Fontaine v. U.S. Bank National Association, PC 2015-0216

• Decision Date: 15 May 2015
• Docket Number: PC 2015-1043,PC 2015-0126,PC 2014-6141,PC 2015-0216,PC 2015-0777,PC 2014-6140
• Court: Superior Court of Rhode Island
• Parties: GENE FONTAINE v. US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR GSR MORTGAGE LOAN TRUST 2004-8F, MORTGAGEPASS THROUGH CERTIFICATES, SERIES 2004-8F, ALIAS AND JOHN DOE, ALIAS ADILSON MONTEIRO v. US BANK, N.A., AS LEGAL TITLE TRUSTEE FOR TRUMAN 2013 SC3 TITLE TRUST, ALIAS AND JOHN DOE, ALIAS GONZALO LINARES BLANCA LINARES v. US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR THE HOLDERS OF THE SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-BC4, ALIAS, JOHN DOE, ALIAS LUIS MELGAR v. BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK SUCCESSOR TRUSTEE TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR THE HOLDERS OF SAMI TRUST II 2006-AR7 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-AR7, ALIAS THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK SUCCESSOR TRUSTEE TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR THE STRUCTURED ASSET MORTGAGE INVESTMENTS II TRUST, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR7, ALIAS, JOHN DOE, ALIAS CHRISTOPHER PEMENTAL v. THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE HOLDERS OF THE CERTIFICATES, FIRST HORIZON MORTGAGE PASS-THROUGH CERTIFICATES SERIES FHAMA 2004-AA5, ALIAS, JOHN DOE, ALIAS ROBIN MOOREHEAD v. US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-BC1, ALIAS, JOHN DOE, ALIAS

GENE FONTAINE
v.
US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR GSR MORTGAGE LOAN TRUST 2004-8F, MORTGAGEPASS THROUGH CERTIFICATES, SERIES 2004-8F, ALIAS AND JOHN DOE, ALIAS

ADILSON MONTEIRO
v.
US BANK, N.A., AS LEGAL TITLE TRUSTEE FOR TRUMAN 2013 SC3 TITLE TRUST, ALIAS AND JOHN DOE, ALIAS

GONZALO LINARES BLANCA LINARES
v.
US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR THE HOLDERS OF THE SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-BC4, ALIAS, JOHN DOE, ALIAS

LUIS MELGAR
v.
BANK OF NEW YORK MELLON, FKA THE BANK OF NEW YORK SUCCESSOR TRUSTEE TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR THE HOLDERS OF SAMI TRUST II 2006-AR7 MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-AR7, ALIAS THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK SUCCESSOR TRUSTEE TO JPMORGAN CHASE BANK, N.A. AS TRUSTEE FOR THE STRUCTURED ASSET MORTGAGE INVESTMENTS II TRUST, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR7, ALIAS, JOHN DOE, ALIAS

CHRISTOPHER PEMENTAL
v.
THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE HOLDERS OF THE CERTIFICATES, FIRST HORIZON MORTGAGE PASS-THROUGH CERTIFICATES SERIES FHAMA 2004-AA5, ALIAS, JOHN DOE, ALIAS

ROBIN MOOREHEAD
v.
US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF THE SPECIALTY UNDERWRITING AND RESIDENTIAL FINANCE TRUST, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-BC1, ALIAS, JOHN DOE, ALIAS

Nos. PC 2015-0216, PC 2015-0777, PC 2014-6141, PC 2014-6140, PC 2015-1043, PC 2015-0126

Superior Court of Rhode Island

May 15, 2015

Providence County Superior Court

For Plaintiff: John B. Ennis, Esq.

For Defendant: John S. McNicholas, Esq., Christine A. Murphy, Esq. David J. Pellegrino, Esq.

DECISION

VAN COUYGHEN, J.

These cases were consolidated pursuant to Super. R. Civ. P. 42 for the sole purpose of resolving the common issue concerning the applicability of G.L. 1956 § 34-27-3.2 to the subject mortgages. All of the above-captioned cases concern nearly identical motions for a temporary restraining order and a preliminary injunction on the ground that Defendants^[1]scheduled foreclosure sales of Plaintiffs'^[2] respective properties in contravention of § 34-27-3.2. That section requires a mortgagee to send a notice stating that the mortgagee cannot foreclose without first participating in a "mediation conference." Also before this Court are Defendants' motions to dismiss arguing that the subject mortgages are not subject to the requirements of § 34-27-3.2.

I

Facts and Travel

All of the above-captioned cases concern whether the Defendants are required to send a mediation notice pursuant to § 34-27-3.2(d) before foreclosing on the subject mortgages. For the purposes of this Decision, the parties have submitted a statement of agreed to facts. The relevant undisputed facts, as submitted by the parties, are as follows.

On July 15, 2013, § 34-27-3.2 was enacted with an effective date of September 13, 2013.^[3]The statute required that certain mortgagees send a written notice to mortgagors of the right to mortgage mediation prior to the initiation of foreclosure proceedings. Mortgagors that were in default in excess of 120 days were exempt from the notice requirements of the statute. It is undisputed that, as of September 13, 2013, each Plaintiff had failed to make at least four payments under the terms of the mortgage contract, and that these failures have not been subsequently cured. (Statement of Facts, ¶ 3.) Thus, pursuant to the 2013 version of § 34-27-3.2, Defendants were not obligated to send a mediation notice prior to initiating foreclosure.

On October 6, 2014, an amended version of § 34-27-3.2 became effective. Id. at ¶ 6. This amendment made a number of changes that are discussed infra. It is undisputed that Defendants mailed the requisite notice of foreclosure sale pursuant to § 34-27-4(b)^[4] after the effective date of the amended statute. Id. at ¶ 9. The parties also agree Defendants did not send a notice of the right to mediate pursuant to § 34-27-3.2(d) on or after the effective date of the amended statute.^[5] Id. at ¶ 8.

