STATE OF MAINE CIVIL

TD BANK N.A. fjkja MASSACHUSETTS FIRST BANK N.A.

COUNTY OF PENOBSCOT SUPERIOR DISTRICT COURT

Case No.: BANSC-RE-2010-187

Plaintiff,

Judge: INJUNCTIYE RELIEF SOUGHT v.
DEFENDANT'S OBJECTION OF PLAINTIFF'S AFFIDAVITS AND EXHIBITS INCORPORATED STRIKE AND MEMORANDUM OF LAW. JURY TRIAl, DEMANJWl TWILA A. BUTLER fjkja WOLF AND CHARLTON A. BUTLER pro se WITNESSES, MOTION TO

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Defendant

and
Defendant-Intervenor.

[Filed concurrently the following: Notice of Motion, Defendant's Separate Statement of Undisputed Facts, Motion to Disqualify Opposing Counsel, Defendants Objection to Plaintiffs Witnesses, Affidavits and Exhibits Incorporated Motion to Strike and Memorandum of Law, Defendant Twila A. Butler fjkja Wolfs Sworn Affidavit of Fact, Defendant's Motion For Compensation For Time Incorporated Memorandum of Law, Supporting Exhibits On Defendant's Objection to Plaintiffs Motion to Lift Stay and Motion for Final Judgment Incorporated Motion for Sanctions, Declaratory and Injunctive Relief and Memorandum of Law. [Proposed Order Granting Defendants Motion] Date of Hearing: Time of Hearing: _ _

DEFENDANT'S OBJECTION OF PLAINTIFF'S WITNESSES. AFFIDAVITS AND EXHIBITS WITH INCORPORATED MOTION TO STRIKE AND MEMORANDUM OF LAW TITLE TO REAL PROPERTY INVOLVED INJUNCTIVE RELIEF SOUGHT JURY TRIAL DEMANDED NOW, Come Defendants Twila A. Butler fjkja

Wolf and Charlton A. Butler Jr. wit

challenge to Plaintiffs claim of undisputed facts of material substance. Plaintiffs ar moving based on invalid legal assumptions, in an attempt to beat the clock with the Main State Legislature and enactment HP 128 LD 145.

Defendants Objection Of And Motion To Strike Plaintiff's Affidavits, Witnesses, And Exhibits.

STATE OF MAINE CIVIL

COUNTY OF PENOBSCOT SUPERIOR DISTRICT COURT

1. The Butlers challenge the foundation presented

by TD Bank to support

the

admissibility of its mortgage records pursuant to the business records exception to the hearsay rule. See M.R.Evid. 803(6). TD Bank relied on the affidavit of an employee of TD Bank N.A., one, Tonya Daigneault, to support its motion for summary judgment. Because that affidavit is inadequate to establish the admissibility of the purported business records, and consequently any alleged mortgage record allegedly contained within those records, it should be stricken as, hearsay, conversationally moot and or irrelevant and unproductive to these proceedings as any more than diversionary pap and 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 the

Butlers in the District Court. See 14 M.R.S.§ 6321 (2010). TD Bank alleged that the Butlers had defaulted on payment towards a promissory note alleged owned by TD Bank, which is allegedly secured by a mortgage on a certain pie ceo f real

property in Bangor, State of Maine, county of Penobscot owned by the Butlers.1 3. After the parties were unable to resolve the case through mediation,2 Being

impossible if only one of the parties is allowed to speak, TD Bank moved, stating as a

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Defendants Objection Of And Motion To Strike Plaintiff's Affidavits, Witnesses, And Exhibits.

