MAINE	SUPREME	JUDICIAL	COURT	                                       Reporter	of	Decisions	
Decision:	    2017	ME	32	
Docket:	      And-16-139	
Submitted	 	
  On	Briefs:	 November	29,	2016	
Decided:	     February	28,	2017	
	
Panel:	       ALEXANDER,	MEAD,	JABAR,	HJELM,	and	HUMPHREY,	JJ.	
	
	
                           JPMORGAN	CHASE	BANK,	N.A.		
                                        	
                                      v.	
                                        	
                            TERRANCE	B.	LOWELL	et	al.	
	
HJELM,	J.	

      [¶1]		Terrance	B.	Lowell	appeals	from	a	judgment	of	foreclosure	in	favor	

of	JPMorgan	Chase	Bank,	N.A.,	entered	in	the	District	Court	(Lewiston,	Dow,	J.)	

after	a	bench	trial.		Lowell	argues	that	the	court	erred	or	abused	its	discretion	

by	admitting	certain	documents	pursuant	to	the	business	records	exception	to	

the	 hearsay	 rule,	 see	 M.R.	 Evid.	 803(6),	 and	 by	 finding	 that	 the	 notice	 of	

default	issued	by	JPMorgan	complied	with	statutory	requirements.		Although	

the	court	properly	admitted	the	challenged	documents	in	evidence,	we	agree	

that	 the	 notice	 of	 default	 was	 defective.	 	 We	 therefore	 vacate	 the	 judgment	

and	remand	for	entry	of	judgment	for	Lowell.	
2	

                                           I.		BACKGROUND	

          [¶2]		In	March	2015,	JPMorgan	filed	a	complaint	against	Lowell	seeking	

foreclosure	on	residential	property	located	in	Auburn.1		JPMorgan	alleged	that	

Lowell	had	defaulted	by	failing	to	make	payments	due	on	a	promissory	note	

executed	 in	 favor	 of	 Wachovia	 Mortgage	 Corporation;	 that	 the	 note	 was	

secured	by	a	mortgage	in	favor	of	Mortgage	Electronic	Registration	Systems,	

Inc.,	(MERS),	as	nominee	for	Wachovia;	and	that,	after	several	transactions,	all	

rights	 created	 by	 the	 instruments	 had	 been	 assigned	 to	 JPMorgan.2	 	 Lowell	

filed	an	answer,	which,	as	later	amended,	disputed	many	of	the	allegations	in	

the	complaint	and	asserted	several	affirmative	defenses.			

          [¶3]	 	 The	 matter	 proceeded	 to	 trial	 in	 March	 2016.	 	 To	 lay	 the	

foundation	 necessary	 for	 the	 admission	 of	 various	 documents	 as	 business	

records,	see	M.R.	Evid.	803(6),	JPMorgan	presented	the	testimony	of	employee	

Frank	Dean,	who	had	worked	for	JPMorgan	for	five	years	and,	at	the	time	of	

    1	 	 The	 complaint	 named	 CitiBank	 (South	 Dakota),	 N.A.,	 as	 a	 party-in-interest	 because	 Citibank	

allegedly	holds	a	junior	interest	in	the	mortgaged	property.		See	14	M.R.S.	§	6321	(2014),	amended	
by	 P.L.	 2015,	 ch.	 229,	 §	 1	 (effective	 October	 15,	 2015)	 (codified	 at	 14	 M.R.S.	 §	 6321	 (2016)).		
CitiBank	did	not	participate	in	either	the	trial	court	proceedings	or	this	appeal.	