II

Standard of Review

1

Preliminary Injunction

It is well-settled that this Court, in deciding whether to issue an injunction, considers whether the moving party "(1) has a reasonable likelihood of success on the merits; (2) will suffer irreparable harm without the requested relief; (3) has the balance of equities in his or her favor; and (4) has shown that the requested injunction will maintain the status quo." Pucino v.

Uttley, 785 A.2d 183, 186 (R.I. 2001) (citing Iggy's Doughboys, Inc. v. Giroux, 729 A.2d 701, 705 (R.I. 1999)). When balancing the equities, the Court must also consider the public interest in granting or denying injunctive relief. In re State Emps.' Unions, 587 A.2d 919, 925 (R.I. 1991). The moving party is not required to establish a certainty of success when proving the likelihood of success on the merits, but instead is merely required to make out a prima facie case. DiDonato v. Kennedy, 822 A.2d 179, 181 (R.I. 2003) (citing Fund for Cmty. Progress v. United Way of Se. New England, 695 A.2d 517, 521 (R.I. 1997)). Further, the function "'of a preliminary injunction is not ordinarily to achieve a final and formal determination of the rights of the parties or of the merits of the controversy, but is merely to hold matters . . . in status quo, and in the meantime to prevent the doing of any acts whereby the rights in question may be irreparably injured or endangered.'" Fund for Cmty. Progress, 695 A.2d at 521 (quoting Coolbeth v. Berberian, 112 R.I. 558, 564, 313 A.2d 656, 659 (1974)).

2

Motion to Dismiss

"The sole function of a motion to dismiss is to test the sufficiency of the complaint." Palazzo v. Alves, 944 A.2d 144, 149 (R.I. 2008) (citation omitted). Looking at the four corners of the complaint, this Court examines that pleading and assumes that the allegations contained in a plaintiff's complaint are true, viewing them in a light most favorable to the plaintiff. Barrette v. Yakavonis, 966 A.2d 1231, 1234 (R.I. 2009). Our Supreme Court has noted that the pleading rules are to be liberally interpreted so that "cases in our system are not . . . disposed of summarily on arcane or technical grounds."^[6] Konar v. PFL Life Ins. Co., 840 A.2d 1115, 1118 (R.I. 2004) (citation omitted).

While the pleading does not need to include the ultimate facts to be proven or the precise legal theory upon which the claims are based, the complaint is required to provide the opposing party with fair and adequate notice of any claims being asserted. Barrette, 966 A.2d at 1234. The goal is to give defendants sufficient notice of the type of claim being asserted against them. See Konar, 840 A.2d at 1119; see also Berard v. Ryder Student Transp. Servs., Inc., 767 A.2d 81, 85 (R.I. 2001). Consequently, "[a] motion to dismiss is properly granted 'when it is clear beyond a reasonable doubt that the plaintiff would not be entitled to relief from the defendant under any set of facts that could be proven in support of the plaintiff's claim.'" Woonsocket Sch. Comm. v. Chafee, 89 A.3d 778, 787 (R.I. 2014) (citation omitted).

III

Analysis

A

The Statutory Framework

1

The 2013 Statute

As stated above, § 34-27-3.2 was first enacted on July 15, 2013 and became effective on September 13, 2013 (the 2013 Statute). This statute mandated that, subject to some limitations, a mortgagee must notify the mortgagor that the mortgagee cannot foreclose without first participating in a mediation conference (the mediation notice). Specifically, the 2013 Statute stated that "[w]hen a mortgage is not more than one hundred twenty (120) days delinquent, the mortgagee . . . shall provide to the mortgagor written notice . . . that the mortgagee may not foreclose on the mortgaged property without first participating in a mediation conference." Pursuant to subsection (g), this mediation conference must take place "not later than sixty (60) days following the mailing of the [mediation] notice." The 2013 Statute also made clear that the "[f]ailure of the mortgagee to comply with the requirements of this section shall render the foreclosure void . . . ." Sec. 34-27-3.2(m). Consequently, the present mortgages were exempt from the 2013 Statute since they were more than 120 days delinquent on September 13, 2013 (the effective date of the 2013 Statute).

2

The 2014 Statute

However, the 2013 Statute was amended on July 8, 2014 with an effective date of October 6, 2014 (the 2014 Statute). See § 34-27-3.2, as amended by P.L. 2014, ch. 543, § 1. The 2014 Statute kept many of the original requirements with two relevant changes. First, the 2014 Statute removed language that had limited the scope of the 2013 Statute to only those mortgages not more than 120 days delinquent. Instead, subsection (d) of the 2014 Statute states that "[t]he mortgagee shall, prior to initiation of foreclosure of real estate pursuant to § 34-27-4(b), provide to the mortgagor written notice . . . that the mortgagee may not foreclose on the mortgaged property without first participating in a mediation conference." Section 34-27-4(b) also dictates that a mortgagee initiates a non-judicial foreclosure proceeding by sending a notice of sale to a mortgagor.^[7]

Second, the 2014 Statute imposes monetary penalties against mortgagees for noncompliance. If a mortgagee fails to mail the required mediation notice within 120 days after the date of default, it must pay a penalty at the rate of $1000 per month starting on the 121^st day after the date of default. Sec. 34-27-3.2(d)(1). However, the statute also specifies that "any penalties assessed under this subsection for any failure of any mortgagee to provide notice as provided herein during the period from September 13, 2013, through the effective date of this section [October 6, 2014] shall not exceed the total...