Providence
County Superior Court (PC 11-357) Associate Justice Richard
A. Licht
For
Plaintiff: John B. Ennis, Esq
For
Defendant: Harris K. Weiner, Esq
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
Indeglia, JJ.
OPINION
GILBERT V. INDEGLIA JUSTICE
The
plaintiff, Juan Pimentel (Pimentel or plaintiff), appeals
from the Superior Court's entry of summary judgment in
favor of the defendant Deutsche Bank National Trust Company
(Deutsche Bank as Trustee or defendant). This case came
before the Supreme Court for oral argument on November 7,
2017, 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 carefully considering the
written and oral submissions of the parties, we are satisfied
that this appeal may be resolved without further briefing or
argument. For the reasons set forth in this opinion, the
judgment of the Superior Court is affirmed.
I
Facts and Travel
This
Court has previously considered circumstances similar to the
facts giving rise to Pimentel's appeal regarding
residential mortgages in the wake of the 2008 foreclosure
crisis.[1]On February 4, 2005, Pimentel executed a
promissory note for $255, 850 in favor of Novelle Financial
Services (Novelle). The note was secured by a mortgage to
Novelle on certain property located at 158-160 Briggs Street
in Providence. The mortgage contained a power-of-sale clause.
Four days later, Novelle assigned the mortgage to Deutsche
Bank as Trustee for the Holders of Ixis Real Estate Capital
Trust 2005-HE3 Mortgage Pass-Through Certificates, Series
2005-HE3. The assignment was notarized on February 8, 2005,
and recorded on February 9, 2005.
Three
years later, in February 2008, Pimentel defaulted on the
mortgage and he has made no further payments on the note. On
December 31, 2009, Novelle issued a correction to the 2005
mortgage assignment to revise a faulty acknowledgement. The
corrective assignment was recorded in December 2010. Bank of
America, N.A.[2] serviced Pimentel's loan until Select
Portfolio Servicing, Inc. (SPS) began servicing it on July
16, 2012. According to defendant, the note was endorsed in
blank[3] on an allonge[4] by IMPAC Funding Corporation
(Impac) d/b/a Novelle. The plaintiff contends that the note
was not endorsed at all because defendant provided unendorsed
copies of the note both in correspondence with plaintiff and
in bankruptcy proceedings.
Deutsche
Bank as Trustee scheduled a foreclosure sale for February 9,
2011. In response, Pimentel filed a complaint in the instant
action on January 20, 2011, in Providence County Superior
Court, seeking injunctive and declaratory relief, an order to
quiet title, as well as compensatory damages for the
purported illegal foreclosure action. Pimentel's
complaint alleged that Deutsche Bank as Trustee was unable to
foreclose on the mortgage because it did not hold
Pimentel's note. On the same day, the Superior Court
issued a temporary restraining order enjoining the
foreclosure sale.
On June
23, 2015, defendant filed a motion for summary judgment
pursuant to Rule 56 of the Superior Court Rules of Civil
Procedure. The defendant attached three affidavits in support
of its motion. One affidavit was from Mark Syphus, a
document-control officer for SPS, who attested that he had
access to Pimentel's loan records. The affidavit provided
that Deutsche Bank as Trustee held the note, and a copy of
the note was attached to the affidavit. In addition to the
note, the following four documents were attached to
Syphus's affidavit: a copy of the mortgage, a copy of the
assignment of the mortgage, a copy of the corrective
assignment, and a copy of the loan's payment history,
evidencing Pimentel's default. The defendant also
provided an affidavit from its attorney, to which
plaintiff's more responsive answers to interrogatories
were attached.
Pimentel
objected to the motion, arguing that genuine issues of
material fact existed to support his argument that Deutsche
Bank as Trustee did not own the note or the mortgage, and, in
fact, was a nonexistent entity. In support of his objection,
Pimentel filed a number of exhibits with the Superior Court,
including four copies of the note that were given to him at
different times and were purportedly not endorsed. Pimentel
also filed a number of online records demonstrating the dates
that Novelle and Impac were terminated as entities, as well
as information regarding the Ixis Real Estate Capital Trust
2005-HE3.
On
January 25, 2016, a Superior Court justice heard arguments on
defendant's motion for summary judgment and ultimately
granted it. The hearing justice determined that defendant
need be only the mortgagee in order to foreclose on a
mortgage in Rhode Island, and that it need not be the note
holder as well. However, the hearing justice did remark that
Deutsche Bank as Trustee had provided an endorsed copy of the
note, supported by an affidavit attesting to the fact that
defendant held the note. The hearing justice then determined
that the 2009 corrective assignment was valid, relying on a
Massachusetts Superior Court decision[5] holding that a corrective
assignment is valid and binding, and also referencing
defendant's "competent evidence of a valid
assignment." Finally, the hearing justice concluded that
defendant was in fact the mortgagee and was entitled to
foreclose on the mortgage, and he granted the motion for
summary judgment. The plaintiff timely appealed to this
Court.
II
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