BANSC-RE-2010-187-Defendants Obj Ps Witnesses Affidavits 0001

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DEFENDANT'S OBJECTION OF PLAINTIFF'S WITNESSES. AFFIDAVITS ANDEXHIBITS WITH INCORPORATED MOTION TO STRIKE AND

MEMORANDUM OF LAWTITLE TO REAL PROPERTY INVOLVED

INJUNCTIVE RELIEF SOUGHTJURYTRIAL DEMANDED

STATE OF MAINECIVIL

TD BANK N.A. fjkja FIRSTMASSACHUSETTS BANK N.A.Plaintiff,

v.

TWILA A. BUTLER fjkja WOLFANDCHARLTON A. BUTLER J R pro seDefendantandDefendant-Intervenor.

COUNTY OF PENOBSCOTSUPERIOR DISTRICT COURT

Case No.: BANSC-RE-2010-187Judge:

IN JUNCT IY E R ELIEF SOUGHTDEFENDANT'S OBJECTION OF PLAINTIFF'S WITNESSES,AFFIDAVITS AND EXHIBITS INCORPORATED MOTION TOSTRIKE AND MEMORANDUM OF LAW.JURY TRIAl, DEMANJWl

[Filed concurrently the following: Notice ofMotion, Defendant's Separate Statement ofUndisputed Facts, Motion to Disqualify OpposingCounsel, Defendants Objection to PlaintiffsWitnesses, Affidavits and Exhibits IncorporatedMotion to Strike and Memorandum of Law,Defendant Twila A. Butler fjkja Wolfs SwornAffidavit of Fact, Defendant's Motion ForCompensation For Time IncorporatedMemorandum of Law, Supporting Exhibits OnDefendant's Objection to Plaintiffs Motion to LiftStay and Motion for Final Judgment IncorporatedMotion for Sanctions, Declaratory and InjunctiveRelief and Memorandum of Law. [Proposed OrderGranting Defendants Motion]Date of Hearing: _Time of Hearing: _

NOW, Come Defendants Twila A. Butler fjkja Wolf and Charlton A. Butler Jr. witchallenge to Plaintiffs claim of undisputed facts of material substance. Plaintiffs armoving based on invalid legal assumptions, in an attempt to beat the clock with the MainState Legislature and enactment HP 128 LD145.

De fe nd an ts Ob je ctio n O f A nd Mo tio n To S trik e P la in tiff's A ff id a vit s, W i tn e sses , And Exhibits.


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STATE OF M AINECIV IL

COUNTY OF PENOBSCOTSU PERIOR D ISTRIC T COURT

1. The Butlers challenge the foundation presented by TD Bank to support theadmissibility of its mortgage records pursuant to the business records exception to thehearsay rule. See M.R.Evid. 803(6). TD Bank relied on the affidavit of an employee oTD Bank N.A.,one, Tonya Daigneault, to support its motion for summary judgment.Because that affidavit is inadequate to establish the admissibility of the purportedbusiness records, and consequently any alleged mortgage record allegedly containedwithin those records, it should be stricken as, hearsay, conversationally moot and orirrelevant and unproductive to these proceedings as any more than diversionary papand filler rather than any legally cognizable res, statutorily, or otherwise.

I. BACKGROUND

2. On September 1st, 2010, TD Bank filed a complaint for foreclosure against theButlers in the District Court. See 14 M.R.S. 6321 (2010). TD Bank alleged that theButlers had defaulted on payment towards a promissory note alleged owned by TDBank, which is allegedly secured by a mortgage on a certain pie ceo f realproperty in Bangor, State of Maine, county of Penobscot owned by the Butlers.13. After the parties were unable to resolve the case through mediation,2 Beingimpossible if only one of the parties is allowed to speak, TD Bank moved, stating as a

Defendants Objection O f And Motion To S t ri ke P la in t iff's A ffid av its, W itnesses, A n d E xh ib its .


