MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	     2018	ME	121	
Docket:	       Pen-17-510	
Submitted	
			On	Briefs:	 May	31,	2018	
Decided:	      August	16,	2018	
                                                                                         	
Panel:	       ALEXANDER,	GORMAN,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                                   M&T	BANK	
                                        	
                                       v.	
                                        	
                               LAWRENCE	F.	PLAISTED	
	
	
ALEXANDER,	J.	

          [¶1]		In	Homeward	Residential,	Inc.	v.	Gregor,	2015	ME	108,	122	A.3d	947,	

a	residential	mortgage	foreclosure	case,	we	addressed	issues,	also	presented	in	

this	 appeal,	 of	 gaps	 in	 evidence	 regarding	 elements	 essential	 to	 prove	 the	

financial	 institution’s	 claim.	 	 There	 we	 observed:	 “The	 financial	 services	

industry,	through	the	practice	of	securitization,	spawning	a	byzantine	mass	of	

assignments,	transfers,	and	documentation,	has	made	it	difficult	for	subsequent	

assignees	to	demonstrate	that	they	have	standing	to	bring	foreclosure	claims	

and	prove	the	elements	necessary	to	prevail	in	a	foreclosure	action	in	a	manner	

compliant	 with	 the	 laws	 governing	 foreclosure.”	 	 Id.	 ¶	 13	 (footnote	 omitted)	

(citation	omitted).		We	further	observed	that	reliance	on	multiple	entities	that	

create,	 assign,	 process,	 and	 service	 a	 mortgage	 loan	 makes	 it	 “difficult	 or	
2	

impossible	to	acquire	necessary	records	that	qualify	for	admission	under	the	

business	records	exception	to	the	hearsay	rule,	M.R.	Evid.	803(6),	in	order	to	

prove	ownership	of	the	mortgage,	proper	notice	of	defaults,	and	sums	due	and	

paid.”		Gregor,	2015	ME	108,	¶	13,	122	A.3d	947.		

      [¶2]	 	 Here,	 where	 the	 record	 indicates	 that	 multiple	 entities	 were	

involved	 in	 servicing	 the	 loan	 at	 issue,	 M&T	 Bank	 presented	 insufficiently	

authenticated	 and	 conflicting	 evidence	 as	 to	 the	 sums	 due	 and	 owing	 on	 the	

mortgage	loan.		In	Gregor,	we	stated:	“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.”		Id.	¶	14	(citing	

Bank	of	Am.,	N.A.	v.	Greenleaf,	2014	ME	89,	¶¶	8-17,	24-27,	96	A.3d	700).			

      [¶3]	 	 This	 appeal	 does	 not	 involve	 a	 residential	 mortgage,	 but	 the	

problems	 of	 evidence	 quality,	 accuracy,	 and	 authentication	 it	 presents	 are	

similar	 to	 problems	 observed	 in	 other	 foreclosure	 appeals	 coming	 before	 us.		

To	 assist	 the	 parties	 and	 the	 courts	 in	 assessment	 of	 the	 evidence	 quality,	

accuracy,	 and	 authentication	 in	 this	 and	 future	 cases,	 we	 use	 this	 opinion	 to	

suggest	 some	 standards	 that	 evidence	 should	 meet	 to	 sufficiently	 support	 a	
                                                                                                            3	

claim	 in	 a	 foreclosure	 action	 where	 several	 entities	 have	 been	 involved	 in	

servicing	the	loan.	

        [¶4]	 	 Lawrence	 F.	 Plaisted	 appeals	 from	 a	 judgment	 of	 foreclosure	

entered	 by	 the	 District	 Court	 (Bangor,	 Mallonee,	 J.)	 in	 favor	 of	 M&T	 Bank	

following	 a	 nonjury	 trial	 on	 M&T	 Bank’s	 complaint.	 	 Plaisted	 challenges	 the	

court’s	 determinations	 that	 (1)	 M&T	 Bank	 laid	 a	 proper	 foundation	 for	

admitting	loan	servicing	records	pursuant	to	the	business	records	exception	to	

the	hearsay	rule,	M.R.	Evid.	803(6)	(Tower	2017),1	and	(2)	M&T	Bank	proved	

the	amount	owed	on	the	note.		We	agree	with	Plaisted’s	arguments,	vacate	the	

judgment,	and	remand	for	entry	of	a	judgment	in	favor	of	Plaisted.	

