Richard H. Boucher
Kevin E. Sweet.
County Superior Court KC 98-1065 Kent County Superior Court
Plaintiff: Lisa A. Geremia, Esq.
Defendant: Frederick A. Costello, Esq.
Present: Suttell, C.J., Goldberg, Robinson, and Indeglia, JJ.
Gilbert V. Indeglia Associate Justice.
defendant, Kevin E. Sweet (defendant or Sweet), appeals the
grant of summary judgment in favor of the plaintiff, Richard
H. Boucher (plaintiff or Boucher), in the amount of $48,
155.35, plus interest, and counsel fees of $3, 237. This case
came before the Supreme Court on September 28, 2016, 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 of counsel and reviewing
the memoranda submitted on behalf of the parties, we are
satisfied that cause has not been shown. Accordingly, we
shall decide the appeal at this time without further briefing
or argument. For the reasons set forth herein, we affirm the
judgment of the Superior Court.
November 15, 1994, Sweet executed a promissory note to
Boucher in the amount of $80, 000, secured by a mortgage on
real estate at 54 New London Avenue, West Warwick, Rhode
Island. Sweet later defaulted on the note and Boucher
commenced foreclosure proceedings on the real estate.
advertised notice of the public sale in the Kent County Daily
Times. The sale's terms required payment of an $8, 000
deposit at the time of sale, payment of the balance within
thirty days after the sale, and an agreement encompassing the
terms of sale (sale agreement) to be signed by the successful
bidder. Additionally, pursuant to the sale's terms, the
property's sale was "subject to all taxes,
assessments, mortgages, any prior encumbrances and other
encumbrances * * *." The foreclosure sale was held at a
public auction on January 7, 1997. Boucher, the only bidder,
purchased the property for $35, 000; however, he did not pay
the $8, 000 deposit or sign the sale agreement.
December 1998, Boucher brought an action against Sweet in the
Kent County Superior Court to collect the deficiency on the
note, plus interest, attorney's fees, and costs. Sweet
filed an answer; and, on September 3, 1999, Boucher moved for
summary judgment. In his motion, Boucher argued that no issue
of material fact existed because Sweet acknowledged that he
executed and delivered the note to Boucher, he defaulted on
the note, and he still owed Boucher the amount claimed.
September 30, 1999, a justice of the Kent County Superior
Court granted Boucher's motion for summary judgment in
the amount of $55, 532.16, plus interest, attorney's
fees, and costs. Sweet
subsequently moved to vacate the judgment, arguing that he
never received Boucher's motion, supporting memorandum,
or notice of the hearing on the motion. In August 2000, a
hearing justice denied Sweet's motion to vacate the
after further motion by Sweet, a second justice agreed to
vacate the summary judgment and rehear Boucher's motion.
In opposition, Sweet maintained that the disparity between
the property's fair market value of $90, 000 and the
foreclosure sale price of $35, 000 was a factor in
determining if an impropriety existed in the foreclosure
sale. Sweet also argued that
Boucher's violations of the terms of sale-namely, his
failure to pay the $8, 000 deposit and sign the sale
agreement-were improprieties in the sale. He further
contended that Boucher's attempt to collect the unpaid
real estate taxes, sewer taxes, and sewer fees violated the
terms of sale because the property was sold "subject to
hearing justice issued a bench decision, again granting
Boucher's motion for summary judgment. She found that
Boucher's failure to pay the $8, 000 deposit and sign the
sale agreement were not "the type of defect[s] in the
advertising, in the conducting of this foreclosure sale, that
would amount to fraud or collusion." The hearing justice
found the disparity between the appraisal values and the
foreclosure sale price insufficient to show an improper or
fraudulent sale. Although "[i]nadequacy of price may be
considered a factor in determining whether the foreclosure
sale was proper, " Sweet did not offer any evidence that
the manner in which the sale was advertised was deficient or
that Boucher fraudulently conducted the sale. The hearing
justice did find, however, that the property's low
purchase price included the property's unpaid taxes,
sewer fees, and sewer taxes. Thus, she ...