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Pimentel v. Deutsche Bank National Trust Co.

Supreme Court of Rhode Island

December 15, 2017

Juan Pimentel
v.
Deutsche Bank National Trust Company.

         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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