                                          I.		CASE	HISTORY	

        [¶5]	 	 The	 following	 facts	 are	 either	 undisputed	 or	 taken	 from	 the	

judgment,	viewed	in	the	light	most	favorable	to	M&T	Bank,	the	prevailing	party	

in	the	trial	court.		See	Deutsche	Bank	Nat’l	Tr.	Co.	v.	Eddins,	 2018	 ME	 47,	¶	2,	

182	A.3d	1241.		On	February	8,	2007,	Plaisted	executed	a	promissory	note	in	

favor	of	InterBay	Funding,	LLC,	in	the	principal	amount	of	$478,500.		To	secure	


   1	 	 Maine	 Rule	 of	 Evidence	 803(6)	 was	 recently	 amended	 to	 clarify	 that	 the	 proponent	 of	 the	

business	 record	 bears	 the	 burden	 of	 establishing	 the	 foundational	 elements	 listed	 in	 subsections	
(A)-(D)	 of	 Rule	 803(6)	and	 that	 the	 opponent	 bears	 the	 burden	 of	 establishing	that	 the	 source	 of	
information	 or	 the	 method	 or	 circumstances	 of	 preparation	 of	 the	 record	 indicate	 a	 lack	 of	
trustworthiness	 pursuant	 to	 subsection	 (E).	 	 2018	 Me.	 Rules	 09	 (effective	 Aug.	 1,	 2018).	 	 This	
amendment	is	not	a	substantive	change	to	the	Rule	and	does	not	affect	the	present	case.		See	M.R.	
Evid.	803(6)	Advisory	Committee	Note	to	2018	amend.	
4	

payment	on	the	 note,	Plaisted	 executed	 a	mortgage,	 also	in	favor	of	InterBay	

Funding,	 on	 real	 property	 in	 Hampden	 to	 be	 used	 for	 business	 purposes.		

InterBay	Funding	executed	a	document	purporting	to	assign	an	interest	in	the	

mortgage	 to	 Bayview	 Loan	 Servicing,	 LLC,	 and	 Bayview	 Loan	 Servicing	

executed	a	document	purporting	to	assign	its	interest	in	the	mortgage	to	M&T	

Bank.			

         [¶6]		In	May	2016,	M&T	Bank	filed	a	complaint	for	foreclosure	alleging	

that	Plaisted	had	defaulted	by	failing	to	make	payments	on	the	note	beginning	

on	November	1,	2013.2		Plaisted	timely	answered,	and,	after	mediation	proved	

unsuccessful,	the	parties	proceeded	to	trial	in	July	2017.			

     	   [¶7]		At	trial,	the	only	witness	was	a	litigation	manager	for	Bayview	Loan	

Servicing	 who	 testified	 that	 Plaisted’s	 loan	 had	 two	 servicers:	 Bayview	 Loan	

Servicing	and	M&T	Bank.				

     	   [¶8]		The	witness	testified	about	his	training	and	job	responsibilities	as	a	

litigation	 manager	 for	 Bayview.	 	 He	 testified	 that	 he	 had	 been	 employed	 by	

Bayview	 for	 four	 and	 a	 half	 years	 and	 that	 his	 responsibilities	 included	

reviewing	 the	 business	 records	 for	 a	 loan—including	 the	 note,	 mortgage,	

payment	history,	and	default	notices—and	attending	court	proceedings.		The	


     2		The	complaint	also	named	CitiBank	(South	Dakota),	N.A.	as	a	party	in	interest.		CitiBank	did	not	

appear	before	the	trial	court	and	is	not	a	participant	in	this	appeal.	
                                                                                          5	

litigation	manager	testified	that	during	 his	training	he	“[sat]	down	with	each	

and	 every	 department	 within	 Bayview,”	 including	 the	 payment	 processing	

department,	 to	 observe	 their	 operations.	 	 He	 described	 the	 training	 as	 both	

“classroom”	and	“hands	on.”		He	also	testified	that	he	participates	in	ongoing	

training	to	stay	current	with	industry	practices.			

  	    [¶9]	 	 The	 litigation	 manager	 testified	 about	 Bayview’s	 recordkeeping	

system	 and	 security	 practices.	 	 He	 stated	 that	 Bayview’s	 electronic	 servicing	

platform	 stores	 all	 of	 the	 data	 related	 to	 a	 loan,	 including	 digital	 images	 of	

documents	 and	 payment	 information.	 	 He	 testified	 that	 payments	 and	

disbursements	are	entered	into	the	system	at	or	near	the	time	of	the	event	and	

that	Bayview	relies	on	these	records	in	its	day-to-day	operations.		He	further	

testified	 that	 Bayview’s	 servicing	 platform	 is	 an	 encrypted	 recordkeeping	

system	that	requires	a	log-in	and	password.			

