DocketNumber: No. PC-08-7913
Judges: RUBINE, J.
Filed Date: 10/28/2009
Status: Precedential
Modified Date: 7/6/2016
Currently before the Court is a motion filed by Petitioners, entitled "Motion to Vacate Judgment," as well as a motion filed by Respondent Hayon Realty Company ("Hayon") entitled "Motion to Dismiss and to Quash." Hayon seeks the entry of final judgment in its favor pursuant to Super. R. Civ. P. 54(b) on claims for which the requested remedy was to vacate a prior judgment of this Court foreclosing the right of redemption. Hayon further seeks an order of the Court to recall and vacate the lis pendens that Petitioners have recorded in the Land Evidence Records.
Although not characterized as Motions for Summary Judgment, considering the nature of the motions and that the parties attached appendices to their papers, the Court will treat the filings as Cross-Motions for Summary Judgment. See
Super. R. Civ. P. 56 ("If on a motion for *Page 2
judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. . . .").1 The Respondent City of Providence ("Providence") has filed an objection to Petitioners' motion. Jurisdiction is pursuant to G.L. 1956 §
On July 25, 2007, Hayon filed a Petition to Foreclose the Right of Redemption against the former property owner, Francisco Semedo (Semedo). A title search performed by the Court-appointed title examiner revealed additional recorded interests and Hayon twice amended the petition to add said parties. Ultimately, the petition named as respondents: Semedo; Maria Lopes Furtado; Ameriquest Mortgage Company ("Ameriquest"); Associates Home Equity Services, Inc. N/K/A/ Citifinancial Mortgage Company, Inc. ("Associates"); the City of Providence, Department of Inspections and Standards; and Deutsche Bank National Trust Company, as Trustee ("Deutsche Bank"). The title search did not reveal either Petitioner as having a recorded interest in the Property.
Before reciting the events that allegedly occurred prior to the foreclosure of the right of redemption, the Court first will provide some background information. On June 2, 2004, LPS's alleged predecessor in interest, LSI Tax Services entered into a Tax Services Agreement with *Page 3 Ameriquest and its affiliates. See "Tax Services Agreement Outsourcing," dated June 2, 2004.
Section 1.1(c) of the Agreement provided in pertinent part:
"COMPANY [LSI] will perform tax advances on delinquent loans that are determined by CUSTOMER [Ameriquest] Payment guidelines to be of such a severe nature that the delinquency must be cured immediately in order to redeem the property prior to the tax agency's final tax sale or auction date. If final tax sale or auction date is within 5 days of tax/penalty advance and CUSTOMER cannot forward funds to Company for payment Company will advance funds from Company's general account to perform said tax/penalty advance" (Tax Services Agreement Outsourcing at 1-2.)
Section 12.1 of the Agreement provided in pertinent part:
". . . COMPANY'S liability on any claim of any kind for any loss or damages arising out of, or resulting from, this Tax Service Order or from COMPANY'S failure to perform adequately and timely the described services shall in no case exceed the exact amount of the CUSTOMER'S outstanding loan balance and any applicable tax advances, penalties and interest." (Tax Services Agreement Outsourcing at 8.) (Emphases added.)
Section 18 provided: "All obligations and duties of any party under this AGREEMENT shall be binding on all successors in interest and permitted assigns of such party." (Tax Services Agreement Outsourcing at 12.) If, as alleged, LPS is LSI's successor in interest, then the obligations and duties stemming from the Service Agreement are binding on LPS.
On October 21, 2004, LSI entered into a similar Tax Services Agreement with Deutsche Bank. See Tax Services Agreement Outsourcing dated October 21, 2004. Neither Service Agreement was recorded in the Land Evidence Records.
On March 9, 2006, Deutsche Bank, Ameriquest, and AMC Mortgage Securities, Inc. (AMC), signed a document entitled "Limited Power of Attorney." In it, Deutsche Bank appointed Ameriquest and AMC as its "Attorney in Fact" as Servicer or Master Servicer, pursuant to pooling and service agreements, or indentures, by and among Deutsche Bank, as *Page 4 Trustee, and Ameriquest and AMC, as well as their respective successors and assigns. The document specifically stated "Nothing contained herein shall . . . be construed to grant the Servicer the power to initiate or defend any suit, litigation or proceeding in the name of Deutsche Bank National Trust Company except as specifically provided for herein." The document was recorded in the Providence Land Evidence Records on December 1, 2006.
