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Izzo v. Victor Realty

Supreme Court of Rhode Island

February 18, 2016

John Izzo et al.
v.
Victor Realty et al.

Providence County Superior Court (PC 13-4518), Associate Justice Luis M. Matos.

For Plaintiffs: Maurene Souza, Esq., William T. Carline III, Esq.

For Defendants: Patrick T. Conley, Esq.

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

OPINION

William P. Robinson III, Associate Justice.

The defendant, Victor Realty, [1] appeals from a Providence County Superior Court order vacating an August 9, 2013 final decree which barred the rights of redemption of the plaintiffs-viz., John Izzo and his mother, Carmel Izzo.[2] Victor Realty contends that the trial justice erred in determining that the plaintiffs were not provided with adequate notice of the petition, filed by Victor Realty, to foreclose the plaintiffs' rights of redemption with respect to property located at 93-105 Manton Avenue in Providence (the Property). This case came before the Supreme Court 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 a close review of the record and careful consideration of the parties' arguments (both written and oral), we are satisfied that cause has not been shown and that this appeal may be decided at this time. For the reasons set forth in this opinion, we vacate the judgment of the Superior Court.

I

Facts and Travel

It is undisputed that, prior to the final decree barring plaintiffs' rights of redemption, John was the owner of the Property and his mother held a mortgage on the Property. The complaint in the instant case reflects the following facts with respect to the Property. On May 3, 2012, after the failure to pay sewer fees, the Property was put up for sale at a tax sale and defendant purchased it. Subsequently, on May 6, 2013 (in a separate action from the one being considered on this appeal), defendant filed a petition in the Providence County Superior Court to foreclose plaintiffs' rights of redemption to the Property (the Petition), pursuant to G.L. 1956 § 44-9-25. Neither plaintiff responded to the Petition in accordance with § 44-9-29. On August 9, 2013, a hearing was held on defendant's Petition; it is undisputed that plaintiffs were not given notice of this hearing. A final decree was entered following the hearing, which final decree foreclosed plaintiffs' rights of redemption to the Property. The issue in the action before us is the adequacy of notice of the Petition as it pertains to John and Carmel.

The plaintiffs filed the complaint commencing the instant case on September 9, 2013, pursuant to § 44-9-24.[3] They sought entry of an order vacating the final decree of August 9, 2013, which had foreclosed their rights of redemption; due to what they alleged was inadequate notice of the Petition. On March 6, 2014, a bench trial took place before a justice of the Superior Court.

At the bench trial both plaintiffs testified. Carmel testified that she gave John the money to buy the Property and held a mortgage on the Property. She further testified that she lived in Florida for some portion of the year; but, on cross-examination, she conceded that she was a part-time resident of 20 Woodlake Avenue in Johnston. She also conceded on cross-examination that, on June 18, 2013-the date notices of the Petition arrived by certified mail to her Johnston address and the accompanying certified mail receipts were signed-she was living at the Johnston address; she stated, "I was definitely in Rhode Island June 18th, I will concede to that." Carmel acknowledged in her testimony that another son, Carl, signed the certified mail receipts when the notices were delivered to the Johnston address.[4] Carmel also explained in her testimony that the notices were addressed to her husband and herself but that her husband had passed away before the notices were sent. It was her testimony that Carl never gave her those notices.

It was Carmel's further testimony that, prior to the commencement of the instant action, she was not aware of the Petition or the original tax sale, despite the fact that notice of both had been sent to her Johnston address. She added that, other than the two certified mailings signed for by Carl, she had received no other correspondence of any kind from Victor Realty. She also testified that she would have paid the sewer fees if she had been aware of the pending tax sale; she added that she was "financially able to do so."

The certified mail receipts entered as exhibits at trial indicate that notice of the Petition was also sent to John by certified mail with return receipts requested at both 93 Manton Avenue and 105 Manton Avenue. John testified that, on June 20, 2013, his employee, Maria Mayen, signed both of the certified mail receipts relative to the notices of the Petition that were sent to him. He indicated that he was not informed of the notices, but he further stated that, on June 20, 2013, he discovered them "behind the cash register." In his testimony, John acknowledged that, on June 21, 2013, he placed a phone call to counsel for Victor Realty to inquire about the redemption amount for the Property; he acknowledged that he was then provided with that information by fax. When specifically asked at trial if he had notice of the Petition, John responded in the affirmative.

Despite conceding that he had actual notice of the Petition, John acknowledged in his testimony at trial that he did not file an answer to the Petition nor did he make an offer to redeem. He did state that he tried to come up with the money to redeem the Property on his own, without "bringing [his] mother into it." It was his further testimony that he never heard from counsel for Victor Realty again after he was provided with the redemption amount and that he only discovered that his right of redemption had been foreclosed when the locks on the building were changed and "all the machinery disappeared."

John testified that, even though he had actual notice of the Petition, he "didn't know the ramification[s] of it." However, on recross-examination by counsel for Victor Realty, John was asked the following question:

"Okay. Now, Mr. Izzo, you're certainly literate, as a businessman, a successful businessman.
"The citation [(i.e., the notices sent to John and signed for on June 20, 2013)] that you received states as follows. You notice what I've underlined for you on your copy, that if you desire to make any objection or defense to said petition you or your attorney must file a written appearance and answer under oath setting forth clearly and specifically your objection or defense. And it says further on down, Unless your appearance is filed, which is a written filing, by or for you, your default would be recorded and said petition will be taken as confessed, meaning the request of the petition to foreclose will be confessed and granted. So that language is fairly straightforward and simple. ...

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