  	    [¶10]		The	litigation	manager	testified	that	Bayview	has	been	servicing	

Plaisted’s	 loan	 since	 its	 origination	 and	 claimed	 that,	 at	 some	 point	 after	

Plaisted	 defaulted,	 M&T	 Bank	 began	 “subservicing”	 the	 loan	 on	 behalf	 of	

Bayview.		He	described	the	relationship	between	Bayview	and	M&T	Bank	as	a	

“component	relationship”	and	a	“working	relationship.”		He	explained	that	M&T	

Bank	handles	“the	front	end	of	the	loan,”	which	includes	payment	processing,	
6	

while	 Bayview	 handles	 “the	 back	 end	 of	 the	 loan,”	 which	 includes	 loss	

mitigation	and	foreclosure.			

     	   [¶11]		He	testified	that	M&T	Bank	uses	Bayview’s	servicing	platform.		He	

explained	that,	on	the	live	platform,	Bayview	is	“able	to	see	.	.	.	when	an	M&T	

employee	is	in	the	system,	updating	the	system	.	.	.	.		We	can	physically	interact	

with	 an	 M&T	 employee	 through	 the	 same	 system.	 	 It’s	 almost	 as	 if	 we	 work	

together	.	.	.	.		We’re	just	not	in	the	same	location.”		He	added,	however,	that	M&T	

Bank	does	not	use	Bayview’s	imaging	system	for	storing	loan	documents.			

     	   [¶12]		The	Bayview	litigation	manager	claimed	to	be	a	custodian	of	M&T	

Bank’s	records	but	testified	that	he	is	not	employed	by	M&T	Bank,	has	never	

spoken	 with	 anyone	 from	 M&T	 Bank,	 and	 did	 not	 know	 where	 M&T	 Bank	 is	

located.3	

     	   [¶13]	 	 The	 court	 admitted	 several	 exhibits	 offered	 by	 M&T	 Bank,	

including	 a	 copy	 of	 the	 original	 promissory	 note,	 a	 copy	 of	 the	 recorded	

mortgage	and	the	subsequent	assignments,	and	a	copy	of	the	notice	of	default	

and	right	to	cure.		The	court	also	admitted	Exhibit	E,	which	consisted	of	many	

screenshots	of	Bayview’s	servicing	platform,	purporting	to	show	the	payment	



     3		When	asked	during	voir	dire	where	M&T	Bank	is	located,	the	litigation	manager	guessed	that	

the	bank	is	located	in	Ohio,	but,	after	reviewing	mortgage	documents,	testified	that	it	is	located	in	
New	York.			
                                                                                       7	

history	 and	 the	 amount	 owed	 on	 the	 loan.	 	 Apparently,	 no	 single	 printout	 or	

digital	 record	 demonstrating	 the	 payment	 history	 and	 amounts	 owed	 on	 the	

loan—the	 equivalent	 of	 a	 ledger	 sheet	 from	 the	 days	 of	 paper	 records—was	

available.		The	litigation	manager	testified	that,	based	on	his	review	of	Exhibit	

E,	the	loan	remained	in	default	and	that	“the	amounts	set	forth	in	[M&T	Bank’s]	

proposed	judgment	are	fully	substantiated	by	Bayview’s	system	of	record.”			

  	   [¶14]		The	litigation	manager	was	unable	to	explain	certain	discrepancies	

in	amounts	claimed	to	be	due.		For	example,	a	notice	of	default	sent	to	Plaisted	

in	 July	 2014	 indicated	 that	 the	 loan	 payoff	 amount	 was	 $509,906.69.	 	 A	

subsequent	 notice	 of	 default	 sent	 in	 September	 2015	 indicated	 that	 the	 loan	

payoff	 amount	 was	 $632,618.71.	 	 No	 document,	 ledger,	 or	 digital	 exhibit	

tracked	the	changes	in	the	sums	due	or	the	reasons	for	the	changes	between	

July	2014	and	September	2015.	

