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DiLibero v. Mortgage Electronic Registration Systems, Inc.

Supreme Court of Rhode Island

January 14, 2015

Ann Marie DiLibero
v.
Mortgage Electronic Registration Systems, Inc., et al

Providence County Superior Court. (PC 11-4645). Associate Justice Allen P. Rubine.

For Plaintiff: John B. Ennis, Esq.

For Defendants: Jennifer J. Normand, Esq.

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

OPINION

Page 1014

Flaherty, Justice.

The plaintiff, Ann Marie DiLibero, appeals from a judgment dismissing her complaint against the defendants Mortgage Electronic Registration Systems, Inc. (MERS),[1] UBS Real Estate Securities, Inc. (UBS), USA Residential Properties (USA Residential), and Rushmore Loan Management Services, LLC (Rushmore). On November 6, 2014, this case came before the Supreme Court pursuant to an order directing the parties to show cause why the issues in this appeal should not be summarily decided. After hearing the arguments of the parties and examining the memoranda that they submitted, 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 vacate the judgment of the Superior Court.

I

Facts and Travel

On January 31, 2007, plaintiff purchased a home at 9 Jencks Road in Foster. To finance that transaction, plaintiff executed an adjustable-rate note, payable to New Century Mortgage Corporation (New Century), in the amount of $255,000. The note was secured by a mortgage on the property denominating plaintiff as borrower and MERS as mortgagee, acting as a " nominee for Lender and Lender's successors and assigns." Both the note and the mortgage designated New Century as the lender. Further, the mortgage provided that " [b]orrower does hereby mortgage, grant and convey to MERS, (solely as nominee for Lender and Lender's successors and assigns) and to the successors and assigns of MERS * * * with the Statutory Power of Sale." The mortgage was recorded in the land evidence records of the Town of Foster on February 4, 2007.

On April 2, 2007, New Century filed for bankruptcy in the United States Bankruptcy Court for the District of Delaware. On March 19, 2008, during the course of the bankruptcy proceedings, New Century filed a notice of rejection of executory contract regarding its membership agreement with MERS and its status as a MERS member.

Page 1015

Subsequently, on July 20, 2009, MERS, claiming to act as New Century's nominee, purportedly assigned the mortgage to UBS, recording the assignment in the land evidence records of Foster. However, on December 28, 2010, UBS assigned the mortgage to USA Residential. Once again, that assignment was recorded in the land evidence records of Foster. Thereafter, USA Residential and its loan servicer, Rushmore, commenced foreclosure proceedings against plaintiff. Apparently, a foreclosure sale took place on August 2, 2011.[2]

On August 11, 2011, plaintiff filed an action against defendants in the Superior Court, seeking injunctive relief and a declaration that the mortgage assignments were void and the foreclosure sale was invalid. The plaintiff also sought to quiet title to the property and enjoin defendants from instituting any further foreclosure or eviction actions. Attached to plaintiff's complaint were several documents, including copies of the note, mortgage, ...


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