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ST AT E O F MA IN ECIV IL

COUNTY OF PENOBSCOTSU PE RIO R D IST RIC T COURT

fact and matter of law, for the record, authority they do not did not and never willpossess, for summary judgment and submitted a statement of material facts. See M.RCiv. P. 56(h)(1). In support of its statement of those alleged material facts, TOBank referred to two affidavits-one from TO Bank's attorney, Perkins Thompson

I Senior Shareholder David B. McConnell, which clarified the priority of the Butlers'I creditors, and one from Tanya Daigneault, Vice President of Administrative Services forTDBank N.A.Servicing.4. TO Bank cites to Daigneault's affidavit, with its attached exhibits, as the soleevidentiary support for its allegations of its ownership of the note and mortgage, theButlers' obligation on the note, the Butlers' default, and the amount that the Butlersowed. Daigneault's, affidavit, states the following; as the only foundation Plaintiffs havefor her, or TObanks', supposedly, factual assertions:

1 TD Bank asserted that the unpaid principal, interest, charges, and feesamounted to a total obligation, depending on the document, of $17,880.2 Pursuant to M.R. Civ. P. 93, the parties participated in the Judicial BranchForeclosure Diversion Program in which the Butlers Constitutional rights to dueprocess were violated in that, with the approval and support of Plaintiff's attorneys,the Butlers were denied a right to speak, in their own defense, and or allowed topresent evidence in their defense or allowed to be a part of any meaningful mediation,as guaranteed by the law statutorily and Constitutionally, by mediator Robert Lingley,in his position and authority as mediator and in his capacity as an arm of the State ofMaine Superior District Court system and duly authorized to serve the interests of theState in, the equitable, lawful application of said law in adherence to Maine and USlaw

Defe nd an ts O bje ctio n O f A nd M otio n T o S trike P la in tiff's A ffid av its , W itn es se s, A nd E xh ibits.


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I I I I

STATE OF MAINECIVIL COUNTY OF PENOBSCOTSUPERIOR DISTRICT COURT

"The Bank [TD Bank] is the holder of the note andmortgage .... I have access to the records relating to themortgage transactions with respect to said note andmortgage. My knowledge as to the facts set forth in thisaffidavit is derived from my personal knowledge of thisaccount and of the records of this account, which are keptin the ordinary course of business by the Bank and whichwere made at or near the time of the transactions by, orfrom information transmitted by, a person with knowledgeof the facts set forth in said records. These records are keptin the ordinary course of business, pursuant to thecompany's regular practice of making such records. Theexhibits attached hereto are true copies of the originaldocuments."

5. The Butlers object to the admissibility of the Daigneault affidavit and the attachedexhibits on the grounds that they constitute hearsay and that TD Bank has notestablished a foundation for application of the business records exception. See 14M.R.S.1901(1) (2010); M.R.App. P. 2.

II . DISCUSSION

6. The court has recently addressed the foundational elements that must beestablished for a court to consider a business record on summary judgment in aforeclosure proceeding. See Benef ic ia l Mortq. S erv s., In c. v. Murphy, 2011 ME59, 19 A.3d815. Here, the, courts consider whether those foundational elements were properlypresented on summary judgment by an employee of the mortgage holder's "servicer."

I I II I II I I

D efen dants O bjectio n O f A nd M otion To S trike P la in tiff's A ffid av its , W itn es se s, A nd E xh ib its.


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ST AT E O F MAIN ECIVIL

COUNTY OF PENOBSCOTSU PERIO R D ISTRIC T COURT

A, Summary Judgment in Foreclosure Proceedings7. The Courts Standard of review in these matters is to review a court's entry of

summary judgment de novo, viewing the facts in the light most favorable to the partyagainst whom summary judgment was entered. See Murphy, 2011 ME 59, ~ 8, 19A,3d at ---.

I 8. To obtain a summary judgment of foreclosure, a mortgage holder must establish thatthere are no disputes of facts that are material to the elements required for foreclosure" andthat the note and mortgage holder is entitled to judgment as a matter of law. See M.R.Civ. P. 56(c).

3 The following, at a minimum, must be established for a mortgage holder to foreclose:the existence of the mortgage, including the book and page numberof the mortgage, and an adequate description of the mortgagedpremises, including the street address, if any; properly presented proof of ownership of the mortgage note andthe mortgage, including all assignments and endorsements of thenote and the mortgage;a breach of condition in the mortgage;the amount due on the mortgage note, including any reasonableattorney fees and court costs;the order of priority and any amounts that may be due to otherparties in interest, including any public utility easements;evidence of properly served notice of default and mortgagor'sright to cure in compliance with statutory requirements; after January 1, 2010, proof of completed mediation (orwaiver or default of mediation), when required, pursuant to thestatewide foreclosure mediation program rules; andif the homeowner has not appeared in the proceeding, a statement,with a supporting affidavit, of whether or not the defendant is inmilitary service in accordance with the Servicemembers Civil ReliefAct.