      [¶15]		When	 asked	to	explain	the	$122,712.02	increase	over	that	time,	

the	litigation	manager,	after	engaging	in	extensive	mathematical	calculations,	

was	 unable	 to	 account	 for	 $94,627.59	 of	 the	 increase	 with	 any	 degree	 of	

certainty.		He	stated	that	it	“could	have	been”	for	attorney	fees	and	other	costs	

and	that	“[i]t’s	all	kind	of	lumped	into	one	amount,	so	.	.	.	I	don’t	know	what	the	

breakdown	is.”		He	explained:	
8	

         If	 I	 were	 to	 go	 line	 by	 line	 with	 a	 couple	 of	 different	 colored	
         highlighters,	it	would	take	me	a	couple	hours	to	give	you	a	specific	
         amount.	 	 I	 don’t	 think	 we	 have	 that	 kind	 of	 time	 today.	 	 I	 have	 a	
         different	department	that	usually	runs	these	figures	for	me	and	can	
         give	 me	 a	 nice	 clean	 breakdown	 for	 Your	 Honor	 and	 for	 both	
         lawyers	 aside.	 .	 .	 .	 	 I	 just—if	 we	 were	 to	 go	 line	 by	 line	 with	 the	
         payment	history,	we	have	other	departments	that	can	do	that	that	
         would—produce	 a	 document	 that—that	 is	 a	 little	 bit	 more	
         comprehensive	to	what	you	are	seeking.		The	document	that	I	was	
         able	to	find	was	a	payoff	up	until	September	of	2015	.	.	.	.		
     	
     	   [¶16]	 	 When	 asked	 why	 M&T	 Bank	 was	 seeking	 $604,616.22	 in	 its	

proposed	judgment—$28,000	less	than	the	September	2015	payoff	amount—

the	 litigation	 manager	 testified	 that	 he	 was	 “unsure”	 why	 the	 amount	 in	 the	

proposed	 judgment	 was	 less	 than	 the	 amount	 in	 the	 notice	 of	 default.	 	 The	

litigation	manager	was	unable	to	state	how	much	Plaisted	had	paid	on	the	loan	

between	2007	and	2013,	stating	that	he	would	“need	some	time	to	add	up	all	

the	 payments.”	 	 Nevertheless,	 he	 testified	 that	 he	 was	 certain	 that	 the	 total	

amount	 owed	 on	 the	 loan	 as	 of	 July	2017	 was	 $600,520.22,	 plus	 outstanding	

fees	and	costs	incurred	by	counsel	for	the	trial.			

     	   [¶17]		During	closing	arguments,	M&T	Bank	conceded	that	the	Bayview	

litigation	 manager	 was	 unable	 to	 explain	 “mathematically”	 the	 differences	

among	the	purported	payoff	amounts	but	argued	that	there	is	no	requirement	

that	a	payoff	amount	listed	in	a	notice	of	default	be	accurate	and	further	argued	

that	 the	 amount	 listed	 in	 a	 notice	 of	 default	 has	 no	 bearing	 on	 the	 amount	
                                                                                        9	

sought	 in	 the	 judgment.	 	 M&T	 Bank	 argued	 that	 Exhibit	 E	 and	 the	 litigation	

manager’s	 testimony,	 confused	 as	 it	 was,	 established	 the	 amount	 owed.	 	 The	

court	asked	whether	it	was	M&T	Bank’s	position	that	“if	[the	court]	were	to	go	

through	 Exhibit	 E,	 exhaustively,	 and	 add	 up	 every	 transaction,	 the	 numbers	

would	 correlate	 with	 the	 numbers	 you’ve	 incorporated	 in	 your	 proposed	

judgment,”	to	which	M&T	Bank	agreed.			

  	    [¶18]		On	August	24,	2017,	the	court	entered	a	judgment	of	foreclosure	

in	favor	of	 M&T	 Bank	 in	the	amount	of	 $604,616.22,4	the	same	amount	 as	in	

M&T	Bank’s	proposed	judgment.		Plaisted	filed	a	motion	for	further	findings	of	

fact	 and	 conclusions	 of	 law,	 see	 M.R.	 Civ.	 P.	 52(b),	 which	 the	 court	 denied.		

Plaisted	timely	filed	a	notice	of	appeal.		See	14	M.R.S.	§	1901	(2017);	M.R.	App.	

P.	2A,	2B.	




  4		The	court’s	judgment	provided	that	the	following	amounts	are	owed	to	M&T	Bank:	

  	
  a.		Principal	Balance	          	        	        $	491,172.36	
  b.		Accrued	Interest		          	        	        $			74,	985.59	
  	     (plus	interest	at	a	per	diem	of	$54.57)	
  c.		Pre-acceleration	Late	Charges	 	              $						1,754.61	
  d.		Escrow	Advances	            	        	        $				27,834.80	
  e.		Property	Inspections	 	              	        $										546.00	
  g.		Market	Analysis	 	          	        	        $										900.00	
  h.		NSF	Charges	       	        	        	        $												20.00	
  i.		Attorney’s	Fees	 	          	        	        $						6,125.00	
  j.		Attorney’s	Costs	 	         	        	        $						1,277.86	
           ____________________________________________________________	
  Total	        	        	        	        	        $	604,616.22	
  	
