trial	

strategy,	 and	 KeyBank	 conceded	 at	 trial	 that	 the	 Estate’s	 absence	 would	 not	

affect	 the	 outcome	 of	 the	 case.	 	 Because	 KeyBank	 did	 not	 establish	 a	

substantial	 reason	 as	 to	 why	 a	 continuance	 would	 further	 the	 interests	 of	

justice,	the	trial	court	did	not	abuse	its	discretion	by	denying	the	motion.	

       [¶22]	 	 On	 appeal,	 KeyBank	 offers	 different	 reasons	 to	 support	 its	

request	 for	 a	 continuance.	 	 See	 Teel	 v.	 Colson,	 396	 A.2d	 529,	 534	 (Me.	 1979)	

(“It	is	a	well	settled	universal	rule	of	appellate	procedure	that	a	case	will	not	
14	

be	reviewed	by	an	appellate	court	on	a	theory	different	from	that	on	which	it	

was	 tried	 in	 the	 court	 below.”).	 	 Even	 if	 KeyBank	 properly	 preserved	 this	

argument	 for	 appellate	 review,	 we	 are	 not	 persuaded	 that,	 in	 the	

circumstances	 presented	 here,	 a	 party’s	 appearance	 at	 trial,	 with	 or	 without	

counsel,	 constitutes	 unfair	 surprise	 warranting	 a	 continuance.	 	 Nor	 are	 we	

persuaded	 that	 KeyBank	 was	 prejudiced.	 	 Kilton’s	 attorney’s	 appearance	 did	

not	 change	 KeyBank’s	 burden	 of	 proof,	 and	 Kilton	 called	 no	 witnesses	 and	

offered	no	evidence	to	which	KeyBank	might	have	had	to	respond.	

      [¶23]	 	 Thus,	 the	 trial	 that	 was	 actually	 held	 was	 no	 different	 than	 the	

trial	for	which	KeyBank	should	have	been	prepared.		See	Fox	Island	Granite	Co.	

v.	Am.	Granite	Mfrs.,	Inc.,	2006	ME	14,	¶¶	4-8,	890	A.2d	700	(concluding	that	a	

party’s	 lack	 of	 preparation	 for	 a	 damages	 hearing	 did	 not	 justify	 a	

continuance);	Pelletier	v.	Pelletier,	597	A.2d	60,	61	(Me.	1991)	(concluding	that	

the	 trial	 court	 did	 not	 abuse	 its	 discretion	 by	 denying	 a	 motion	 to	 continue	

based	on	a	party’s	lack	of	preparation	when	that	party	had	sufficient	notice	of	

the	 hearing,	 had	 a	 full	 opportunity	 to	 present	 his	 case,	 and	 failed	 to	

demonstrate	any	prejudice).	

      The	entry	is:	

                    Judgment	affirmed.		
	                        	
                                                                                       15	

	      	      	       	      	      	
	
Brent	L.	Messinger,	Esq.	(orally),	Andrea	T.	Holbrook,	Esq.,	and	David	C.	West,	
Esq.,	Portland,	for	appellant	KeyBank	National	Association	
	
Thomas	A.	Cox,	Esq.	(orally),	Portland,	for	appellee	Vickie	L.	Kilton	
	
Frank	 D’Alessandro,	 Esq.,	 Chet	 Randal,	 Esq.,	 and	 Jonathan	 E.	 Selkowitz,	 Esq.,	
Pine	 Tree	 Legal	 Assistance,	 Inc.,	 Portland,	 for	 amicus	 curiae	 Pine	 Tree	 Legal	
Assistance,	Inc.	
	
John	 D.	 Clifford,	 IV,	 Clifford	 &	 Golden,	 P.A.,	 Lisbon	 Falls,	 for	 amicus	 curiae	
Maine	Attorneys	Saving	Homes	
	
	
Springvale	District	Court	docket	number	RE-2015-79	
FOR	CLERK	REFERENCE	ONLY	
