Domestic Bank v. Johnson (In re Johnson)

239 B.R. 255, 1999 Bankr. LEXIS 1238
CourtUnited States Bankruptcy Court, D. Rhode Island
DecidedSeptember 8, 1999
DocketBankruptcy No. 97-14695; Adversary No. 97-1197
StatusPublished

This text of 239 B.R. 255 (Domestic Bank v. Johnson (In re Johnson)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Domestic Bank v. Johnson (In re Johnson), 239 B.R. 255, 1999 Bankr. LEXIS 1238 (R.I. 1999).

Opinion

DECISION AND ORDER

ARTHUR N. VOTO LATO, Bankruptcy Judge.

Heard on cross Motions for Summary Judgment on Alma and Robert Johnson’s Third-Party Complaint against Interstate Contractors, Inc., alleging violations of the Rhode Island Door-to-Door Sales Act, §§ 6-28-1, et seq. (“Act”). There are no genuine issues of material fact in dispute and the matter is ripe for summary judgment. For the reasons discussed below, the Third-Party Plaintiffs’ Motion for Summary Judgment is GRANTED and the Third-Party Defendant’s Cross Motion for Summary Judgment is DENIED. More specifically, based upon the evidence presented and R.I. Gen. Laws §§ 6-28-1, et seq., we find that: (1) Interstate Contractors, Inc. violated the Rhode Island Door-to-Door Sales Act; and (2) the John-sons are awarded double damages in the amount of $24,800, pursuant to R.I. Gen. Laws § 6-28-4(d).

BACKGROUND

On July 2, 1995, an Interstate representative appeared at the Johnson residence at 65 Stanford Street, Providence, Rhode Island, offering home improvement services. As part of his sales promotion the Interstate agent told the Johnsons that funds were available for first-time homeowners to improve their property, that he did all of his business with Domestic Loan & Investment Bank through his friend who worked there, and that “he would take care of everything.” As a result of this [257]*257solicitation the Johnsons agreed to have their porch, porch floors, and railings repaired and/or replaced for a total price of $14,900, and they signed a home improvement contract to that effect. Interstate immediately commenced work, even before the Johnsons had acquired funds to pay for the job. While the work was in progress the Johnsons went to the offices of Domestic to finance the project, and executed a mortgage and promissory note. With the application approved, the loan was processed and the Johnsons paid Interstate $12,400 from the proceeds. The balance of $2,500 was due when the work was completed (the Johnsons contend that they paid this, but Interstate alleges that the check never cleared). For purposes of this decision, the Johnsons agree that a balance of $2,500 remains. (Defendants’ Objection to Motion for Summary Judgment, p. 4, ¶ 1).

On November 12, 1997, the Johnsons filed a petition under Chapter 13 to stop a scheduled foreclosure by the first mortgagee, and on August 19, 1998, the case was converted to Chapter 7. In their complaint the Johnsons alleged that Domestic Bank violated the Federal Truth In Lending Act, 15 U.S.C. § 1635, et seq., and those parties have settled that dispute. On March 26, 1998, the Johnsons amended the complaint to include the instant third-party related action against Interstate Contractors, Inc.

It is undisputed that the contract in question fails to include certain disclosures required by Rhode Island’s Door-to-Door Sales Act, so-called, R.I. Gen. Laws § 6-28-1. Specifically, Interstate failed to: (1) use minimum ten (10) point bold font in the “Notice to Buyer” language as required by R.I. Gen. Laws § 6-28-4(a); (2) use the required language in the “Notice to Buyer” in accordance with R.I. Gen. Laws § 6-28-4(a);1 and (3) provide the proper “Notice of Cancellation” as required by R.I. Gen. Laws § 6-28-4(c).2

On January 12, 1998, the Johnsons, through their attorney, sent a demand letter to Interstate rescinding and canceling the home improvement contract, and requesting a full refund. Interstate did not respond to this notice. Both parties now request summary judgment.

[258]*258 DISCUSSION

In considering requests for summary judgment, courts in this Circuit use the following guidelines:

[S]ummary judgment should be bestowed only when no genuine issue of material fact exists and the movant has successfully demonstrated an entitlement to judgment as a matter of law. See Fed.R.Civ.P. 56(c). As to issues on which the movant, at trial, would be obligated to carry the burden of proof, he initially must proffer materials of evidentiary or quasi-evidentiary quality ... that support his position.... When the summary judgment record is complete, all reasonable inferences from the facts must be drawn in the manner most favorable to the nonmovant.... This means, of course, that the summary judgment is inappropriate if inferences are necessary for the judgment and those inferences are not mandated by the record.

Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir.1994) (citations omitted) (Footnotes omitted).

“In operation, summary judgment’s role is to pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required.” Weiss v. Blue Cross/Blue Shield, 206 B.R. 622, 624 (1st Cir. BAP 1997) (quoting Wynne v. Tufts Univ. School of Medicine, 976 F.2d 791, 794 (1st Cir.1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993). Where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, summary judgment properly issues. See 206 B.R. at 624. When the plaintiff properly supports its motion for summary judgment, the burden shifts to the defendant, which “may not rest on mere allegations or denials of.. .[its] pleading, but must set forth specific facts showing there is a genuine issue for trial.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Here, the Johnsons have adequately supported their Motion for Summary Judgment, and Interstate has failed to present, through affidavit or evidence, a genuine issue for a trial.

In resolving this dispute we must apply, and interpret if necessary, the provisions of the Rhode Island Door-to-Door Sales Act, R.I. Gen. Laws §§ 6-28-1, et seq., and in so doing we are guided by the following principles:

“ ‘the task of interpretation begins with the text of the statute itself, and statutory language must be accorded its ordinary meaning.’ ” In re Juraj J. Bajgar, 104 F.3d 495, 497 (1st Cir.1997),

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Bluebook (online)
239 B.R. 255, 1999 Bankr. LEXIS 1238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/domestic-bank-v-johnson-in-re-johnson-rib-1999.