Chase Home Fin. LLC v. Higgins, 2009 ME 136, , 11, 985 A.2d 508, 510-11 (citations~~. ~

Defendants O bjection O f And M otion To S trik e P la in tiff's A ffid av its , W itn es se s, A nd E xh ib its .


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ST AT E O F MAINECIVIL

CO UNT Y OF PENOBSCOTSUPER IOR D ISTR ICT COURT

9. The facts offered in support of summary judgment must be properly presented for a courto enter summary judgment for the mortgage holder: "Supporting and opposing affidavitsshall be made on personal knowledge, shall set forth such facts as would be admissible inevidence, and shall show affirmatively that the affiant is competent to testify to the matters

I stated therein." M.R. Civ. P. 56(e). The record references must refer "to evidence that is ofa quality that would be admissible at trial." Murphy, 2011 ME 59, ~ 9, 19 A.3d.10. TD Bank attempted to support its statement of material facts with the affidavit of TanyaDaigneault, an individual who was not TD Bank's employee. The cursory reference inDaigneault's affidavit to her knowledge of the critical issues-how TD Bank created,maintained, and produced the records-prompts us to clarify the foundation of knowledgethat a nonemployee must possess to be a "qualified witness" to lay the foundation for abusiness record, M.R. Evid. 803(6), in an affidavit to support summary judgment in aforeclosure action, M.R. Civ. P. 560).11. In reviewing the adequacy of the affidavit presented In this case, the court woulddiscuss;

(A) their standard of review for the challenged ruling,(B) summarize, the foundational elements and knowledge required for anaffiant to establish the admissibility of a business record, and(C) review the adequacy of the affidavit presented by TD Bank todetermine whether summary judgment would have been appropriate in thiscase.

IIIIII

D efen da nts O bjectio n O f A nd M otion T o S trike P la in tiff's A ffid a vits , W i tn e ss es, A n d E x hib it s.


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ST AT E O F MA IN ECIVIL

CO UN TY OF PENOBSCOTSUPERIOR DIS TR IC T COURT

B. Standard ofReview on Summary Judgment

1 2 . In the past, the court has reviewed the lower courts' consideration of businessrecords on summary judgment for an abuse of discretion. See Estate of Davis, 2001 ME106, ~ 10, 775 A.2d 1127, 1130-31; United Air Lines, Inc. v. Hewins TravelConsultants, Inc., 622 A.2d 1163, 1167-69 (Me. 1993).1 3 . Since these cases were decided, however, the courts have clarified that, whenthey review a trial ruling regarding the admissibility of a business record, they reviewfoundational findings for clear error and the ultimate determination of the record'sadmissibility for abuse of discretion. See Bank of Am., NA. v. Barr, 2010 ME 124, ~ 17, 9A.3d 816,820.1 4 . Because the courts review the summary judgment record de novo in the lightmost favorable to the non-prevailing party, and because the evidence relied on at summaryjudgment must be of a quality that would be admissible at trial, the court would thenfollow the Stat ofMaine' s, bifurcated, standard of review from Barr to determine,

(1) whether competent undisputed evidence, properly referenced in thestatements of material facts, supports the foundational facts required foradmissibility of the asserted business records; and(2) if those facts are supported, whether the court abused its discretion inconsidering the evidence. See id.; see also M.R. Civ. P. 56(e); M.R. Evid.803(6). If necessary foundational elements for admission of abusiness record are not supported by competent undisputed evidence in thesummary judgment record, that business record may not be considered on

Defendants Objection O f A nd M otion To S trike P la in tiff's A ffidavits , W itnesses, A nd Exhib its .


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STAT E OF MAIN ECIVIL

COUNTY OF PENOBSCOTSUPERIOR DISTRICT COURT

Ii business's record of acts or events is admissible as an exception to the hearsay rule if thenecessary foundation is established "by the testimony of the custodian or other qualified

I witness." M.R.Evid. 803(6);5 seeMurphy, 2011 ME 59, 1 ! 10,19 A.3d.

4 The Legislature has, for instance, crafted certain limited exceptions to theinadmissibility of hearsay. See, e.g., 22 M.R.S. 4007(3-A) (2010) (providing that,absent a timely objection, the written report of a licensed mental health professionalis admissible in a child protection proceeding, without the professional'stestimony, if that professional treated or evaluated the child who is the subject of theproceeding).

