Citizens Bank, N.A. v. Taino J. Palermo, alias. ( 2021 )

March 22, 2021
Supreme Court
No. 2019-366-Appeal.
(PC 17-3278)
Citizens Bank, N.A. :
v. :
Taino J. Palermo, alias. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone
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be made before the opinion is published.
Supreme Court
No. 2019-366-Appeal.
(PC 17-3278)
Citizens Bank, N.A. :
v. :
Taino J. Palermo, alias. :
Present: Suttell, C.J., Goldberg, Robinson, and Lynch Prata JJ.
OPINION
Justice Lynch Prata, for the Court. The defendant, Taino Palermo,1 appeals
pro se from a Superior Court entry of summary judgment in favor of the plaintiff,
Citizens Bank, N.A., in the amount of $42,093.88 plus interest and costs, emanating
from two delinquent student loans. This case came before the Supreme Court
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 considering the parties’
written and oral submissions and reviewing the record, we conclude that cause has
1
In the lower court proceeding and before this Court, the defendant identifies
himself as “Ama Guatu, commercially known as ‘Taino Palermo.’” He also asserts
that he is a citizen and beneficiary of the “Baramaya Guainia Tribal Trust and Clan.”
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not been shown and that this case may be decided without further briefing or
argument. For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court.
Facts and Travel
On July 4 and 25, 2007, defendant entered into two separate student loan
agreements. The defendant received those student loans from Charter One Bank.
The original principal amounts of the loans were $15,000 and $10,000.
From the uncontroverted evidence, it is clear that, on August 31, 2004, prior
to the issuance of the loans, Charter One Financial, Inc., the parent company of
Charter One Bank, merged with Citizens Financial Group, Inc., the holding company
for plaintiff. On September 1, 2007, the individual banks under Citizens Financial
Group, Inc. merged into RBS Citizens, N.A. On April 27, 2015, Charter One Bank
changed its name to Citizens Bank, N.A.
On July 13, 2017, plaintiff filed the instant action seeking damages for the
remaining amounts due on the loans, based on the assertion that defendant was in
default on those loans. The plaintiff alleged that defendant owed $25,110.33, plus
interest, on the first loan and $16,523.40, plus interest, on the second loan. On May
28, 2018, defendant filed a motion to dismiss on jurisdictional grounds based upon
his tribal membership. The plaintiff objected to defendant’s motion to dismiss and
filed a motion for summary judgment on February 20, 2019.
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At a hearing on the parties’ motions, the hearing justice denied defendant’s
motion to dismiss, finding that the Superior Court had subject-matter jurisdiction
over the case.2 During the hearing, defendant admitted to signing the loan
documents and that the loans were in default. The defendant’s main contention at
the hearing was that summary judgment was improper because plaintiff had not
taken into account a $600 offset that should have been applied to his loan balance.
He also maintained that there was no documentation that showed the relationship
between Charter One Bank, the original lender, and plaintiff.
The hearing justice asked plaintiff for supplemental briefing regarding the
issue of how plaintiff acquired the loans as well as the issue of the $600 offset that
was brought to the court’s attention by defendant during the hearing. After plaintiff
filed a supplemental affidavit as to the offset and the merger of Charter One Bank
with plaintiff, the court held a second hearing. At that hearing, defendant noted an
additional offset of $353.46 that should have been applied to his loan balance, and
plaintiff agreed to reduce the judgment by that amount. The hearing justice then
2
Specifically, the hearing justice indicated that Federal Public Law 280, which
defendant cited in support of his motion to dismiss, pertained to civil actions arising
on designated tribal lands and was not relevant to the case at bar. Public Law 280
gives jurisdiction to certain states to handle civil actions involving Native Americans
that arise on designated tribal lands. See Narragansett Indian Tribe v. Rhode Island,
449 F.3d 16, 27 (1st Cir. 2006). It does not apply in Rhode Island or New York, and
it is wholly irrelevant to defendant’s argument as to the asserted lack of
subject-matter jurisdiction. See 18 U.S.C. § 1162; 28 U.S.C. § 1360.
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granted summary judgment in favor of plaintiff in the amount of $42,093.88.
Judgment entered in favor of plaintiff for that amount on August 5, 2019. The
defendant timely appealed.
Standard of Review
“This Court reviews a decision granting a party’s motion for summary
judgment de novo.” Boudreau v. Automatic Temperature Controls, Inc., 212 A.3d
594, 598 (R.I. 2019).