     2	
      	 Among	 the	 records	 admitted	 in	 evidence	 at	 trial	 were	 copies	 of	 a	 2012	 assignment	 to	
JPMorgan	from	MERS,	as	nominee	for	Wachovia;	and	a	separate	2014	quitclaim	assignment	of	the	
mortgage	to	JPMorgan	from	Wells	Fargo,	which	had	merged	with	Wachovia	in	2011.		As	a	result	of	
the	 quitclaim	 assignment,	 it	 appears	 that	 JPMorgan’s	 standing	 to	 pursue	 this	 foreclosure	 action	 is	
not	at	issue,	and	Lowell	does	not	contend	otherwise.		See	Bank	of	Am.,	N.A.	v.	Greenleaf,	2014	ME	89,	
¶¶	 9,	 17,	 96	 A.3d	 700	 (concluding	 that	 a	 bank	 lacked	 standing	 to	 foreclose	 on	 the	 defendant’s	
property	when	it	failed	to	prove	that	it	owned	the	mortgage	that	secured	the	defendant’s	loan).					
                                                                                        3	

trial,	 was	 a	 “mortgage	 banking	 research	 officer.”	 	 Dean	 testified	 that	 his	

responsibilities	 in	 that	 position	 included	 reviewing	 “business	 records	

pertaining	to	residential	mortgage	loans,”	and	that	in	preparation	for	trial	he	

had	 “reviewed	 the	 electronic	 business	 records	 pertaining	 to	 [Lowell’s]	

mortgage	file,”	including	the	note,	mortgage,	assignments	of	the	mortgage,	and	

payment	 history.	 	 He	 further	 testified	 that	 he	 previously	 worked	 as	 a	 “bank	

branch	loan	officer”	for	JPMorgan	and	had	been	“responsible	for	meeting	with	

bank	 customers,	 .	 .	 .	 developing	 residential	 mortgage	 applications,	

.	.	.	processing	 mortgage	 loans,	 closing	 mortgage	 loans,	 and	 .	 .	 .	 handling	

customer	 service	 issues	 .	 .	 .	 such	 as	 payment	 applications.”	 	 He	 stated	 that	

while	 assisting	 customers	 with	 loan	 payments	 he	 observed	 “how	 the	 system	

was	accessed”	by	bank	tellers	at	the	time	of	payment,	“where	the	information	

was	entered,	and	how	it	was	saved,	and	became	a	record.”		He	explained	that,	

based	 on	 this	 cumulative	 experience,	 he	 was	 familiar	 with	 how	 JPMorgan’s	

business	 records	 were	 created,	 checked	 for	 accuracy,	 and	 accessed,	 and	 he	

confirmed	 that	 JPMorgan	 followed	 all	 procedures	 for	 maintaining	 the	

accuracy	of	the	documents	at	issue	in	this	case.			

      [¶4]	 	 Based	 on	 Dean’s	 foundational	 testimony,	 JPMorgan	 introduced	 a	

number	 of	 documents	 in	 evidence,	 including	 the	 note	 and	 mortgage;	 the	
4	

notice	 of	 default	 and	 right	 to	 cure	 issued	 to	 Lowell	 by	 JPMorgan	 in	

January	2015;	 and	 Exhibit	 E,	 which	 consists	 of	 “screen	 prints”	 from	

JPMorgan’s	computer	databases	that	show	the	charges	and	payments	made	on	

Lowell’s	 loan	 between	 June	 2006—which,	 Dean	 testified,	 is	 when	 JPMorgan	

acquired	the	note—and	late	February	2016.		Dean	stated	that	according	to	the	

computer	 printouts,	 Lowell	 had	 not	 made	 any	 payments	 on	 his	 loan	 since	

September	1,	2012.		

          [¶5]	 	 During	 Dean’s	 testimony,	 Lowell	 made	 a	 general	 objection	 to	 the	

admission	 of	 JPMorgan’s	 records	 pursuant	 to	 Rule	 803(6).	 	 The	 court	

overruled	 the	 objection,	 rejecting	 Lowell’s	 argument	 that	 JPMorgan	 was	

required	 to	 establish	 that	 Dean	 had	 knowledge	 about	 the	 creation	 of	 the	

records	 particular	 to	 this	 case.	 	 Lowell	 later	 objected	 specifically	 to	 the	

admission	 of	 some	 portions	 of	 Exhibit	 E	 that	 cover	 activity	 while	 JPMorgan	

