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Boucher v. Sweet

Supreme Court of Rhode Island

October 28, 2016

Richard H. Boucher
v.
Kevin E. Sweet.

         Kent County Superior Court KC 98-1065 Kent County Superior Court

          For Plaintiff: Lisa A. Geremia, Esq.

          For Defendant: Frederick A. Costello, Esq.

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

          OPINION

          Gilbert V. Indeglia Associate Justice.

         The 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.

         I

         Facts and Travel

         On 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.

         Boucher 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.

         In 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.

         On 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.[1] 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 judgment.

         Ultimately, 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.[2] 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 all taxes."

         The 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 ...


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