STATE OF MAINE CIVIL

COUNTY OF PENOBSCOT SUPERIOR DISTRICT COURT

fact and matter of law, for the record, authority they do not did not and never will possess, for summary judgment and submitted a statement of material facts. See M.R. Civ. P. 56(h)(1). In support of its statement of those alleged material facts, TO

Bank 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 for TD Bank N.A.Servicing. 4. TO Bank cites to Daigneault's affidavit, with its attached exhibits, as the sole

evidentiary support for its allegations of its ownership of the note and mortgage, the Butlers' obligation on the note, the Butlers' default, and the amount that the Butlers owed. Daigneault's, affidavit, states the following; as the only foundation Plaintiffs have for her, or TO banks', supposedly, factual assertions:

1 TD Bank asserted that the unpaid principal, interest, charges, amounted to a total obligation, depending on the document, of $17,880.

and

fees

Pursuant to M.R. Civ. P. 93, the parties participated in the Judicial Branch Foreclosure Diversion Program in which the Butlers Constitutional rights to due process 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 to present 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 of Maine Superior District Court system and duly authorized to serve the interests of the State in, the equitable, lawful application of said law in adherence to Maine and US law
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Defendants Objection Of And Motion To Strike Plaintiff's Affidavits, Witnesses, And Exhibits.

STATE OF MAINE CIVIL

COUNTY OF PENOBSCOT SUPERIOR DISTRICT COURT

"The Bank [TD Bank] is the holder of the note and mortgage .... I have access to the records relating to the mortgage transactions with respect to said note and mortgage. My knowledge as to the facts set forth in this affidavit is derived from my personal knowledge of this account and of the records of this account, which are kept in the ordinary course of business by the Bank and which were made at or near the time of the transactions by, or from information transmitted by, a person with knowledge of the facts set forth in said records. These records are kept in the ordinary course of business, pursuant to the company's regular practice of making such records. The exhibits attached hereto are true copies of the original documents."
5. The Butlers object to the admissibility of the Daigneault affidavit and the attached exhibits on the grounds that they constitute hearsay and that TD Bank has not established a foundation for application of the business records exception. M.R.S.§ 1901(1) (2010); M.R.App. P. 2. II. DISCUSSION See 14

6.

The court has recently addressed

the foundational

elements

that

must be

established for a court to consider a business record on summary judgment in a foreclosure proceeding. See Beneficial Mortq. Servs., Inc. v. Murphy, 2011 ME 59, 19 A.3d 815. Here, the, courts consider whether those foundational elements were properly presented on summary judgment by an employee of the mortgage holder's "servicer."

III III III
I

III
Defendants Objection Of And Motion To Strike Plaintiff's Affidavits, Witnesses, And Exhibits.

STATE OF MAINE CIVIL
A,

COUNTY OF PENOBSCOT SUPERIOR DISTRICT COURT

Summary Judgment in Foreclosure Proceedings

7. 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 party against whom summary judgment was entered.
A,3d at ---.
I

See Murphy, 2011 ME 59, ~ 8, 19

8.

To obtain a summary judgment of foreclosure, a mortgage holder must establish that

there are no disputes of facts that are material to the elements required for foreclosure" and that 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 number of the mortgage, and an adequate description of the mortgaged premises, including the street address, if any; • properly presented proof of ownership of the mortgage note and the mortgage, including all assignments and endorsements of the note and the mortgage; a breach of condition in the mortgage; the amount due on the mortgage note, including any reasonable attorney fees and court costs; the order of priority and any amounts that may be due to other parties in interest, including any public utility easements; evidence of properly served notice of default and mortgagor's right to cure in compliance with statutory requirements; • after January 1, 2010, proof of completed mediation (or waiver or default of mediation), when required, pursuant to the statewide foreclosure mediation program rules; and if the homeowner has not appeared in the proceeding, a statement, with a supporting affidavit, of whether or not the defendant is in military service in accordance with the Servicemembers Civil Relief Act.

Chase Home Fin. LLC v. Higgins, 2009 ME 136, , 11, 985 A.2d 508, 510-11 (citations
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Defendants Objection Of And Motion

To Strike Plaintiff's Affidavits, Witnesses, And Exhibits.

STATE OF MAINE CIVIL

COUNTY OF PENOBSCOT SUPERIOR DISTRICT COURT

9.

The facts offered in support of summary judgment must be properly presented for a court

to enter summary judgment for the mortgage holder: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters

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I stated therein." M.R. Civ. P. 56(e).