owned	the	note,	based	on	his	assertion	that	Dean	lacked	personal	knowledge	

about	how	various	charges	in	the	printouts	were	calculated	and	entered,	and	

the	court	also	overruled	that	objection.3	




     3	 	 Exhibit	 E	 also	 includes	 several	 pages	 that,	 Dean	 testified,	 JPMorgan	 received	 from	 Wachovia	

and	that	show	activity	on	Lowell’s	account	for	the	period	between	July	2004	and	June	2006.		Even	
to	the	extent	that	Lowell’s	objection	encompassed	that	aspect	of	Exhibit	E,	he	does	not	challenge	the	
admission	of	those	pages	on	appeal,	and	they	are	not	material	to	our	analysis,	see	infra	n.6.	
                                                                                                                     5	

         [¶6]	 	 Following	 the	 trial,	 on	 March	 16,	 2016,	 the	 court	 entered	 a	

judgment	 of	 foreclosure	 in	 favor	 of	 JPMorgan,	 finding	 that	 Lowell	 owed	

$125,000.33	on	the	note	and	mortgage,	plus	attorney	fees	and	disbursements.		

Lowell	timely	appealed.		See	14	M.R.S.	§	1901	(2016);	M.R.	App.	P.	2.			

                                               II.		DISCUSSION	

	        [¶7]	 	 To	 be	 entitled	 to	 a	 judgment	 of	 foreclosure,	 JPMorgan	 was	

required	to	prove,	among	other	things,	“the	amount	due	on	the	mortgage	note,	

including	any	reasonable	attorney	fees	and	court	costs,”	and	service	on	Lowell	

of	 a	 notice	 of	 default	 and	 right	 to	 cure	 that	 complied	 with	 statutory	

requirements.		Bank	of	Am.,	N.A.	v.	Greenleaf,	2014	ME	89,	¶	18,	96	A.3d	700;	

see	 also	 14	 M.R.S.	 §§	 6111(1-A),	 6322	 (2014).4	 	 Lowell	 argues	 that	 the	 court	

erred	 by	 admitting	 JPMorgan’s	 business	 records	 showing	 the	 amount	 due	

pursuant	 to	 the	 secured	 obligation,	 and	 that	 the	 notice	 of	 default	 was	

statutorily	defective.		We	address	these	issues	in	turn.		

A.	      Evidence	of	Amount	Due	

	        [¶8]	 	 As	 evidence	 of	 the	 amount	 due,	 JPMorgan	 introduced	 Exhibit	 E,	

which	 consists	 of	 computer	 printouts	 from	 JPMorgan’s	 databases	 showing	

    4		Title	14	M.R.S.	§	6111(1-A)	has	been	amended	since	January	2015,	when	JPMorgan	issued	the	

notice	 of	 default.	 	 See	 P.L.	 2015,	 ch.	 36,	 §§	 1-2	 (effective	 October	 15,	 2015)	 (codified	 at	 14	 M.R.S.	
§	6111	(2016)).		All	references	to	section	6111	are	to	the	version	of	the	statute	in	effect	when	the	
notice	of	default	was	issued.	
6	

charges	 and	 payments	 on	 Lowell’s	 loan	 between	 June	 2006	 and	 late	

February	2016,	a	few	weeks	before	trial,	during	which	time	JPMorgan	owned	

the	 note.	 	 Although	 Lowell’s	 brief	 does	 not	 directly	 cite	 Rule	 803(6),	 he	

appears	 to	 argue	 that	 the	 court	 erred	 or	 abused	 its	 discretion	 by	 admitting	

Exhibit	E	as	a	business	record.		See	Am.	Express	Bank	FSB	v.	Deering,	2016	ME	

117,	 ¶	 12,	 145	 A.3d	 551	 (“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.”	 (quotation	 marks	

omitted)).	 	 Lowell	 further	 asserts	 that	 the	 court	 erred	 by	 determining	 that	

Exhibit	E,	together	with	Dean’s	testimony,	was	sufficient	to	prove	the	amount	

due	 on	 the	 loan—a	 matter	 we	 review	 for	 clear	 error.	 	 See	 Wells	 Fargo	 Bank,	

N.A.	v.	Burek,	2013	ME	87,	¶	17,	81	A.3d	330.	

