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Leone v. Mortgage Elec. Registration Sys.

Supreme Court of Rhode Island

October 20, 2014

Desmond A. Leone
v.
Mortgage Electronic Registration Systems et al

Superior Court. Providence County. (PC 10-801). Associate Justice Allen P. Rubine.

For Plaintiff: Mindy C. Montecalvo, Esq.

For Defendant: William M. Walsh, Esq.

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Page 870

Flaherty, Justice.

The plaintiff, Desmond A. Leone, appeals from summary judgment entered against him and in favor of the defendants Mortgage Electronic Registration Systems (MERS),[1] Equity One, Inc. (Equity One), and Assets Recovery Center Investments, LLC (ARC). This case came before the Supreme Court for oral argument on September 24, 2014, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After hearing the arguments and examining the memoranda filed by the parties, we are of the opinion that cause has not been shown, and we proceed to decide the appeal at this time, without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

I

Facts and Travel

On December 8, 2006, plaintiff Desmond Leone borrowed the sum of $241,000 from Equity One pledging the home he had owned since 1998 as collateral.[2] Equity

Page 871

One was the lender on the promissory note that Leone signed as maker. The note stated in relevant part, " I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the 'Note Holder.'" The note was secured by a mortgage on the Auburn Avenue property. The mortgage deed denominated Leone as the borrower and mortgagor and specified that MERS was the mortgagee, acting as nominee for lender, Equity One, and lender's successors and assigns. The mortgage deed included the statutory power of sale in favor of MERS as well as " to the successors and assigns of MERS." Finally, it was provided that MERS had the right to enforce its interests, " including, but not limited to, the right to foreclose and sell the property," in the event Leone failed to fulfill his obligation to pay the note. The mortgage deed was duly executed and recorded in the Land Evidence Records for the Town of Johnston on December 11, 2006.

On April 24, 2009, Equity One executed a notarized limited power of attorney enabling ARC to act on its behalf. ARC's power of attorney extended to the Leone mortgage that it purchased from Fulcrum Chicago Corporation (Fulcrum).[3] The power of attorney authorized ARC to act on behalf of the successor to Leone's note and " use or take any lawful means for recovery by legal process * * * and generally, to do and perform any and all things necessary and appropriate in connection with the [loan sale agreement]."

On April 27, 2009, MERS assigned its interest in the Leone mortgage to ARC via an assignment of mortgage. That assignment was recorded in the Land Evidence Records for the Town of Johnston on December 4, 2009. Unfortunately, Leone failed to make timely payments to the lender. As a result of Leone's default with respect to his obligations, ARC initiated foreclosure ...


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