10	

                                           II.		LEGAL	ANALYSIS	

	        [¶19]		Plaisted	argues	that	the	court	abused	its	discretion	by	admitting	

Exhibit	E	pursuant	to	the	business	records	exception	to	the	hearsay	rule	and	

erred	in	concluding	that	M&T	Bank	proved	the	amount	owed	on	the	note.5		“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.”		KeyBank	Nat’l	Ass’n	v.	Estate	of	

Quint,	2017	ME	237,	¶	13,	176	A.3d	717.	

	        [¶20]	 	 “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.	 	 Rule	 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;	
         	

    5	 	 Plaisted	 also	 challenges	the	 adequacy	 of	 the	 notice	 of	 default	and	 right	 to	 cure.	 	 Because	 we	

conclude	 that	 the	 court	 erred	 in	 determining	 that	 the	 foundational	 requirements	 for	 admitting	
Exhibit	E	had	been	established,	we	need	not	address	the	issue	of	the	adequacy	of	the	notice.	
                                                                                     11	

      (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.	

      [¶21]		A	person	is	a	custodian	of	records	“if	the	custody	of	the	records	

comes	 anywhere	 within	 the	 immediate	 or	 ultimate	 purview	 of	 his	 duties.”		

Field	&	Murray,	Maine	Evidence	§	803.6	at	484	(6th	ed.	2007).		Likewise,	“[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”	 but	 who	 “need	 not	 be	 an	 employee	 of	 the	 record’s	 creator.”		

Estate	of	Quint,	2017	ME	237,	¶	15,	176	A.3d	717;	accord	HSBC	Mortg.	Servs.,	Inc.	

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

      [¶22]		When	a	business	integrates	and	relies	upon	the	records	of	another	

business	in	that	business’s	day-to-day	operations,	the	presenting	witness	must	

have	“sufficient	knowledge	of	both	businesses’	regular	practices	to	demonstrate	

the	 reliability	 and	 trustworthiness	 of	 the	 information.”	 	 Estate	 of	 Quint,	

2017	ME	237,	¶	15,	176	A.3d	717.	

      [¶23]		A	witness	for	a	party	seeking	to	admit	integrated	business	records	

must	demonstrate	knowledge	that	
12	

      •		 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;	

      •		 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.	¶	16;	Beneficial	Me.	Inc.	v.	Carter,	2011	ME	77,	¶	14,	25	A.3d	96.	

         [¶24]	 	 Here,	 the	 litigation	 manager	 claimed	 that	 he	 was	 a	 custodian	 of	

records	 for	 M&T	 Bank,	 but	 he	 did	 not	 provide	 any	 testimony	 demonstrating	

that	he	had	firsthand	knowledge	of	M&T	Bank’s	business	practices.		In	fact,	he	

testified	 that	 he	 had	 never	 spoken	 with	 anyone	 from	 M&T	 Bank	 and	 did	 not	

know	where	M&T	Bank	is	located.		Although	he	testified	that	Bayview	and	M&T	

Bank	 use	 the	 same	 electronic	 servicing	 platform,	 the	 witness	 did	 not	

demonstrate	that	he	was	familiar	with	M&T	Bank’s	regular	business	practices	

for	 creating	 and	 maintaining	 loan	 records.	 	 See	 Carter,	 2011	 ME	 77,	 ¶	 14,	

25	A.3d	 96.	 	 Although	 the	 litigation	 manager	 had	 the	 ability	 to	 observe	 the	

remote	 actions	 taken	 by	 M&T	 Bank	 employees	 while	 those	 employees	 were	
                                                                                                         13	

using	Bayview’s	live	platform,	he	did	not	testify	to	personal	knowledge	of	the	

business	practices	that	occurred	on	site	at	M&T	Bank,	such	as	whether	entries	

into	the	loan	records	through	the	servicing	platform	are	made	 at	or	near	the	

time	 of	 the	 events	 or	 whether	 the	 records	 are	 transmitted	 by	 a	 person	 with	

personal	 knowledge	 of	 the	 events.	 	 See	id.;	 M.R.	 Evid.	 803(6).	 	 Without	

knowledge	of	M&T	Bank’s	business	practices,	Bayview’s	litigation	manager	was	

not	qualified	to	lay	the	foundation	 necessary	to	 admit	the	screenshots	of	the	

loan’s	payment	history,	which	integrated	records	from	both	businesses.6		See	

Gregor,	2015	ME	108,	¶	14	n.11,	122	A.3d	947.	