      [¶9]		As	we	have	previously	explained,	“[b]usiness	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.		

Evidence	 qualifies	 for	 the	 business	 records	 exception	 if	 the	 necessary	

foundation	is	established	by	a	witness	who	is	a	“custodian	or	another	qualified	
                                                                                                        7	

witness.”	 	 M.R.	 Evid.	 803(6)(D).5	 	 “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.”		Roberge,	2016	ME	

118,	¶	10,	144	A.3d	1178	(quotation	marks	omitted).	

      [¶10]	 	 Here,	 Dean	 testified	 in	 detail	 about	 JPMorgan’s	 procedures	 for	

producing	 and	 retaining	 loan	 payment	 records,	 and	 he	 described	 his	 direct	

experience	interacting	with	the	departments	that	entered	loan	payments	into	

the	system.		Based	on	this	testimony,	the	court	did	not	err	by	determining	that	

Dean	was	qualified	to	establish	the	foundation	for	the	admission	of	Exhibit	E	

and	 that	 the	 testimony	 established	 the	 foundational	 requirements	 for	 the	


  5		Maine	Rule	of	Evidence	803(6)	provides	in	full:	


      (6)	    Records	 of	 a	 regularly	 conducted	 activity.	 	 A	 record	 of	 an	 act,	 event,	
              condition,	opinion,	or	diagnosis	[is	not	excluded	by	the	rule	against	hearsay]	
              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.	
8	

admission	of	that	exhibit.		Id.	¶	11	(stating	that	“[o]nce	the	qualifications	of	the	

witness	are	established,	the	moving	party	must	lay	the	necessary	foundation	

for	the	admission	of	the	documents	as	business	records”).		Further,	the	court	

did	 not	 err	 by	 determining,	 based	 in	 part	 on	 that	 exhibit,	 that	 JPMorgan	 had	

satisfied	its	burden	to	prove	the	amount	due	on	the	loan.6	

          [¶11]	 	 On	 appeal,	 Lowell	 also	 makes	 a	 brief	 reference	 to	 an	 argument	

that	 was	 developed	 more	 extensively	 at	 trial,	 namely,	 that	 Dean	 was	 not	

qualified	to	establish	the	foundation	for	the	admission	of	Exhibit	E	because	he	

lacked	firsthand	information	about	the	specific	transactions	at	issue	here.		To	

the	extent	that	it	is	preserved,	Lowell’s	challenge	to	the	admission	of	Exhibit	E	

based	 on	 Dean’s	 lack	 of	 personal	 knowledge	 is	 not	 persuasive.	 	 If	 Dean	 had	

personal	 knowledge	 about	 the	 facts	 recorded	 in	 Exhibit	 E,	 JPMorgan	 would	

not	have	needed	to	invoke	Rule	803(6)	because	Dean	could	have	testified	 to	

the	 facts	 directly	 and	 without	 resort	 to	 documentation.	 	 Instead,	 the	 very	

purpose	 of	 Rule	 803(6)	 is	 to	 allow	 the	 proponent	 to	 prove	 the	 contents	 of	


     6	
     	 Additionally,	 we	 are	 unpersuaded	 by	 Lowell’s	 argument	 that	 JPMorgan	 was	 required	 to	
present	evidence	of	Wells	Fargo’s	business	records	to	prove	the	charges	accruing	pursuant	to	the	
mortgage	between	Lowell’s	default	in	September	2012	and	the	November	2014	assignment	of	the	
mortgage	 to	 JPMorgan	 from	 Wells	 Fargo.	 	 Exhibit	 E	 encompasses	 records	 that	 date	 back	 to	
June	2006,	which,	Dean	testified,	is	when	the	note	was	first	deposited	in	JPMorgan’s	vault.		Those	
records	show	charges	and	payments	related	to	both	the	note	and	the	mortgage.		Accordingly,	all	of	
the	 transactions	 relevant	 to	 determining	 the	 amount	 due	 on	 the	 loan	 were	 maintained	 in	
JPMorgan’s	records,	not	Wells	Fargo’s.	
                                                                                         9	