“Examining the case from the vantage point of the trial
justice who passed on the motion for summary judgment,
we view the evidence in the light most favorable to the
nonmoving party, and if we conclude that there are no
genuine issues of material fact and that the moving party
is entitled to judgment as a matter of law, we will affirm
the judgment.” Id. (quoting Sullo v. Greenberg, 68 A.3d
404, 406-07 (R.I. 2013)).
“Although summary judgment is recognized as an extreme remedy, * * * to
avoid summary judgment the burden is on the nonmoving party to produce
competent evidence that proves the existence of a disputed issue of material fact.”
Id. (quoting Sullo, 68 A.3d at 407).
Discussion
On appeal, defendant makes several arguments. He first maintains that there
remains a question of fact as to how plaintiff acquired the loans from Charter One
Bank. Second, he argues that the supplemental affidavit submitted by plaintiff
explaining the merger is insufficient because it is not based upon personal
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knowledge. Third, defendant contends that plaintiff did not provide an offset for the
$353.46, even though plaintiff had agreed to do so at the second hearing. Finally, in
his supplemental statement, defendant contends that, as “Principal Chief and Tribal
Trust Manager” of the Baramaya Guainia Tribal Trust and Clan, he has sovereign
immunity from civil lawsuits.
It is well established that there is “an affirmative duty” on a party responding
to a motion for summary judgment “to set forth facts showing that there is a genuine
issue of fact that will be resolved at trial.” Midland Funding LLC v. Raposo, 222
A.3d 484, 487 (R.I. 2019) (quoting American Express Bank, FSB v. Johnson, 945
A.2d 297, 300 (R.I. 2008)). “Such party must act diligently and in good faith to
rebut the evidence presented in support of the motion.” Id. (quoting American
Express Bank, 945 A.2d at 300). “The mere assertion that there are circumstances
which, if believed, would serve to nullify [a plaintiff’s] claim without any factual
context is insufficient to place [a defendant] beyond the reach of summary
judgment.” Id.Here, in support of its motion for summary judgment, plaintiff submitted a
supplemental affidavit from the custodian of records for plaintiff who swore, based
on personal knowledge, that Charter One Bank had merged with plaintiff and
recounted the history of the merger as set forth supra. The affiant further stated that,
through the merger, plaintiff acquired all rights associated with being a creditor of
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defendant’s two student loans at issue in this case. The defendant has not submitted
any evidence to contravene these assertions. Further, at the hearing on August 2,
2019, plaintiff agreed to credit $353.46 to the amount owed by defendant. A review
of the record reveals that this credit was applied, as the amount of the judgment is
exactly $353.46 less than the amount that plaintiff had stated was owed by defendant
in plaintiff’s supplemental affidavit.3 The defendant has failed to submit evidence
demonstrating that the amount set forth by plaintiff in its supplemental affidavit did
not include the $353.46 that was later offset by the court. In the face of this
uncontroverted evidence, it is clear that there is no question of material fact as to the
issue of the owner of the loans or as to the issue of the alleged $353.46 offset.
Finally, the defendant’s invocation of sovereign immunity is of no moment to
this appeal. “The general rule is that tribal sovereign immunity does not protect
individual members of an Indian tribe.” Narragansett Indian Tribe v. Rhode Island,
449 F.3d 16, 30 (1st Cir. 2006). “At its most expansive, tribal sovereign immunity
may extend to tribal officers—but only when such officers are acting within the
legitimate scope of their official capacity.” Id. There is no indication in the record
that the defendant entered into the student loan agreements while acting within the
scope of his position as a tribal officer. In addition, he has failed to demonstrate that
3
The plaintiff’s supplemental affidavit states that defendant owes a total of
$42,447.34 plus interest and costs.
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Rhode Island state courts otherwise lack jurisdiction over the loan agreements in this
case.4
Conclusion
For the reasons stated in this opinion, we affirm the judgment of the Superior
Court and remand the papers to the Superior Court.
Justice Long did not participate.
4
The hearing justice found, and we agree, that the Superior Court has subject-matter
jurisdiction over the plaintiff’s claim, and personal jurisdiction over the defendant.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case Citizens Bank, N.A. v. Taino Palermo, alias.
SU-2019-0366-Appeal.
Case Number
(PC 17-3278)
Date Opinion Filed March 22, 2021
Justices Suttell, C.J., Goldberg, Robinson, and Lynch Prata, JJ.
Written By Associate Justice Erin Lynch Prata
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Melissa E. Darigan
For Plaintiff:
Thomas W. Lyons, III.
Attorney(s) on Appeal Rhiannon S. Huffman, Esq.
For Defendant:
Taino J. Palermo, Pro Se
SU-CMS-02A (revised June 2020)