Providence County Superior Court
For Plaintiff: Keven A. McKenna, Esq.
For Defendant: Jeffrey M. Thomen, Esq.
Before this Court is Defendant West End Trust 2012-1's (Defendant) Motion for Summary Judgment pursuant to Rule 56 of the Rhode Island Superior Court Rules of Civil Procedure. Plaintiff, 113-115 Bellingham Street Realty Redemption Company (Plaintiff), filed a declaratory judgment action petitioning this Court to quiet title to certain real property located at 113-115 Bellingham Street, Woonsocket, Rhode Island. Previous to foreclosure, Plaintiff was the record owner of said property. This action arises out of Plaintiff's challenge to the validity of Defendant's mortgage interest in the property, which Defendant acquired via assignment, and the foreclosure which occurred pursuant to that mortgage
Facts and Travel
David J. Gregoire (Gregoire or Borrower) executed a note in favor of Equity One, Inc. d/b/a Equity One Mortgage Company (Equity One) for $262, 600 on April 13, 2007. To secure the note, Borrower contemporaneously executed a mortgage on certain real property located at 113-115 Bellingham Street in Woonsocket, Rhode Island. Gregoire was the borrower and original mortgagor relative to the mortgage. The mortgage names Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Equity One and provides MERS and its "successors and assigns" with the statutory power of sale. The mortgage was executed on April 13, 2007 and recorded on April 16, 2007 in Woonsocket at Book 1648 on Page 270. On August 3, 2012, Bayview Loan Servicing executed an assignment of this mortgage in favor of Bayview Opportunity Master Fund. Also, on August 3, 2012, Bayview Opportunity Master Fund executed an assignment of mortgage in favor of Defendant. It was not until April 16, 2013, however, that MERS executed an Assignment of Mortgage to Bayview Loan Servicing. On April 22, 2013, all three Assignments of Mortgage were recorded together in the Land Records in Woonsocket at Book 2028, starting on Page 44. The Defendant points out that on November 30, 2010-years before any of the assignments-Bayview Loan Servicing executed a loan modification agreement with Borrower.
It is undisputed that Borrower defaulted on the terms of the loan obligation in September 2013. Defendant sent Borrower a Notice of Default on October 21, 2013, including information of applicable cure periods. After Borrower failed to cure, Defendant sent Borrower a Notice of Default and Acceleration. On March 18, 2014, Gregoire conveyed to Plaintiff the mortgaged property by quit claim deed. At the time of the transfer, the mortgage in favor of Bayview Loan Servicing, as well as the mortgage assignment, were of record; accordingly, the transferee took the property subject to the mortgage and mortgage assignment. Plaintiff subsequently brought action in this Court seeking declaratory judgment against Defendant. Defendant contends they are now entitled to foreclose and move for summary judgment in Defendant's favor.
In support of their Motion for Summary Judgment, Defendant contends that they are entitled to judgment as a matter of law because (1) it is undisputed that Defendant is the mortgagee by assignment; (2) as a matter of law, Defendant is able to foreclose on the property in accordance with statutory power of sale as contained in the assigned mortgage instrument; (3) as a matter of law, the Plaintiff lacks standing to challenge the Assignments of Mortgage since the Plaintiff was not a party interested in the assignment, as it was neither the assignor or the assignee. In support of these arguments, Defendant submits the affidavit of Ana G. Castro, asset manager for Defendant, authenticating several exhibits. Through Ms. Castro's notarized affidavit and exhibits attached thereto, the Defendants establish the travel of the note from Bayview Loan Servicing to Bayview Opportunity Master Fund to Defendant. The Castro affidavit, however, fails to establish whether Bayview Loan Servicing was actually the holder of the mortgage at the time it transferred the mortgage to Bayview Opportunity Master Fund. Namely, the assignment from MERS to Bayview Loan Servicing occurred after the other two assignments, and this apparent break in the chain is not explained by any other documentation provided by Ms. Castro. Plaintiff objects to Defendant's Motion and contends that this Motion for Summary Judgment should be denied because of this break in the chain of assignments. Moreover, Plaintiff asserts that the assignment to Defendant is void as the trust was closed at the time of the assignment.
Standard of Review
It is well settled that when deciding a motion for summary judgment, '"the Court views the evidence in the light most favorable to the nonmoving party."' Mruk v. Mortg. Elec. Registration Sys, Inc., 82 A.3d 527, 532 (R.I. 2013) (quoting Beauregard v. Gouin, 66 A.3d 489, 493 (R.I. 2013)). "Summary judgment is appropriate when no genuine issue of material fact is evident from 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any, ' and the motion justice finds that the moving party is entitled to prevail as a matter of law." Id. (quoting Swain v. Estate of Tyre, 57 A.3d 283, 288 (R.I. 2012)). '"The nonmoving party bears the burden of proving by competent evidence the existence of a disputed ...