properly	 established	 business	 records	 through	 those	 records	 themselves,	

without	 the	 need	 for	 the	 foundation	 witness	 to	 have	 personal	 knowledge	 of	

the	 events	 or	 transactions	 described	 in	 those	 records.	 	 See	 Beneficial	 Maine	

Inc.	 v.	 Carter,	 2011	 ME	 77,	 ¶	 12,	 25	 A.3d	 96	 (stating	 that	 the	 purpose	 of	

Rule	803(6)	 is	 “to	 allow	 the	 consideration	 of	 a	 business	 record,	 without	

requiring	 firsthand	 testimony	 regarding	 the	 recorded	 facts,	 by	 supplying	 a	

witness	 whose	 knowledge	 of	 [the	 business’s	 recordkeeping]	 practices	 .	 .	 .	 is	

sufficient	to	ensure	the	reliability	and	trustworthiness	of	the	record”);	see	also	

State	v.	Abdi,	2015	ME	23,	¶	17,	112	A.3d	360	(“The	fact	that	the	witness	did	

not	prepare	or	supervise	the	preparation	of	the	record	does	not	preclude	the	

witness	from	providing	the	foundation	for	admissibility.”).		The	court	did	not	

err	in	admitting	Exhibit	E	over	this	objection.	

B.	   Notice	of	Default	and	Right	to	Cure	

	     [¶12]		Lowell	next	argues	that	the	court	erred	by	finding	that	the	notice	

of	 default	 issued	 by	 JPMorgan	 strictly	 complies	 with	 the	 requirements	

established	 in	 14	 M.R.S.	 §	 6111.	 	 “We	 review	 a	 trial	 court’s	 factual	 findings	

underlying	a	judgment	of	foreclosure	for	clear	error	.	.	.	.”		Wells	Fargo	Bank,	

N.A.,	2013	ME	87,	¶	17,	81	A.3d	330.	
10	

       [¶13]		By	statute,	a	mortgagee	may	not	accelerate	or	enforce	a	mortgage	

until	 at	 least	 thirty-five	 days	 have	 passed	 after	 giving	 written	 notice	 of	 the	

mortgagor’s	right	to	cure	the	default.		14	M.R.S.	§	6111(1).		The	written	notice	

must	 include,	 among	 other	 things,	 “[a]n	 itemization	 of	 all	 past	 due	 amounts	

causing	the	loan	to	be	in	default,”	and	“[a]n	itemization	of	any	other	charges	

that	 must	 be	 paid	 in	 order	 to	 cure	 the	 default.”	 	 Id.	 §	 6111(1-A)(B)-(C).	 	 We	

have	previously	explained	that	section	6111	“freezes”	any	amounts	that	may	

come	 due	 during	 the	 cure	 period,	 and	 that	 “the	 amount	 due	 as	 stated	 in	 the	

notice	of	default	is	the	precise	amount	that	the	mortgagor	has	thirty-five	days	

to	 pay	 in	 order	 to	 cure	 the	 default”	 and	 is	 not	 “open	 to	 any	 further	 accrual	

during	 [the	 cure]	 period.”	 	 Greenleaf,	 2014	 ME	 89,	 ¶¶	 29,	 31,	 96	 A.3d	 700	

(emphasis	 added)	 (holding	 that	 a	 notice	 of	 default	 that	 instructed	 the	

mortgagor	to	contact	the	loan	servicer	“to	obtain	an	up	to	date	figure	before	

sending	payment”	did	not	comply	with	section	6111(1-A)).		This	requirement	

is	strictly	enforced.		See	id.	¶¶	18,	31.		