        [¶25]		Even	if	M&T	Bank	had	laid	a	proper	foundation	for	the	admission	

of	 the	 screenshots,	 the	 conflicting	 evidence	 submitted	 to	 prove	 the	 amount	

owed—Exhibit	E	and	the	testimony	of	the	litigation	manager—was	inadequate	

under	the	circumstances.		See	Greenleaf,	2014	ME	89,	¶¶	18,	24-27,	96	A.3d	700;	

Chase	Home	Fin.	LLC	v.	Higgins,	2009	ME	136,	¶	11,	985	A.2d	508	(providing	




   6		Because	M&T	Bank	was	the	plaintiff—and	Bayview	Loan	Servicing	and	M&T	Bank	maintained	a	

servicer-subservicer	relationship—there	was	nothing	preventing	M&T	Bank	from	calling	a	custodian	
of	its	own	records	or	attempting	to	authenticate	the	exhibit	through	M.R.	Evid.	902(11),	which	may	
have	 satisfied	 the	 requirements	 of	 the	 business	 records	 exception	 that	 are	 missing	 here.	 	 Rule	
902(11)	“makes	it	possible	to	lay	the	foundation	for	domestic	business	records	without	the	need	to	
call	a	live	witness.”		Avis	Rent	A	Car	System,	LLC	v.	Burrill,	2018	ME	81,	¶	17,	---	A.3d	---	(quoting	Field	
&	Murray,	Maine	Evidence	§	902.11	at	554	(6th	ed.	2007)).	
    	
14	

that	the	amount	due	on	a	note	is	an	element	of	proof	to	support	a	judgment	of	

foreclosure).	

        [¶26]	 	 Described	 by	 the	 litigation	 manager	 as	 a	 “packet,”	 Exhibit	E	

consisted	 of	 sixty-one	 unnumbered	 pages	 of	 partially	 redacted	 screenshots.7		

Review	 of	 Exhibit	 E	 indicates	 that	 it	 lacks	 uniformity	 and	 appears	 to	 be	 a	

compilation	of	data	and	reports	from	various	sources.8		It	is	far	from	a	ledger	

sheet	or	other	paper	or	digital	document	demonstrating,	in	one	place,	balances	

due,	dates	and	amounts	of	payments	made,	and	changes	in	balances	due	as	a	




   7	 	 The	 litigation	 manager	 testified	 that	 it	 is	 Bayview’s	 practice	 to	 require	 its	 counsel	 to	 redact	

personal	information	from	exhibits	submitted	to	the	court.	 	When	business	records	are	offered	in	
evidence,	 they	 must	 be	 “in	 the	 same	 form	 as	 when	 maintained	 for	 business	 purposes.”	 	 Field	
&	Murray,	 Maine	 Evidence	 §	 803.6	 at	 488.	 	 In	 LDC	 General	 Contracting	 v.	 LeBlanc,	 we	 stated	 that	
otherwise	 admissible	 business	 records	 were	 rendered	 inadmissible	 where	 amounts	 listed	 in	 the	
records	had	been	highlighted	because	the	highlighting	took	place	long	after	the	events	reflected	in	
the	records,	was	not	performed	in	the	regular	course	of	business,	and	was	not	a	regular	practice	of	
the	 business,	 and	 because	 the	 proponent	 of	 the	 exhibit	 failed	 to	 produce	 the	 underlying	 records	
despite	 repeated	 requests	 by	 the	 opposing	 party.	 	 2006	 ME	 106,	 ¶¶	 15-17,	 907	 A.2d	 802.	 	 As	 in	
LeBlanc,	the	records	here	were	redacted	in	anticipation	of	litigation	and	not	in	the	regular	course	of	
Bayview’s	business,	and	therefore	were	not	admissible	business	records	for	this	reason	alone.		The	
best	practice	is	that,	once	the	admissibility	of	the	unredacted	document	has	been	established,	the	
proponent	should	be	prepared	to	present	to	the	court	a	copy	with	redactions	of	sensitive	personal	
information,	such	as	a	Social	Security	number,	that	should	not	be	publicly	disclosed.		The	unredacted	
copy	can	then	be	impounded	by	the	court,	allowing	the	redacted	copy	to	remain	part	of	the	public	
record.	
   	