On October 19, 2007, Ameriquest signed a similar "Limited Power of Attorney" document in which it appointed Citi as its "Attorney in Fact." (Limited Power of Attorney, Para. 11, dated October 19, 2007.) It was recorded on March 25, 2008, three days before the Court entered its decree foreclosing of the right of redemption. At some point in time, Citi purchased Ameriquest and became successor in interest to Ameriquest. (Citi's Answers to Interrogatories, Nos. 12 and 13.) Furthermore, "LPS was the real estate tax service provider for Citi Residential."Id. at No. 13.
On March 24, 2009, pursuant to this Court's order appointing him as Title Examiner, Joel Landry, principal of Lincoln Title Closing, LLC, performed a title search of the Property.See Affidavit of Joel Landry. His search revealed:
1. The Limited Power of Attorney between Deutsche Bank and Ameriquest and AMC.
2. An assignment of the mortgage from Ameriquest to Deutsche Bank, filed September 17, 2007.
3. The Limited Power of Attorney between Ameriquest and Citi.
4. Notice of Disposal of Tax Lien, filed March 16, 2008.
5. An assignment of the mortgage from Ameriquest to Deutsche Bank, filed September 16, 2008.
See id.
On March 28, 2008, Hayon obtained a final decree from the Superior Court foreclosing all rights of redemption in the Property after having given notice of its Petition to Foreclose to those parties having recorded interests pursuant to the Landry title search. Hayon recorded *Page 5
notice of the decree in the Land Evidence Records. On December 16, 2008, Petitioners filed the instant action in which they allege four counts against Defendants. Count I alleges negligence on the part of Chuhna; Count II alleges equitable estoppel; Count III alleges equitable estoppel pursuant to §
Specifically, Petitioners assert that they have an interest in the Property because they were responsible to ensure payment of the Property's taxes, and that the alleged nonpayment of those taxes could render them liable to Citi and Deutsche Bank for the loss of their interest in the Property. They maintain by affidavit that on December 20, 2007, LPS sent a cashier's check to Attorney Fernando S. Cuhna (Attorney Cuhna) on behalf of Citi and Deutsche Bank for purposes of redeeming the Property from foreclosure.2 The Petitioners further maintain that Attorney Cuhna's office confirmed receipt of the tendered payment but that, nevertheless, Attorney Cuhna negligently failed to accept the full redemption payment and to cease the foreclosure proceedings. By reason of the foregoing, Petitioners take the position that the Court should not have entered a final decree foreclosing the right of redemption.
The Petitioners also contend that Hayon should be equitably estopped from transferring the Property to a bona fide
third-party purchaser because their only remaining remedy would be a civil action against Attorney Cuhna and Hayon. They then assert that because "LPS tendered the required payment to Hayon's representative, Cuhna, before the foreclosure of the right of redemption, therefore redeeming the tax title to the Property[,]" they have met the standard for *Page 6
vacating the decree foreclosing the right of redemption in accordance with §
Hayon maintains that Petitioners do not have standing to bring an independent action under §
Additional facts will be supplied as needed in the analysis section of this Decision.
However, "a party who opposes a motion for summary judgment carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions."Weaver v. Am. Power Conversion Corp.,
It is well-established that the interpretation of a statute is a question of law. See Palazzolo v. State ex rel. Tavares,
Furthermore, under our cannons of statutory interpretation
"[t]he construction of legislative enactments is a matter reserved for the courts, . . . and, as final arbiter on questions of construction, it is this court's responsibility in interpreting a legislative enactment to determine and effectuate the Legislature's intent and to attribute to the enactment the meaning most consistent with its policies or obvious purposes." State v. Greenberg,