       [¶14]	 	 Here,	 the	 court	 made	 a	 general	 finding	 that	 a	 “proper	 notice	 of	

default	was	sent”	to	Lowell.		The	notice	of	default	states	as	follows:	

       2.	    As	 of	 01/16/2015,	 total	 monthly	 payments	 (including	
              principal,	 interest,	 and	 escrow	 if	 applicable),	 late	 fees,	
              insufficient	 funds	 (NSF)	 fees,	 and	 other	 fees	 and	 advances	
              due	 under	 the	 terms	 of	 your	 loan	 documents	 in	 the	 total	
                                                                                11	

      amount	 of	 $27,879.86	 are	 past	 due.	 	 This	 past-due	 amount	
      is	 itemized	 below.	 	 If	 applicable,	 your	 account	 may	 have	
      additional	escrow	amounts	that	have	been	paid	out	and	
      are	due	on	the	Loan.		If	you	have	any	questions	about	the	
      amounts	 detailed	 below,	 please	 contact	 us	 as	 soon	 as	
      possible	at	800-848-9380.	
	
             Total	Monthly	Payments	            	       $25,612.86	
             Late	Fees	 	          	       	    	       $0.00	
             NSF	Fees	 	           	       	    	       $0.00	
             Other	Fees*		         	       	    	       $0.00	
             Advances*	 	          	       	    	       $2,267.00	
             	
             Amount	Held	in	Suspense	           	       $0.00	
             	
             *Other	 Fees	 and	 Advances	 include	 those	 amounts	
             assessed	 in	 accordance	 with	 your	 loan	 documents,	
             and/or	 permitted	 by	 applicable	 law,	 or	 that	 were	
             authorized	for	services	rendered.		If	you	need	additional	
             information	 regarding	 any	 of	 these	 amounts,	 please	
             contact	us	at	the	number	provided	below.	
             	
      You	may	be	responsible	for	paying	late	fees,	inspection	fees,	
      and	 Broker’s	 Price	 Opinion	 (BPO)	 fees	 that	 become	 due	
      from	 the	 date	 of	 this	 letter	 through	 the	 expiration	 date	 set	
      forth	in	Paragraph	3	below.		If	your	next	scheduled	payment	
      is	made	after	its	due	date,	you	may	incur	an	additional	late	
      fee	 of	 36.48.	 	 However,	 this	 amount	 will	 not	 change	 the	
      amount	needed	to	cure	the	default	pursuant	to	this	letter.	
      	
3.	   You	have	the	right	to	cure	the	default.		Action	required	to	
      cure	 the	 default:	 You	 must	 pay	 the	 Total	 Monthly	
      Payments	listed	in	Paragraph	2	within	35	days	from	the	
      date	 you	 are	 given	 this	 notice	 in	 order	 to	 cure	 this	
      default.		All	late	fees,	NSF	fees,	and	other	fees	and	advances	
      are	still	valid	and	will	need	to	be	repaid	under	the	terms	of	
      your	loan	documents.	.	.	.	
	
12	

(Boldface	added.)	

      [¶15]	 	 Lowell	 argues	 that	 the	 notice	 does	 not	 strictly	 comply	 with	 the	

requirement	that	it	include	“[a]n	itemization	of	any	other	charges	that	must	be	

paid	in	order	to	cure	the	default,”	14	M.R.S.	§	6111(1-A)(C),	because	the	notice	

does	not	state	a	sum	certain	that	the	borrower	must	pay	in	order	to	cure	the	

default.		We	agree	for	the	following	two	reasons.			

      [¶16]	 	 First,	 Paragraph	 3	 of	 the	 notice	 states	 that	 to	 cure	 the	 default,	

Lowell	 “must	 pay	 the	 [t]otal	 [m]onthly	 [p]ayments	 listed	 in	 Paragraph	 2.”		