   8	 	 For	 example,	 some	 pages	 contained	 “M&T	 Bank”	or	 “Bayview	Loan	 Servicing”	 in	 the	 header,	

whereas	 others	 contained	no	 header	at	all;	some	 pages	appeared	 to	 contain	 raw	data	 entries,	 yet	
others	 appeared	 to	 be	 summaries	 or	 reports;	and	the	 pages	that	 exhibited	 the	 M&T	 Bank	 header	
displayed	a	web	address	at	the	bottom,	possibly	indicating	a	source	external	to	Bayview’s	platform.		
The	 court	 could	 have	 excluded	 Exhibit	 E	 if	 the	 sources	 of	 information	 or	 other	 circumstances	
indicated	a	lack	of	trustworthiness	even	if	it	otherwise	would	have	been	admissible.		See	M.R.	Evid	
803(6)(E);	Adamatic	v.	Progressive	Baking	Co.,	667	A.2d	871,	874-75	(Me.	1995).	
                                                                                         15	

result	of	accumulation	of	interest,	late	payment	fees,	and	other	charges	allowed	

by	the	loan	documents.			

       [¶27]		The	litigation	manager	offered	insufficient	testimony	to	explain	the	

contents	of	Exhibit	E	and	the	process	for	generating	its	contents,	leaving	it	to	

the	court	to	sift	through	numerous	pages	and	large	amounts	of	data,	frequently	

displayed	 using	 abbreviations	 and	 code,	 to	 determine	 whether	 the	 evidence	

supported	the	amount	claimed	in	M&T	Bank’s	proposed	foreclosure	judgment.		

In	effect,	M&T	Bank	gave	the	court,	as	Exhibit	E,	a	large	pile	of	paper,	urged	the	

court	to	sift	through	the	pile,	and	argued	that	the	amount	it	claimed	to	be	due	

could	be	found	somewhere	in	the	pile.	

       [¶28]		Exhibits,	such	as	the	one	offered	here,	should	be	published	to	the	

fact-finder	“in	a	way	that	will	generate	the	most	appreciation	for	the	exhibit	and	

its	 significance.”	 	 Murray,	 Basic	 Trial	 Advocacy	 304	 (1995).	 	 “[T]he	 most	

powerful	means	of	publication	of	an	exhibit	is	with	the	aid	of	a	witness”	who	

has	the	ability	to	point	out	its	features	and	“discuss	its	contents	as	a	part	of	the	

fact	 presentation.”	 	 Id.	 at	 307.	 	 In	 a	 foreclosure	 action,	 the	 party	 seeking	 a	

judgment	of	foreclosure	should	present	testimony	and	documentary	evidence	

establishing,	with	specificity,	how	that	party	calculated	the	total	amount	owed	

on	 the	 note,	 which	 in	 most	 cases	 will	 require	 a	 demonstration	 of	 the	 loan	
16	

payment	history,	an	itemized	list	of	other	charged	amounts,	and	an	indication	

of	changes	in	the	sums	due	on	the	loan.	

	     [¶29]		Regarding	the	loan	payment	history,	a	party	seeking	a	judgment	of	

foreclosure	should	submit	evidence	identifying	the	following	information:	the	

original	amount	of	the	loan;	the	date	the	debt	was	incurred;	the	schedule	and	

due	dates	for	payments;	the	dates	and	amounts	of	each	payment,	including	any	

payments	made	after	default;	the	dates	and	amounts	of	each	charge	assessed	

(interest,	escrow	payments,	costs,	fees,	and	other	charges);	the	balance	due	on	

the	note	after	each	payment	and	charge	assessed;	the	date	of	the	last	payment	

before	 default;	 the	 total	 amount	 paid	 by	 the	 mortgagor;	 and,	 if	 the	 loan	 was	

serviced	by	more	than	one	loan	servicer,	the	time	during	which	each	servicer	

was	 responsible	 for	 collecting	 and	 recording	 loan	 payments	 and	 charges.		

Preferably,	this	information	should	be	presented	in	chronological	order.			

      [¶30]	 	 The	 evidence	 must	 be	 presented	 through	 the	 testimony	 of	 a	

witness,	 or	 a	 witness	 supported	 by	 an	 affidavit	 that	 qualifies	 for	 admission	

under	 M.R.	 Evid.	 803(6),	 unless	 the	 evidence	 is	 admitted	 by	 stipulation	 or	

through	an	admission	obtained	during	the	discovery	process	pursuant	to	M.R.	