The record references must refer "to evidence that is of

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a 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 Tanya Daigneault, an individual who was not TD Bank's employee. The cursory reference in Daigneault's affidavit to her knowledge of the critical issues-how maintained, and produced the records-prompts TD Bank created,

I

us to clarify the foundation of knowledge

that a nonemployee must possess to be a "qualified witness" to lay the foundation for a business record, M.R. Evid. 803(6), in an affidavit to support summary judgment in a foreclosure action, M.R. Civ. P. 560). 11. In reviewing the adequacy of the affidavit presented In this case, the court would discuss; (A) their standard of review for the challenged ruling, (B) summarize, the foundational elements and knowledge required for an affiant to establish the admissibility of a business record, and (C) review the adequacy of the affidavit presented by TD Bank to determine whether summary judgment would have been appropriate in this case.

I

III

III
Defendants Objection Of And Motion To Strike Plaintiff's Affidavits, Witnesses, And Exhibits.

STATE OF MAINE CIVIL B. Standard of Review on Summary Judgment

COUNTY OF PENOBSCOT SUPERIOR DISTRICT COURT

12 .

In the past, the court has reviewed the lower courts' consideration of business

records on summary judgment for an abuse of discretion. See Estate of Davis, 2001 ME
I

106, ~ 10,

775 A.2d 1127, 1130-31; United Air

Lines, Inc. v. Hewins Travel'

Consultants, Inc., 622 A.2d 1163, 1167-69 (Me. 1993). 13 . Since these cases were decided, however, the courts have clarified that, when

they review a trial ruling regarding the admissibility of a business record, they review foundational findings for clear error and the ultimate determination of the record's admissibility for abuse of discretion. See Bank of Am., NA. v. Barr, 2010 ME 124, ~ 17, 9 A.3d 816,820. 14 . Because the courts review the summary judgment record de novo in the light

I

most favorable to the non-prevailing party, and because the evidence relied on at summary judgment must be of a quality that would be admissible at trial, the court would then follow the Stat of Maine' s, bifurcated, standard of review from Barr to determine, (1) whether competent undisputed evidence, properly referenced in the statements of material facts, supports the foundational facts required for admissibility of the asserted business records; and (2) if those facts are supported, whether the court abused its discretion in considering the evidence. See id.; see also M.R. Civ. P. 56(e); M.R. Evid. 803(6). If necessary foundational elements for admission of a

business record are not supported by competent undisputed evidence in the summary judgment record, that business record may not be considered on
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Defendants Objection Of And Motion To Strike Plaintiff's Affidavits, Witnesses, And Exhibits.

STATE OF MAINE CIVIL

COUNTY OF PENOBSCOT
SUPERIOR DISTRICT COURT

summary judgment. See M.R. Civ. P. 56(e); see also Smith v. Burlington
N & Santa Fe Ry. Co., 187 P.3d 639, 649-50 (Mont. 2008) (rejecting

the application of a pure abuse-of-discretion standard of review when
reviewmg "-'
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a ruling on the foundation for admissibility on summary

judgment).
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If the court concludes that specific documents presented in support of summary

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judgment lacked the necessary foundation to be admissible as business records or that the reviews de novo whether, or not,

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in the absence of those records, there are or was sufficient undisputed facts to entitle the moving party to judgment as a matter oflaw. See Murphy, 2011 ME 59, ~ 8, 19 A.3d at --; M.R. Civ. P. 56(c). TD Bank's records, offered through the affidavit of TD BANK's employee, w 0 u 1d constitute the only evidence in the summary judgment record concerning the contract and the breach. If those records, on review, could not be considered, TD Bank will have failed to meet its burden on summary judgment to provide undisputed facts upon which it is entitled to judgment as a matter of law. See M.R. Civ. P. 56(c). Accordingly, the outcome of any appeal would turn on the admissibility of the business records. C. Business Records Exception to the Hearsay Rule

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16. Hearsay, defined as "a statement, other than one made by the declarant, while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," M.R.Evid. BOiCe),is inadmissible except as provided by law 4 or by the Maine Rules of Evidence, see M.R. Evid. B02. Pursuant to the Maine Rules of Evidence, a
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Defendants Objection Of And Motion To Strike Plaintiff's A1fidavits, Witnesses, And Exhibits.