Paragraph	 2	 lists—among	 other	 itemized	 past-due	 amounts—“[t]otal	

[m]onthly	 [p]ayments”	 in	 the	 amount	 of	 $25,612.86.	 	 Earlier	 in	 Paragraph	 2,	

however,	 the	 notice	 defines	 the	 phrase	 “total	 monthly	 payments”	 to	 mean	

“principal,	interest,	and	escrow	if	applicable.”		(Emphasis	added.)		Paragraph	2	

goes	 on	 to	 state,	 “If	 applicable,	 your	 account	 may	 have	 additional	 escrow	

amounts	that	have	been	paid	out	and	are	due	on	the	Loan.”		(Emphasis	added.)			

      [¶17]	 	 Pursuant	 to	 the	 mortgage,	 Lowell	 was	 required	 to	 include	 with	

each	 monthly	 payment	 an	 amount	 for	 “escrow	 items”	 including	 “taxes	 and	

special	assessments,”	“leasehold	payments	or	grounds	rents,”	and	“premiums	

for	insurance.”		The	escrow	component	of	the	term	“total	monthly	payments”	

as	defined	in	the	notice	therefore	specifically	applies	to	Lowell’s	account.			
                                                                                                            13	

        [¶18]		The	computer	printouts	in	Exhibit	E	show	that	beginning	in	2012,	

when	Lowell	stopped	making	payments,	JPMorgan	paid	expenses	that	would	

have	 been	 covered	 by	 the	 escrow	 portion	 of	 Lowell’s	 monthly	 payments.		

Because	there	were	escrow	amounts	that	had	come	due	and	which	Lowell	was	

required	to	pay	as	of	the	date	when	JPMorgan	issued	the	notice	of	default,	the	

notice	meant	that	for	Lowell	to	cure	the	default,	he	would	be	required	to	pay	

the	 “total	 monthly	 payments”	 due,	 which—as	 the	 notice	 itself	 defines	 that	

term—would	include	any	additional	escrow	amounts	that	are	not	itemized	in	

the	 notice.7	 	 The	 notice	 therefore	 does	 not	 strictly	 comply	 with	 the	

requirement	that	it	include	“an	itemization	of	any	other	charges	that	must	be	

paid	in	order	to	cure	the	default.”		14	M.R.S.	§	6111(1-A)(C)	(emphasis	added).		

Rather,	 to	 determine	 whether	 any	 additional	 escrow	 amounts	 were	 due,	

Lowell	 would	 have	 had	 no	 choice	 but	 to	 contact	 JPMorgan,	 as	 the	 notice	

explicitly	invited	him	to	do.		Accordingly,	regardless	of	whether	there	were	in	

fact	additional	amounts	due,	the	notice	is	not	sufficient	because	it	fails	to	state	


   7		We	are	not	persuaded	by	Lowell’s	related	argument	that	the	notice	of	default	and	right	to	cure	

is	defective	because	it	refers	to	other	amounts	that	Lowell	may	be	obligated	to	pay	pursuant	to	the	
note	or	mortgage,	including	late	fees,	inspection	fees,	“[b]roker’s	[p]rice	[o]pinion”	fees,	and	other	
unspecified	 charges.	 	 The	 notice	 makes	 clear	 that	 the	 amount	 that	 Lowell	 was	 required	 to	 pay	 to	
avoid	 foreclosure	 did	 not	 include	 those	 ancillary	 charges—unlike	 escrow	 charges,	 which	 would	
change	 the	 amount	 of	 the	 payment	 needed	 to	 cure	 the	 default.	 	 Any	 uncertainty	 regarding	 those	
ancillary	charges	therefore	did	not	take	the	notice	out	of	compliance	with	section	6111(1-A)(C)	as	
interpreted	in	Greenleaf.	
14	

the	“precise	amount	that	the	mortgagor	has	thirty-five	days	to	pay	in	order	to	

cure	 the	 default,”	 Greenleaf,	 2014	 ME	 89,	 ¶	31,	 96	 A.3d	 700,	 and,	 at	 best	 for	

JPMorgan,	 requires	 Lowell	 to	 obtain	 information	 from	 other	 sources	 to	

determine	the	amount	he	was	required	to	pay	to	cure	the	default.		