951 A.2d 481 ,489 (R.I. 2008) (quoting Brennan v. Kirby,529 A.2d 633 ,637 (R.I. 1987)).
To accomplish this task, the Court must scrutinize "`the language, nature, and object of the statute[,]' to glean the intent of the Legislature." Id. (quoting State v. Pelz,
An action to foreclose the right of redemption "is a unique procedure created by statute for a limited purpose; to provide a forum for the exercise of the right to redeem the subject land" if delinquent tax payments due are paid in a timely manner. AbarAssociates v. Luna,
It is well recognized that "one of the goals of the tax sale statute is to `afford a measure of stability to tax titles[,]'" and to remove the cloud on title created by the right of redemption.Id. (citing Picerne v. Sylvestre,
Section
The question as to what party or parties is entitled to notice of a tax sale is governed by §
"In case the collector shall advertise for sale any property, real, personal, or mixed, in which any person other than the person to whom the tax is assessed has an interest, it shall not be necessary for the collector to notify the interested party, except for the *Page 10 following interested parties, provided that their interest was of record at least ninety (90) days prior to the date set for the sale: the present owner of record, mortgagees of record and mortgage assignees of record, former fee holders whose right to redeem has not been foreclosed, holders of tax title, federal agencies having a recorded lien on the subject property, holders of life estates of record, and vested remainder whose identity can be ascertained from an examination of the land or probate records of the municipality conducting the sale, and/or their assignees of record who shall be notified by the collector either by registered or certified mail sent postpaid not less than twenty (20) days before the date of sale or any adjournment of the sale, to an agent authorized by appointment or by law to receive service of process, or to the address of the party in interest set forth in the recorded mortgage document or the recorded assignment, or to the last known address of the party in interest, but no notice of adjournments shall be necessary other than the announcement made at the sale. The posting and publication of the notice of the time and place of sale in the manner provided by §
44-9-9 shall be deemed sufficient notice to all other interested parties."
Section
It is clear from the foregoing that tax collectors only must notify parties with an interest in a property when that interest is recorded at least ninety days before the sale date.4
In Abar Associates, our Supreme Court answered the following question in the negative: "May the holder of an unrecorded interest in the property, who is clearly not entitled to receive notice of either the tax sale or the petition to foreclose, intervene after a final decree has been entered foreclosing all rights of redemption?"Abar Associates,
The Court finds that such a conclusion would lead to an absurd result because rather than affording a measure of stability to tax titles and ensuring that the Court's jurisdiction is sharply circumscribed, it would permit unknown, unrecorded individuals to have standing to bring independent actions to vacate foreclosure decrees after the entry of a decree foreclosing the right of redemption. Consequently, the Court rejects Petitioners' suggested broad interpretation of §
In the instant matter, it is undisputed that Petitioners did not have a recorded interest in the Property during the relevant period. As a result, Petitioners did not receive, nor were they entitled to receive, notice of the foreclosure as interested parties. Considering that Petitioners did not constitute interested parties for purposes receiving notice of either the tax sale or the Petition to Foreclose the Right of Redemption, they do not have standing in the instant matter to seek to vacate the decree foreclosing the right of redemption.5 Consequently, the action against Hayon must be dismissed as a matter of law.
Section
"Only a person or entity failing to receive notice in accordance with the provisions of this section and §§
44-9-9 and44-9-10 shall be entitled to raise the issue of lack of notice or defective notice to void the tax sale. The right to notice shall be personal to each party entitled to it and shall not be asserted on behalf of another party in interest. If there is a defect in notice, the tax sale shall be void only as to the party deprived of adequate notice, but shall be valid as to all other parties in interest who received proper notice of the tax sale." (Emphasis added.)
The same holds true for the parties who did not receive notice of the tax sale, but to whom no such notice was required by the statute. Although it is undisputed that Providence did not notify Associates of the tax sale, the clear and unambiguous language of §
Counsel shall submit an appropriate order for entry pursuant to Super. R. Civ. P. 54(b).
Brennan v. Kirby , 529 A.2d 633 ( 1987 )
O'CONNOR v. McKanna , 116 R.I. 627 ( 1976 )
Pratt v. Woolley , 117 R.I. 154 ( 1976 )
Rotelli v. Catanzaro , 686 A.2d 91 ( 1996 )
RET. BD. OF EMPLOYEES'RET. SYS. v. DiPrete , 845 A.2d 270 ( 2004 )
RI HOSPITAL TRUST NAT. BANK v. Boiteau , 376 A.2d 323 ( 1977 )
Albertson v. Leca , 447 A.2d 383 ( 1982 )
Industrial National Bank v. Peloso , 121 R.I. 305 ( 1979 )
State v. Santos , 870 A.2d 1029 ( 2005 )
Palmisciano v. Burrillville Racing Ass'n , 603 A.2d 317 ( 1992 )
Bourg v. Bristol Boat Co. , 705 A.2d 969 ( 1998 )
Ludwig v. Kowal , 419 A.2d 297 ( 1980 )
State v. Flores , 714 A.2d 581 ( 1998 )
Picerne v. Sylvestre , 122 R.I. 85 ( 1979 )
State v. Greenberg , 951 A.2d 481 ( 2008 )
Steinberg v. State , 427 A.2d 338 ( 1981 )
Accent Store Design, Inc. v. Marathon House, Inc. , 674 A.2d 1223 ( 1996 )
Pleasant Management, LLC v. Carrasco , 870 A.2d 443 ( 2005 )
Palazzolo v. State Ex Rel. Tavares , 746 A.2d 707 ( 2000 )