Servicer’s Affidavit In Support Of Judgment Deemed Faulty Because It Did Not Provide Basis For The Affiant’s Knowledge Of The Named Plaintiff’s Practices

In Beneficial Maine Inc. v. Carter, 2011 ME 77, __A.3d__ (July 7, 2011) the borrower’s challenged the foundation presented by the plaintiff mortgagee to support the admissibility of its mortgage records pursuant to the business records exception to the hearsay rule. The plaintiff relied on the affidavit of an employee of its servicer to support its motion for summary judgment, but the court found that the affidavit was inadequate to establish the admissibility of the purported business records. The court noted that, it was not fatal that the affiant was not an employee of the plaintiff, but to admit business records the affiant must still have firsthand knowledge, based on the affiant’s supervision of or participation in day-to-day business operations of the receiving business, and that the records were among those created, maintained, and transmitted through regular business practices. The court found that although the affidavit states that the records were kept by plaintiff in the ordinary course of business from information supplied at or near the time of the recorded events by a person with knowledge of those events, it did not provide any basis for affiant’s personal knowledge of the plaintiff’s practices. The affiant did not purport to be the custodian of the records, nor did she explain the source of her understanding of plaintiff’s daily operation or show the firsthand nature of [her] knowledge. (quotation omitted). Her affidavit indicates only that she had personal knowledge of this account and of the records of this account and that she had access to the records. The affidavit also provides no elaboration on the nature of the servicer’s role as servicer, or of its responsibilities and activities with regard to plaintiff’s accounts. The affidavit did not report the basis for the affiant’s knowledge of (1) the plaintiff’s practices for creating, maintaining, and transmitting the records at issue; (2) the servicer’s practices in obtaining and maintaining the bank’s records for its own use; or (3) the servicer’s integration of the bank’s records into its own records. As a result the affiant did not establish that she was a custodian or other qualified witness who could provide trustworthy and reliable information about the regularity of the creation, transmission, and retention of the records offered and the court could not properly consider those records on summary judgment.

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