Editor: David Reiss
Brooklyn Law School

February 14, 2013

Maine Court Vacates Summary Judgment Ruling in Favor of Bank in a Foreclosure Action Because Bank’s Affidavits Contained Irregularities

By Abigail Pugliese

In HSBC Mortgage Services, Inc. v. Murphy et al., 19 A.3d 815 (Me. 2011), the court held that the district court erred by granting the Bank’s summary judgment, because the Bank’s affidavits contained “serious irregularities.”

In 2005, a mortgagor executed a note and mortgage with Calusa Investments (“Calusa”). The mortgage identified Calusa as the lender and MERS as nominee for the lender. The note did not mention MERS. “On December 11, 2006, MERS executed a document purporting to assign the mortgage to HSBC. On August 24, 2009, MERS executed a document purporting to confirm the assignment of the note and mortgage to HSBC.” In 2008, HSBC filed a complaint for foreclosure against mortgagor and moved for summary judgment. HSBC’s first motion for summary judgment was denied, while its second motion for summary judgment was granted. In its second motion for summary judgment, HSBC proved ownership of the note and mortgage through an endorsement signed by Calusa’s Director of Operations and affidavits signed by HSBC’s Vice President. Mortgagor appealed.

This court concluded that the “affidavits submitted by HSBC contain serious irregularities that make them inherently untrustworthy,” in violation of M.R. Evid. 803(6). In determining trustworthiness, the courts consider many factors, and “in the setting of summary judgment practice, any substantial errors or defects in the affidavit itself submitted in conjunction with the moving party’s statement of material facts.”

Here, the affidavit swears that the confirmatory assignment of the mortgage and note dated August 24, 2009 was recorded as of that date. However, the copy of the confirmatory assignment states that it was recorded on August 27, 2009—three days after the affidavit was signed and dated. Additionally, Maria Vadney not only signed the affidavit on behalf of HSBC, but she also signed the confirmatory assignment on behalf of MERS. It is unclear if she was an officer of both parties. Other deficiencies contained in HSBC’s affidavits included (1) “the signature and jurat appear[ing] on a page separate from the body of the affidavit”; and (2) “information . . . that was not available until more than four months after the affidavit was sworn . . . .” Thus, HSBC’s affidavits did not satisfy the requirements of M.R. Evid. 803(6), and the district court erred by granting HSBC summary judgment.

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