“Because we determine that the affidavits submitted by HSBC are inherently untrustworthy and, therefore, do not establish the foundation for admission of the attached documents as business records pursuant to M.R. Evid. 803(6), we vacate the judgment without reaching the substantive issues raised.”

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MAINE SUPREME JUDICIAL COURT

Decision: 2011 ME 59

Docket: And-10-90

Argued: September 15, 2010

Decided: May 19, 2011

Panel: SAUFLEY, C.J., and ALEXANDER, LEVY, SILVER, MEAD, GORMAN, and JABAR, JJ.

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HSBC MORTGAGE SERVICES, INC.

v.

DANA S. MURPHY et al.

Dana S. Murphy and Robin L. Murphy appeal from the entry of a summary judgment in the District Court (Lewiston, Beliveau, J.) in favor of HSBC Mortgage Services, Inc., on HSBC’s complaint for foreclosure and sale pursuant to 14 M.R.S. §§ 6321-6325 (2010). The Murphys contend that the court erred in granting a summary judgment to HSBC because genuine issues of material fact exist with regard to whether (1) Mortgage Electronic Services, Inc. (MERS), the mortgagee of record as “nominee” for the original lender, Calusa Investments, Inc., effectuated a valid assignment of the mortgage to HSBC; (2) HSBC owns the note originally executed by the Murphys in favor of Calusa Investments; and (3) HSBC gave the Murphys notice of default and the right to cure in compliance with the terms of the mortgage.

…

In this case, the affidavits submitted by HSBC contain serious irregularities that make them inherently untrustworthy. The first Vadney affidavit, submitted by HSBC in conjunction with its second motion for summary judgment identifies Vadney as “a Vice President of HSBC Mortgage Services, Inc.,” and was dated and notarized on August 24, 2009. It asserts, among other things, that HSBC is the holder of the note and mortgage deed by virtue of an assignment dated December 11, 2006, and a confirmatory assignment of the note and mortgage dated August 24, 2009. Copies of both assignments are attached to the affidavit. The affidavit states that the confirmatory assignment was recorded in the Androscoggin County Registry of Deeds in Book 7775, Page 346. The copy of the confirmatory assignment attached to the Vadney affidavit indicates that it was also dated and notarized on August 24, 2009, and then recorded at the Registry of Deeds on August 27, 2009, three days after the date Vadney signed the affidavit swearing that it had been recorded as of August 24, 2009.

In addition, the confirmatory assignment from MERS, as nominee for Calusa Investments, LLC, to HSBC was also signed by Vadney. It indicates that Vadney signed the confirmatory assignment on behalf of MERS in her capacity as its vice president. The summary judgment record is otherwise silent as to whether on August 24, 2009, Maria Vadney was simultaneously an officer of both MERS, the assignor, and HSBC, the assignee, as the affidavit and the confirmatory assignment suggest.

HSBC filed a second affidavit on October 1, 2009, signed by Maria Vadney on September 28, 2009, in support of its statement of supplemental facts filed in response to the Murphy’s opposing statement of material facts. The affidavit contains a notary’s jurat dated September 24, 2009, four days before Vadney signed the affidavit.

The Murphys, noting the discrepancies in the two Vadney affidavits and further observing that in both, the signature and jurat appear on a page separate from the body of the affidavit, urge us to infer that the texts of the affidavits submitted by HSBC were attached to the signature and jurat pages after those pages were executed. The Murphys further contend that if this inference is correct, “the potential for fraud is great with all these affidavits and near certain with the August 24th Vadney affidavit.”

In support of their claim that the affidavits are insufficiently trustworthy, the Murphys also point to the affidavit of John Gonzalez, filed in conjunction with HSBC’s first summary judgment motion, which was denied by the District Court. That affidavit was dated and notarized on September 10, 2008.

It reports, among other things, the principal balance, accrued interest, unpaid charges, and escrow balance due under the terms of the mortgage as of January 29, 2009. Thus, the Gonzalez affidavit provides information, vital to the entry of a judgment, that was not available until more than four months after the affidavit was sworn to by Gonzalez.

As an appellate court, and in view of the limited record before us, we do not adopt as fact the inference urged by the Murphys. Nor can we conclude on this record that a fraud has been committed on the Court, or determine whether the affidavits submitted by HSBC were made in bad faith so that an award of expenses pursuant to Rule 11(a)10 or Rule 56(g)11 is warranted. Nonetheless, we readily conclude that the Vadney affidavits submitted in support of HSBC’s second motion for summary judgment, like the Gonzalez affidavit submitted before them, are inherently untrustworthy and do not satisfy the foundational requirements of M.R. Evid. 803(6). Because the information contained in the affidavits, and the business records attached to them, are not of a quality that would be admissible at trial, the court erred by granting a summary judgment.

Full opinion below…

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4closureFraud.org

h/t Matt Weidner

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HSBC MORTGAGE SERVICES, INC. v. DANA S. MURPHY et al.