Civ.	P.	36.		In	this	case,	although	the	litigation	manager	testified	to	some	of	these	
                                                                                                              17	

items,	 primarily	 during	 cross-examination,	 ascertaining	 this	 information	 was	

primarily	left	to	the	court.9			

	       [¶31]		As	the	party	bearing	the	burden	of	proof,	it	was	M&T	Bank’s	duty	

to	prove	the	amount	owed	by	presenting	evidence	of	the	information	described	

above	 in	 a	 form	 that	 was	 both	 accessible	 and	 admissible.	 	 See	 Higgins,	

2009	ME	136,	¶	11,	985	A.2d	508;	see	also	Warner	v.	Warner,	2002	ME	156,	¶	21	

n.10,	807	A.2d	607	(providing	that,	when	a	party	fails	to	adequately	organize	

the	presentation	of	evidence	of	complicated	and	lengthy	financial	transactions,	

the	court	may	require	the	party	to	submit	illustrative	aids,	summary	exhibits,	

and	other	testimonial	aids	so	as	to	make	the	interrogation	and	presentation	of	

evidence	 effective	 for	 the	 ascertainment	 of	 the	 truth).10	 	 Because	 M&T	 Bank	

failed	to	meet	its	burden,	we	vacate	the	judgment.	


    9		Because	it	appears	that	the	litigation	manager	did	not	closely	inspect	Exhibit	E	at	trial,	the	record	

is	unclear	whether	the	litigation	manager’s	testimony	regarding	the	payment	and	servicing	history	
was	 supported	 by	 the	 documentary	 evidence.	 	 For	 example,	 the	 litigation	 manager	 testified	 that	
Plaisted’s	 last	payment	 was	 made	to	 Bayview	 on	 November	 4,	 2013.	 	 No	 evidence	 was	presented	
regarding	when	Bayview	transferred	loan	servicing	responsibilities	to	M&T	Bank,	but	the	litigation	
manager	testified	that	Plaisted	went	into	default	before	M&T	Bank	took	over	servicing	the	loan	and	
that	Plaisted	made	no	payments	to	M&T	Bank.		The	loan	servicing	history	buried	in	Exhibit	E	appears	
to	demonstrate,	however,	that	Bayview	ceased	servicing	the	loan	on	March	1,	2011,	and	that	M&T	
Bank	began	servicing	at	that	time,	receiving	payments	for	more	than	two-and-a-half	years.		Because	
of	 the	 limited	 testimony	 regarding	 the	 contents	 of	 Exhibit	 E,	 the	 trial	 court	 was	 deprived	 of	 the	
opportunity	 to	 weigh	 this	 potentially	 conflicting	 or	 inconsistent	 evidence.	 	 See	 State	 v.	 True,	
2017	ME	2,	¶	19,	153	A.3d	106	(stating	that	“the	weighing	of	conflicting	or	inconsistent	evidence	.	.	.	
falls	solidly	within	the	province	of	the	.	.	.	fact-finder”).	
    	
    10		Caution	must	be	exercised	when	using	computerized	business	records	pursuant	to	M.R.	Evid.	

616	and	1006.		See,	e.g.,	LeBlanc,	2006	ME	106,	¶¶	10-13,	907	A.2d	802;	United	Air	Lines,	Inc.	v.	Hewins	
Travel	 Consultants,	 Inc.,	 622	 A.2d	 1163,	 1167-68	 (Me.	 1993);	 Cives	 Corp.	 v.	 Callier	 Steel	 Pipe	
18	

         The	entry	is:	

                            Judgment	 vacated.	 	 Remanded	 for	 entry	 of	 a	
                            judgment	in	favor	of	Lawrence	F.	Plaisted.	
	
	      	     	     	     	      	
	
Patrick	E.	Hunt,	Esq.,	Patrick	E.	Hunt,	P.A.,	Island	Falls,	for	appellant	Lawrence	
F.	Plaisted	
	
Andrew	J.	Schaefer,	Esq.,	Bendett	&	McHugh,	P.C.,	Portland,	for	appellee	M&T	
Bank	
	
	
Bangor	District	Court	docket	number	RE-2016-71	
FOR	CLERK	REFERENCE	ONLY	




&	Tube,	Inc.,	 482	 A.2d	 852,	 859	 (Me.	 1984);	 Ne.	Bank	 &	 Tr.	 Co.	 v.	 Soley,	 481	 A.2d	 1123,	 1127-28	
(Me.	1984);	see	also	Field	&	Murray,	Maine	Evidence	§§	616,	803(6)(a),	1006;	Ashley	S.	Lipson,	Art	of	
Advocacy:	 Demonstrative	 Evidence	 §§	 16.01-.05,	 -.08	 (2018),	 LexisNexis;	 see	 generally	 16	 M.R.S.	
§	456-A	(2017).	
