Wilmington Trust, National Association, as Trustee for MFRA Trust 2014-2 v. Lisa Berry

Summary

The Maine Supreme Judicial Court affirmed a judgment for Lisa Berry in a foreclosure action brought by Wilmington Trust, National Association. The court held that the trial court properly excluded loan payment records as untrustworthy under the business-records exception and properly found that Wilmington failed to prove Berry received the required notice of default and right to cure. The court also upheld an award of attorney fees to Berry because the mortgagee did not prevail.

Holdings

1. The trial court properly excluded Wilmington’s loan-payment records because, although Wilmington supplied a qualified witness and laid an initial foundation, the unexplained reference to Marix Servicing and the witness’s lack of knowledge about Marix supported a finding that the records were untrustworthy under M.R. Evid. 803(6)(E).
2. The trial court did not clearly err in finding that Wilmington failed to prove Berry received the notice of default and right to cure because Wilmington did not provide a certificate of mailing constituting conclusive proof of receipt, and the court credited Berry’s testimony that she did not receive the notice.
3. The trial court did not abuse its discretion by awarding Berry attorney fees because § 6101 authorizes an award when the mortgagee does not prevail, independently of the alternative circumstance that the action was brought in bad faith.

Questions Presented

1. Whether the trial court properly excluded Wilmington’s loan-payment records under the business-records exception because the unexplained reference to Marix Servicing indicated a lack of trustworthiness.
2. Whether the trial court clearly erred in finding that Wilmington failed to prove Berry received the notice of default and right to cure required by Maine foreclosure law.
3. Whether the trial court abused its discretion by awarding Berry attorney fees under 14 M.R.S. § 6101 when Wilmington did not prevail, without separately finding that the foreclosure action was brought in bad faith.

Disposition

affirmed