STATE OF MAINE CIVIL
I
i

COUNTY OF PENOBSCOT SUPERIOR DISTRICT COURT

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

I witness."

M.R.Evid. 803(6);5 see Murphy, 2011 ME 59, 1! 10,19 A.3d.

4 The Legislature has, for instance, crafted certain limited exceptions to the inadmissibility 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 professional is admissible in a child protection proceeding, without the professional's testimony, if that professional treated or evaluated the child who is the subject of the proceeding).

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 the course of a regularly conducted business, and if it was the regular practice of that business to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 903(12) or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. M.R. Evid. 803.

17. This requirement is tied to the purpose underlying the business records exception to the hearsay rule: to allow the consideration of a business record, without requiring firsthand testimony regarding the recorded facts, by supplying a witness whose

knowledge of business practices for production and retention of the record is sufficient

Defendants Objection Of And Motion T() Strike Plaintiff's Affidavits, Witnesses, And Exhibits.

STATE OF MAINE CIVIL

\cOUNTY OF PENOBSCOT SUPERIOR DISTRICT COURT and trustworthiness of the record. See Murphy, 2011 ME 59, I

I to ensure the reliability
1

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10-17,19

A.3d at ---; State v. Radley, 2002 ME 150, 13-16,804

A.2d 1127, 1131-32; I

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
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record on summary judgment need not be an employee of the record's creator.
. &

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I See, e.g., Ne. Bank

Trust Co. v. Soley, 481 A.2d 1123,1127

(Me. 1984). For instance,

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if the records were received and integrated into another business's records and were relied upon in that business's day-to-day operations, an employee of the receiving business 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 pursuant to the business records exception to the hearsay rule, M.R. Evid. 803(6), if the

foundational evidence from the receiving entity's employee is adequate to demonstrate that the employee had sufficient knowledge of both businesses' regular practices to demonstrate the reliability and trustworthiness of the information. Soley, 481 A.2d at

1126-27; 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 the sender's generated sender). 19. Such an affiant must demonstrate knowledge that employee testified about the process by which such receipts were

and obtained in the regular course of business and relied upon by the

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

Defendants Objection Of And Motion To Strike Plaintiff's Affidavits, Witnesses, And Exhibits.

STATE OF MAINE CIVIL

COUNTY OF PENOBSCOT SUPERIOR DISTRICT COURT

sufficiently accepted by the receiving business to allow reliance on the records by the receiving business; • the producer of the record at issue employed regular business practices for transmitting them to the receiving business; by manual or electronic processes, the recervmg business integrated the records into its own records and maintained them through regular business processes;

• the record at issue was, in fact, among the receiving business's own records; and • the receiving business relied on these records in its day-to-day operations. See Soley,481 A.2d at 1126-27. 20. The affiant must have firsthand knowledge, based on the affiant's supervision of or participation in day-to-day business operations of the receiving business, that the through regular

records were among those created, maintained, and transmitted

business practices. Murphy, 2011 ME 59, 10, 19 A.3d; Barr, 2010 ME 124, 19,9 A.3d at 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's qualifications: (1) the record was made at or near the time of the events reflected in the record by, or from information transmitted by, a person with personal knowledge of the events 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 the type involved; and (4) no lack of trustworthiness is indicated from the source of information from which the record was made or the method or circumstances under which the record was prepared. Murphy, 2011 ME 59, 10, 19 A.3d at --- (quoting Barr, 2010 ME 124, 18,
Defendants Objection Of And Motion To Strike Plaintiff's Affidavits, Witnesses, And Exhibits.

