United States District Court, D. Rhode Island
U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Registered Holders of Aegis Asset Backed Securities Trust, Mortgage Pass-Through Certificates, Series 2005-5, Plaintiff,
GILBERT LANTINI II, Defendant.
MEMORANDUM AND ORDER
WILLIAM E. SMITH, CHIEF JUDGE
the Court is Plaintiff's Motion for Summary Judgment (ECF
No. 12). This is a judicial foreclosure action concerning the
property located at 2075 Plainfield Pike, Johnston, Rhode
Island, acquired by Defendant Gilbert Lantini II in 2004. In
the face of Defendant's opposition, the scope of
Plaintiff's motion has morphed in substance if not
form. Plaintiff now seeks summary judgment only
on Count I, which seeks a declaratory judgment that the Rhode
Island Foreclosure Mediation Statute, R.I. Gen. Laws §
34-27-3.2, does not apply to this action. For the reasons
stated herein, Plaintiff's Motion for Summary Judgment is
GRANTED IN PART.
judgment may be granted if the movant demonstrates there is
an “absence of any genuine issue of material
fact.” Borges ex rel. S.M.B.W. v.
Seranno-Isern, 605 F.3d 1, 5 (1st Cir. 2010)(citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
If the movant satisfies this burden, the nonmovant must
produce “significant[ly] probative” evidence
demonstrating that ”a trier of fact could reasonably
resolve that issue in [its] favor.” Id. If the
nonmovant fails to do so, summary judgment is appropriate.
to 28 U.S.C. § 2201, Plaintiff seeks a declaration that
R.I. Gen. Laws § 34-27-3.2 is inapplicable here. The
statute's express purpose is to “provid[e] a
uniform standard for an early HUD-approved, independent
counseling process in owner-occupied principal
residence mortgage foreclosure cases, [so] the chances
of achieving a positive outcome for homeowners and lenders
will be enhanced. ” R.I. Gen. Laws § 32-27-3.2(b)
(emphasis added). Thus, the statute's mandatory mediation
provisions are triggered only if the property being
foreclosed upon is a “principal residence” or
“primary dwelling.” Id., id. §
Plaintiff argues that the Defendant has admitted that the
Plainfield Pike property is not his principal
residence. See Compl. ¶¶ 23-27, ECF No. 1;
Ans. ¶¶ 23-27, ECF No. 8. In opposition, the
Defendant produces no evidence from which the Court might
reasonably conclude that this fact is genuinely disputed. The
Defendant instead noted a technical error, arguing that
Plaintiff's pleadings incorrectly requested declaratory
relief under an inapplicable Rhode Island statute rather than
28 U.S.C. § 2201. See Def's Opp'n to Mot. for
Summ. J. 2, ECF No. 22-1. The Defendant acknowledged,
however, that relief under 28 U.S.C. § 2201 would be
proper, see id. at 1-2, and Plaintiff corrected this flaw in
its Amended Complaint. See Am. Compl. ¶ 25, ECF No. 30.
The Defendant has made no attempt to muster any facts to
rebut the Plaintiff's evidence.3 The Court therefore
finds that R.I. Gen. Laws § 34-27-3.2, including the
requirements of subsection (d) of that statute, are
inapplicable here and that the Plaintiff is entitled to
summary judgment on Count I of the Amended Complaint. See
Borges, 605 F.3d at 5-6.
foregoing reasons, Plaintiff's Motion for Summary
Judgment (ECF No. 12) is GRANTED IN PART. With respect to
Count I of the Plaintiff's Amended Complaint, the Court
finds that, to proceed with a foreclosure sale in accordance
with the requirements of R.I. Gen. Laws § 34-27-4(b),
the Plaintiff is not required to send a notice of mediation
conference to the Defendant because the Plainfield Pike
property was not his principal residence during the relevant
default period. The Plaintiff's Motion for Summary
Judgment is otherwise DENIED.
 Plaintiff's motion initially
sought summary judgment on all three counts of the Complaint.
In response to the Defendant's opposition memorandum,
Plaintiff's sought-and the Court allowed- leave to file
an Amended Complaint (ECF No. 27). In its reply memorandum,
Plaintiff withdrew its arguments for summary judgment on all
counts except for Count I. See Pl.'s Reply to Def.'s
Opp'n to Pl.'s Mot. for Summ. J. 2, ECF No.
 The Amended Complaint's
allegations are identical to those in the original Complaint.
The Court therefore construes Plaintiff's motion as a
request for summary judgment on Count I of the amended
 Defendant has not answered the Amended
Complaint. His Answer to the original pleadings is
nevertheless admissible evidence. See Huey v. Honeywell,
Inc.,82 F.3d 327, 333 (9th Cir. 1996)(“Despite
the fact that [Defendant] later amended its answers to deny
this allegation, [Defendant]'s admissions are still
admissible evidence, though not conclusive, like any other
extrajudicial admission made by a party or its
agent.”). Defendant did not object to Plaintiff's
Motion to Amend, and has had ample opportunity to seek leave
to expand upon his objections to ...