       [¶19]	 	 Second,	 the	 itemized	 list	 of	 past-due	 amounts	 in	 Paragraph	 2	

includes	an	entry	for	“[a]dvances”	of	$2,267.		The	notice	makes	clear	that	the	

sum	 listed	 for	 “[a]dvances”	 is	 not	 a	 component	 of	 the	 $25,612.86	 figure	 for	

“[t]otal	[m]onthly	[p]ayments.”		See	id.		During	his	testimony,	however,	Dean	

agreed	 that	 it	 is	 “possible”	 that	 the	 “[a]dvances”	 listed	 in	 the	 notice	 did	

encompass	 charges	 for	 taxes	 and	 insurance,	 which	 are	 identified	 as	 “escrow	

items”	 in	 Lowell’s	 mortgage.	 	 If	 the	 “possibility”	 acknowledged	 by	 Dean	 is	

true—i.e.,	that	all	or	part	of	the	past-due	“[a]dvances”	are	for	escrow	items—

then	Lowell	would	have	been	required	to	pay	some	or	all	of	those	advances	in	

addition	 to	 the	 “[t]otal	 [m]onthly	 [p]ayments”	 of	 $25,612.86	 to	 cure	 the	

default.	

       [¶20]		Indeed,	JPMorgan	itself	appears	to	be	uncertain	whether	Lowell	

was	 required	 to	 pay	 the	 past-due	 “[a]dvances”	 to	 cure	 the	 default.	 	 In	

JPMorgan’s	closing	argument	at	trial,	it	asserted,	“The	notice	of	default	in	this	

case	is	perfectly	clear.		It	complies	with	the	statute;	it	identifies	exactly	what’s	
                                                                                    15	

required	to	cure	the	default,	$27,879.86”	(emphasis	added)—that	is,	the	sum	

of	the	“[t]otal	[m]onthly	[p]ayments”	and	“[a]dvances”	itemized	in	the	notice.		

In	 its	 brief	 on	 appeal,	 however,	 JPMorgan	 insists	 that	 “[t]he	 Notice	 plainly	

informed	 Lowell—or	 any	 other	 reader—that	 the	 Total	 Monthly	 Payments	

($25,612.86)	 was	 the	 amount	 required	 to	 cure	 the	 default.”	 	 (Emphasis	

added.)	 	 That	 JPMorgan	 itself	 has	 not	 maintained	 a	 consistent	 interpretation	

of	the	notice	is	a	further	indication	that	the	notice	fails	to	precisely	state	the	

amount	required	to	cure	the	default.	

      [¶21]	 	 For	 these	 reasons,	 the	 notice	 fails	 to	 specify	 the	 sum	 certain	

required	 to	 cure	 the	 default.	 	 The	 court	 therefore	 erred	 by	 finding	 that	

JPMorgan	 satisfied	 its	 burden	 to	 prove	 that	the	 notice	 strictly	 complied	 with	

the	 requirement	 established	 in	 section	 6111(1-A)(C),	 which	 is	 a	 required	

element	of	foreclosure.		We	vacate	the	judgment	on	that	basis	and	remand	for	

entry	of	judgment	for	Lowell.	

      The	entry	is:	

                    Judgment	 vacated.	 	 Remanded	 to	 the	 District	
                    Court	for	entry	of	judgment	for	Lowell.		
	
	     	      	      	     	      	
16	

Joshua	 Klein-Golden,	 Esq.,	 Clifford	 &	 Golden,	 PA,	 Lisbon	 Falls,	 for	 appellant	
Terrance	B.	Lowell	
	
Adam	 J.	 Shub,	 Esq.,	 Preti	 Flaherty	 Beliveau	 &	 Pachios,	 LLP,	 Portland,	 for	
appellee	JPMorgan	Chase	Bank,	N.A.	
	
	
Lewiston	District	Court	docket	number	RE-2015-11	
FOR	CLERK	REFERENCE	ONLY	
	
	
	
	