STATE OF MAINE CIVIL

COUNTY OF PENOBSCOT
SUPERIOR DISTRICT COURT

9 A.3d

at 821); see M.R.Evid. 803(6). Admissibility of TD Bank's Records and Summary Judgment on Review On appeal before the appellant court, Daigneault would be considered an

D.
21.

employee, not, of TD Bank itself but of TD Bank's "servicer," TD Banks' servicing I subsidiary. Although Daigneault's affidavit states that the records were kept by TD

Bank 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 does not provide any basis for Daigneault's personal knowledge of TD Bank's practices. Daigneault does

not purport to her be the custodian of the records, nor does she explain the source of her understanding ofTD Bank's "daily operation" or show the "firsthand nature of [her] knowledge." Murphy, 2011 ME 59, 10,19 A.3d Her affidavit indicates, only, that she has personal 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 TD Bank Servicing Department's role as TD Bank's "servicer," or of TD Bank Servicing's

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responsibilities and activities with regard to TD Bank's accounts. 22. Although it is possible that an employee of TD Bank-perhaps have personal knowledge of both entities' practices even for

Daigneault herself-may

creating, maintaining, and transmitting the records herein in dispute, the affidavit does not purport or support the basis for Daigneault's knowledge (1) TD Bank's practices records at issue; of; the

for creating, maintaining, and transmitting

Defendants Objection Of And Motion To Strike Plaintiff's Affidavits, Witnesses, And Exhibits.

STATE OF MAINE CIVIL

COUNTY OF PENOBSCOT SUPERIOR DISTRICT COURT

(2) TD Bank's practices in obtaining and maintaining the bank's records for TD Bank's own use; or (3) TD Bank's integration of the bank's records into TD Bank's Servicing Departments own records.
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(4) TD Bank will never be able to produce the material needed and required to foreclose in this matter.

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(5) The court, and the appeal court, need to be on the lookout for it, it being the recent displays of magic in courtrooms across the country with the magical tadaaa!, appearance of otherwise, fatal to their case, missing, now found documents. Of which the forged or improper nature of that paperwork would have to be seriously considered and sanctions issued.

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As they have had, almost, a year of constant yammering by Defendants to the flawed nature of Plaintiffs complaint imposed on

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homeowners by Plaintiffs, in combination, with the fact Defendants never made this loan in the first place mixed with fraud ...well you get the idea. See
Murphy, 2011 ME 59, ~ 10, 19 A.3d Barr, 2010 ME 124, ~~ 18-19,9 A.3d at

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820-21; Soley, 481 A.2d at 1127; M.R.Civ. P. 56(e). 23. Daigneault did not, therefore, 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. M.R.Evid. 803(6). Because Daigneault's affidavit cannot establish the foundation for the records'

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Defendants Objection Of And Motion To Strike Plaintiffs Affidavits, Witnesses, And Exhibits.

STATE OF MAINE CIVIL

COUNTY OF PENOBSCOT SUPERIOR DISTRICT COURT

admissibility, the court could not properly , judgment. See M.R.Civ.P. 56(e).
I,

consider those records

on summary

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 136,
I

,

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 to

demonstrate on summary judgment that the Butlers were obligated by, and defaulted on, 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 ME 59, ~ 17, 19 A.3d. 26. Accordingly, the summary judgment, if, entered in favor of TD Bank. Having

reached this conclusion, the court would have no other choice and lawful action but to vacate and remand. 27. Considering the elements of this matter; remand, for further proceedings would be an ruling that, due to the vitiating fraud involved here, would be without the binding effect of law nevertheless, placing the Plaintiffs back at the beginning of their case without a single legal case leg to stand on and therefore Defendants would argue for permanent declaratory and injunctive relief.
28. "i..lt Does Not Require A Majority To Prevail But Rather An Irate and Tireless Minority Keen To Set Brush Fires In People's Minds." Samuel Adams.

29. In, the words of my ancestor "Mininutis vasis vitutus consistit perfecta victoriae suae actiones subtilis." Pierce Butler, Founding father, Signer of The Constitution of the United
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Defendants Objection Of And Motion

To Strike Plaintiff's Affidavits, Witnesses, And Exhibits.

STATE OF MAINE CIVIL

COUNTY OF PENOBSCOT SUPERIOR DISTRICT COURT

number of people; help the healing of this country, by the prosecution of those, of whom a great crime has been committed by. In the alternative simple permanent declaratory relief, 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 the alternative 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

Defendants Objection Of And Motion To Strike Plaintiff's Affidavits, Witnesses, And Exhibits.

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