5 The business records exception is stated as follows in the Maine Rules of Evidence:The following are not excluded by the hearsay rule, even though

the declarant is available as a witness:(6) Records of regularly conducted business. A memorandum,report, record, or data compilation, in any form, of acts, events,conditions, opinions, or diagnoses, made at or near the time by, or from

information transmitted by, a person with knowledge, if kept in thecourse of a regularly conducted business, and if it was the regularpractice of that business to make the memorandum, report, record, ordata compilation, all as shown by the testimony of the custodian or otherqualified witness, or by certification that complies with Rule 902(11),Rule 903(12) or a statute permitting certification, unless the source ofinformation or the method or circumstances of preparation indicatelack of trustworthiness. The term "business" as used in thisparagraph includes business, institution, association, profession,occupation, and calling of every kind, whether or not conducted forprofit. M.R. Evid. 803.

17. This requirement is tied to the purpose underlying the business records exceptionto the hearsay rule: to allow the consideration of a business record, without requiringfirsthand testimony regarding the recorded facts, by supplying a witness whoseknowledge of business practices for production and retention of the record is sufficient

D efe nd an ts O bje ctio n O f A nd M otio n T () S trik e P la in tiff's A ffid avits , W itnesses, A n d E x hib its .


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\cO UN TY OF PENOBSCOTSUPERIOR DISTR ICT COURT

I to ensure the reliability and trustworthiness of the record. See Murphy, 2011 ME 59,110-17,19 A.3d at ---; State v. Radley, 2002 ME 150, 13-16,804 A.2d 1127, 1131-32;State v. Tomah, 1999 ME109,9, 736 A.2d 1047, 1050-51.18. The affiant whose statements are offered to establish the admissibility of a business

I record on summary judgment need not be an employee of the record's creator.II See, e.g., Ne. Bank & Trust Co. v. Soley, 481 A.2d 1123,1127 (Me. 1984). For instance,if the records were received and integrated into another business's records and wererelied upon in that business's day-to-day operations, an employee of the receivingbusiness may be a qualified witness. See id.; see also Field & Murray, Maine Evidence 803.6 at 486 (6th ed. 2007). In such instances, records will be admissible pursuantto the business records exception to the hearsay rule, M.R. Evid. 803(6), if thefoundational evidence from the receiving entity's employee is adequate to demonstratethat the employee had sufficient knowledge of both businesses' regular practices todemonstrate the reliability and trustworthiness of the information. Soley, 481 A.2d at1126-27; see also United States v. Pfeiffer, 539 F.2d 668, 670-71 (8th Cir. 1976)(upholding the admission of delivery receipts from a common carrier when thesender's employee testified about the process by which such receipts weregenerated and obtained in the regular course of business and relied upon by thesender).19. Such an affiant must demonstrate knowledge that

the producer of the record at issue employed regular businesspractices for creating and maintaining the records that were

D efendan ts O bjection O f A nd M otio n T o S trike P la in tiff's A ffid av its , W itn es ses, A nd E xh ib its .


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ST AT E O F MAIN ECIVIL

COUNTY OF PENOBSCOTSUP ER IO R D ISTRIC T COURT

sufficiently accepted by the receiving business to allow reliance on therecords by the receiving business;

the producer of the record at issue employed regular businesspractices for transmitting them to the receiving business;

by manual or electronic processes, the recervmg businessintegrated the records into its own records and maintained themthrough regular business processes;

the record at issue was, in fact, among the receiving business's ownrecords; and the receiving business relied on these records in its day-to-dayoperations. See Soley,481 A.2d at 1126-27.

20. The affiant must have firsthand knowledge, based on the affiant's supervision of orparticipation in day-to-day business operations of the receiving business, that therecords were among those created, maintained, and transmitted through regularbusiness practices. Murphy, 2011 ME 59, 10, 19 A.3d; Barr, 2010 ME124, 19,9 A.3dat 821. An affiant so qualified must aver the following standard foundational elements,some of which may already have been established through proof of the witness'squalifications:

(1) the record was made at or near the time of the events reflected in the recordby, or from information transmitted by, a person with personal knowledge of theevents 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 thetype involved; and(4) no lack of trustworthiness is indicated from the source ofinformation from which the record was made or the method orcircumstances under which the record was prepared.

Murphy, 2011 ME 59, 10, 19 A.3d at --- (quoting Barr, 2010 ME 124, 18,D efe nd ants O bje ction O f A nd M otion T o S trike P la in tiff's A ffid av its , W itne sses, A nd E xh ib its .


