Malinou v. Seattle Sav. Bank

• Decision Date: 07 May 2009
• Docket Number: No. 2008-137-Appeal.,2008-137-Appeal.
• Citation: 970 A.2d 6
• Parties: Martin MALINOU, Individually and as Executor of the Estate of Etta E. Malinou v. SEATTLE SAVINGS BANK.
• Court: Rhode Island Supreme Court

970 A.2d 6

Martin MALINOU, Individually and as Executor of the Estate of Etta E. Malinou v. SEATTLE SAVINGS BANK.

No. 2008-137-Appeal.

Supreme Court of Rhode Island.

May 7, 2009.

Martin S. Malinou, Esq., Plaintiff Pro Se.

Katherine J. McAllister, Esq., for Defendant.

Present: GOLDBERG, Acting C.J., FLAHERTY, SUTTELL, ROBINSON, JJ., and WILLIAMS, C.J. (ret.).

OPINION

Acting Chief Justice GOLDBERG, for the Court.

This case came before the Supreme Court on April 7, 2009, on an appeal by the plaintiff, Martin Malinou (plaintiff or Malinou), pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After hearing the arguments of counsel and examining the memoranda submitted by the parties, we are of the opinion that cause has not been shown and we shall decide this appeal without further briefing and argument. We affirm the judgment of the Superior Court.

Facts and Travel

By instituting this case, plaintiff was able to delay, for many years, a foreclosure action instituted by defendant, Seattle Savings Bank (defendant), on a mortgage secured by property located at 334 Smith Street in Providence (property). The plaintiff currently owns the property, resides there, and operates his law practice on the premises.¹ The plaintiffs deceased mother (decedent) owned the property from 1945 until her death in 2003, at which point plaintiff acquired title. In November 1991, the decedent executed a Home Equity Conversion Adjustable Rate Note with Rhode Island Housing and Mortgage Finance Corporation (RIHMFC) that was evidenced by a Home Equity Conversion Loan Agreement and was secured by a mortgage (mortgage). Together, these documents created a so-called reverse mortgage,² and imposed certain obligations on the decedent that, if unfulfilled, permitted the lender to demand immediate payment of all outstanding principal and accrued interest, plus costs and expenses.

Such an event occurred on August 16, 2000, when RIHMFC demanded payment in full and instituted foreclosure proceedings. In response, decedent filed a Chapter 13 petition that resulted in a plan that required her to reimburse RIHMFC for property taxes; she failed to do so. The Bankruptcy Court approved an amended plan; however, after decedent again failed to comply with the plan, the trustee filed a motion to dismiss the case.³

The decedent died in January 2003, and the bankruptcy case was dismissed the next month. On April 30, 2003, RIHMFC assigned the mortgage to defendant as part of a bulk assignment of 359 reverse mortgages, and the transfer was recorded in the Office of the Recorder of Deeds in Providence. On June 30, 2003, defendant notified plaintiff that it held the mortgage and demanded payment in full. The plaintiff failed to make any payments.

In August 2003, defendant notified plaintiff that foreclosure was scheduled to take place on October 15, 2003. Five days before the foreclosure date, plaintiff filed a Chapter 13 bankruptcy proceeding; on March 2, 2005, he filed a second Chapter 13 bankruptcy proceeding. After a series of motions, dismissals, and procedural wranglings, defendant finally scheduled a foreclosure for January 12, 2006. The plaintiff again sought and was granted a temporary restraining order that barred the foreclosure. The plaintiff also instituted this action by filing a complaint for equitable relief in the Superior Court.⁴

On January 18, 2006, a hearing on the preliminary injunction and a trial on the merits were consolidated for trial. At a subsequent hearing, plaintiff moved to amend his complaint and asked "at a further time [to] be allowed to get the rest of this information from Fannie Mae." Specifically, in its response to discovery, defendant forwarded a letter dated April 10, 2003 from Fannie Mae to RIHMFC,⁵ but the second page of the letter, with the signature of the author, was not included. The letter addressed the bulk assignment of mortgages from RIHMFC to defendant, including the mortgage in question.⁶

On April 5, 2006, the trial justice dismissed plaintiff's complaint in its entirety and judgment was entered on all counts in favor of defendant. The plaintiff failed to timely appeal from that judgment. Rather, almost a year later, on March 29, 2007, plaintiff moved to depose the author of the letter from Fannie Mae under Rule 27(b) of the Superior Court Rules of Civil Procedure, and he also filed a motion under Rule 60(b)(2) of the Superior Court Rules of Civil Procedure seeking to set aside the judgment and for a new trial.⁷ On November 16, 2007, the trial justice denied both motions and directed that the April 5, 2006 judgment be entered as the final judgment.⁸ On December 5, 2007, plaintiff filed an appeal with this Court and asserted a number of issues, many of which are not preserved for appellate review.