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STA TE O F MAINECIVIL

COUNTY OF PENOBSCOTSUPERIOR DIST RIC T C OU RT

9 A.3d at 821); se e M.R.Evid.803(6).D . Admissibility of TDBank's Records and Summary Judgment on Review

21. On appeal before the appellant court, Daigneault would be considered anemployee, not, of TD Bank itself but of TD Bank's "servicer," TD Banks' servicingI subsidiary. Although Daigneault's affidavit states that the records were kept by TDBank in the ordinary course of business from information supplied at or near the timeof the recorded events by a person with knowledge of those events, it does not provideany basis for Daigneault's personal knowledge of TDBank's practices. Daigneault doesnot purport to her be the custodian of the records, nor does she explain the source ofher understanding ofTD Bank's "daily operation" or show the "firsthand nature of [her]knowledge." Murphy, 2011 ME59, 10,19 A.3d Her affidavit indicates, only, that she haspersonal knowledge of "this account and of the records of this account" and that she has"access to the records." The affidavit provides no elaboration on the nature of TDBankServicing Department's role as TD Bank's "servicer," or of TD Bank Servicing'sresponsibilities and activities with regard to TDBank's accounts.2 2 . Although it is possible that an employee of TD Bank-perhaps evenDaigneault herself-may have personal knowledge of both entities' practices forcreating, maintaining, and transmitting the records herein in dispute, the affidavit doesnot purport or support the basis for Daigneault's knowledge of;

(1) TD Bank's practices for creating, maintaining, and transmitting therecords at issue;

D efendan ts O bjection O f A nd M otion To S trike P la in tiff's A ffid a vits , W i tn e sses, A nd Exhib its .


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STATE OF M AINECIVIL

COUNTY OF PENOBSCOTSUPER IO R D ISTR ICT COURT

admissibility, the court could not properly consider those records on summary, judgment. See M.R.Civ.P. 56(e).I,24. TD Bank has presented no other evidence regarding the mortgage, the default,, or the other elements set forth in Chase Home Finance LLC v. Higgins, 2009 ME 136I 11, 985 A.2d 508, 510-11, to support its motion for summary judgment.,25. Because of the many deficiencies in the affidavit, TD Bank has failed todemonstrate on summary judgment that the Butlers were obligated by, and defaultedon, the mortgage note, and that TD Bank is entitled to judgment as a matter of law.See M.R.Civ. P. 56(c), (e); Murphy, 2011 ME59, ~ 17, 19 A.3d.26. Accordingly, the summary judgment, if, entered in favor of TD Bank. Havingreached this conclusion, the court would have no other choice and lawful action but tovacate and remand.27. Considering the elements of this matter; remand, for further proceedings would bean ruling that, due to the vitiating fraud involved here, would be without the bindingeffect of law nevertheless, placing the Plaintiffs back at the beginning of their casewithout a single legal case leg to stand on and therefore Defendants would argue forpermanent declaratory and injunctive relief.28. "i..ltD oes N ot Require A M ajority To P re va il B ut R ath er An Irate and Tire le ss M in ority Keen ToS et B ru sh F ires In P eo ple's M inds." S am uel Adams.29. In, the words of my ancestor "Mininutis vasis vitutus consistit perfecta victoriae suaeactiones subtilis." Pierce Butler, Founding father, Signer of The Constitution of the United

Defendants O bjection O f A nd M otion To S tr ik e P la in ti ff's A ffid avits, W itn esses, A nd E xhib its.


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STATE O F M AINECIVIL

C OU NTY O F P EN OBSC OTSUPERIO R DISTRICT CO URT

number of people; help the healing of this country, by the prosecution of those, of whoma great crime has been committed by. In the alternative simple permanent declaratoryrelief, injunctive relief until Defendants Federal Claims are exhausted; sanctions and any.and all relief available to Defendants, but for, of course, as mentioned above, and in thealternative Defendants make demand for a jury trial.

Respectfully submitted this 28th day of February 2012.

Twila A.Butler fjkja Wolf Defendant pro se.

Charlton A.Butler Jr. Defendant-Intervenor pro se

D efe nd an ts O bje ctio n O f A nd M otio n T o S trik e P la in tiff's A ffid av its , W itn ess es, And E x hib its .

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BANSC-RE-2010-187-Defendants Obj Ps Witnesses Affidavits 0001

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