The record on appeal discloses that since the entry of judgment, several other proceedings have taken place that bear on the instant case and require a brief synopsis. On December 8, 2006, because of the impending foreclosure sale, plaintiff again sued to enjoin defendant from proceeding with the sale. The case was dismissed, and the Superior Court authorized defendant to proceed with the sale on December 12, 2006. Undaunted, plaintiff filed his third Chapter 13 bankruptcy proceeding on December 11, 2006, one day before the scheduled foreclosure sale; an automatic stay was denied. The United States District Court for the District of Rhode Island and the First Circuit Court of Appeals affirmed the decision of the bankruptcy judge. The bankruptcy case was dismissed, and again the dismissal was affirmed. On June 13, 2007, defendant finally foreclosed on the mortgage; however, plaintiff failed to vacate the premises, and eviction proceedings were instituted in the Sixth Division of the state District Court. That case was ordered stayed pending this appeal. "We are more than persuaded that * * * [plaintiff has] had [his] day in court—and then some. The time has come for this litigation to end." Northern Trust Co. v. Zoning Board of Review of Westerly, 899 A.2d 517, 520 (R.I.2006) (mem.).

Analysis

Timeliness of First Appeal

Before we address the merits in this case, we must determine whether plaintiffs appeal from the judgment was timely. In accordance with Article I, Rule 4(a) of the Supreme Court Rules of Appellate Procedure, a notice of appeal must be filed "within twenty (20) days of the date of the entry of the judgment." We have held that "the twenty-day appeal time commence[s] to run from the first day following the day when the first valid appealable order was entered." Kay v. Menard, 727 A.2d 665, 666 (R.I.1999) (citing Article I, Rules 4(a) and 20(a) of the Supreme Court Rules of Appellate Procedure). Because the April 5, 2006 judgment was a valid judgment of the Superior Court, and because plaintiff did not file a notice of appeal within twenty days of that date, the appeal is untimely and is not properly before this Court. Accordingly, we decline to reach the merits of the issues raised and shall limit our review to plaintiffs appeal from the order denying the motion to vacate the judgment.

Motion to Vacate the Judgment

Before this Court, plaintiff contends that the trial justice abused her discretion by refusing to vacate the judgment. Rule 60(b)(2) allows a trial justice to relieve a party from judgment if the party has "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." In passing on the correctness of a decision under Rule 60(b)(2), this Court's review is limited to an examination of the decision to determine "the correctness of the order granting or denying the motion, not the correctness of the original judgment." Greenfield Hill Investments, LLC v. Miller, 934 A.2d 223, 224 (R.I.2007) (mem.) (citing McBurney v. Roszkowski, 875 A.2d 428, 435 (R.I.2005)). A motion to vacate a judgment is left to the sound discretion of the trial justice and such a ruling will not be disturbed absent an abuse of discretion. Id. (citing Medeiros v. Anthem Casualty Insurance Group, 822 A.2d 175, 178 (R.I.2003)). Specifically, with regard to Rule 60(b)(2), a motion to vacate should not be granted unless "(1) the evidence is material enough that it probably would change the outcome of the proceedings and (2) `the evidence was not discoverable at the time of the original hearing by the exercise of ordinary diligence.'" Medeiros, 822 A.2d at 178 (quoting Forcier v. Forcier, 558 A.2d 212, 213 (R.I.1989)). Even if both of these requirements are met, the motion must be made "within a reasonable time and not more than one year after the judgment." Flynn v. Al-Amir, 811 A.2d 1146, 1150 (R.I.2002). "[U]ndue delay may bar relief, even if the motion is made before the one-year period has expired." Sansone v. Morton Machine Works, Inc., 957 A.2d 386, 396 (R.I. 2008) (quoting Waldeck v. Domenic Lombardi Realty, Inc., 425 A.2d 81, 83 (R.I. 1981)). In any event, one year is the extreme limit for a viable motion under Rule 60(b). Id. (citing Tierney v. Conley, 590 A.2d 865, 866 (R.I.1991)). Here, plaintiff asserted that he had new evidence, which included hypothetical testimony from Fannie Mae, and also claimed that Fannie Mae's alleged "unethical corporate culture," which became public because of federal investigations into the organization, were grounds for a new trial.⁹

The trial justice first addressed the timing of the Rule 60(b)(2) motion. Although she noted that the motion was made within the one-year time-frame, the trial justice nonetheless suggested that the delay was unreasonable because the motion was filed one week short of the one-year deadline, and plaintiff had known the identity of the author of the Fannie Mae letter since the April 2006 judgment was entered. The trial court also focused on the fact that plaintiff delayed moving to vacate the...