Dorothy M. Allegra Revocable Trust – 2001 v. Deutsche Bank National Trust Company as Trustee for IndyMac INDX Mortgage Loan Trust 2006-AR 15, Mortgage Pass-Through Certificates Series 2006-15

• Court: Supreme Court of Rhode Island
• Decided: February 19, 2020
• Docket: 19-46
• Status: Unpublished

Opinion

Supreme Court

No. 2019-46-Appeal. (KM 18-308)

Dorothy M. Allegra Revocable Trust – : 2001

v. :

Deutsche Bank National Trust Company as : Trustee for IndyMac INDX Mortgage Loan Trust 2006-AR 15, Mortgage Pass-Through Certificates Series 2006-15.

ORDER

The plaintiff, the Dorothy M. Allegra Revocable Trust – 2001 (plaintiff or the trust),

appeals from the grant of summary judgment in favor of the defendant, Deutsche Bank National

Trust Company (defendant). The plaintiff contends that the defendant conducted an illegal

foreclosure sale and that the trial justice granted summary judgment prematurely and therefore

erred in doing so. This case came before the Supreme Court on January 28, 2020, 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 carefully considering the parties’ written and oral submissions

and reviewing the record, we are of the opinion that this appeal may be resolved without further

argument or briefing. For the reasons set forth in this order, we affirm the judgment of the

Superior Court.

The pertinent facts in this case are not in dispute. On March 25, 1987, Salvatore Allegra

executed a quitclaim deed in favor of himself and his wife, Dorothy Allegra, as tenants by the

entirety, for certain real property located at 607 Budlong Farm Road in Warwick, Rhode Island

(the property). On December 7, 2001, the Allegras conveyed their interest in the property to

-1- their respective trusts, as tenants in common. Thereafter, on March 29, 2006, the Allegras

executed a promissory note in favor of IndyMac Bank, F.S.B. (IndyMac), in the amount of

$1,150,000, and a mortgage deed in favor of Mortgage Electronic Registration Systems, Inc.

(MERS), as putative nominee for IndyMac. The mortgage identified the Allegras as “borrowers”

and provided that “Borrower is the mortgagor under this Security Instrument.”

Just over one year later, on May 1, 2007, Salvatore died; Dorothy died five years later, on

September 18, 2012. Subsequently, on May 9, 2013, MERS assigned the mortgage to defendant,

and on August 15, 2016, defendant assigned the mortgage to itself, as part of a mortgage-pooling

agreement.

On November 1, 2016, defendant, through its attorneys, mailed a notice of intention to

foreclose on the mortgage to Salvatore Allegra, Dorothy Allegra, and their respective estates.1

Notice was also mailed to Joanne Borodemos, in her capacity as executrix of Dorothy’s estate,

and Doris A. Lavallee, in her capacity as attorney of record for the executrix of Dorothy’s estate

in the probate court. Additionally, “courtesy notice” was also mailed to “the heirs, devisees and

legal representatives of Dorothy Allegra, as the successor in interest to Dorothy Allegra as the

surviving mortgagor”; Joanne Borodemos, individually as an heir and interested party; and any

occupants of 607 Budlong Farm Road.

On December 23, 2016, defendant conducted a foreclosure sale and purchased the

property for $762,500. Thereafter, on February 27, 2017, a foreclosure deed conveying the

property to defendant was recorded in the City of Warwick Land Evidence Records. An

1 The property address is also referred to in the pertinent documents as 607 Buttonwoods Shore and 607 Buttonwoods Avenue. The defendant mailed notice to 607 Buttonwoods Avenue, 607 Budlong Farm Road, and 607 Budlong Farm Road AKA 607 Buttonwoods Avenue. The plaintiff does not assert that the foreclosure sale was invalid based on the addresses used.

-2- affidavit of sale in the statutory form, ensuring compliance with the statutory requirement for

sale and the terms of the mortgage, was attached to the foreclosure deed.

The plaintiff filed this lawsuit seeking injunctive and declaratory relief, an order quieting

title, and attorneys’ fees and costs. The defendant filed a motion to dismiss in accordance with

Rule 12(b)(6) of the Superior Court Rules of Civil Procedure, arguing that plaintiff had failed to

allege that notice of the foreclosure sale was not given to the mortgagors. The plaintiff objected

to the motion, contending that the foreclosure was “null and void” because notices of intent to

foreclose were prepared and mailed to Salvatore and Dorothy three years after Dorothy had died.

The motion to dismiss was then converted to a Rule 56 motion for summary judgment, and

defendant filed an affidavit in support thereof.

On August 14, 2018, a hearing was held on the motion before a justice of the Superior

Court. At the hearing, defendant argued that “[G.L. 1956 § 34-27-4] requires that notice be

given to all mortgagors at their last known address or their property address” and that, despite the

fact that they were deceased, the Allegras had been given notice of the foreclosure. Conversely,

plaintiff contended in opposition to summary judgment that the proper owner of the property was

the trust “and the [t]rust was never noticed, never a party to this, never mentioned at all.”

The trial justice noted that § 34-27-4 does not require notice to the owner of the property

when the mortgagor has died. He stated that “defendant has presented the note, mortgage, and

chain of assignments evidencing the mortgage relationship between the parties, which has not

been rebutted by plaintiff.” The trial justice further stated that defendant “provided evidence in

the form of an affidavit, notice of intent to foreclose, and pre-foreclosure referral letters” that

established that the Allegras had not paid their monthly installment payments and were in default

-3- as a result. Therefore, the trial justice found that defendant was entitled to foreclosure, and he

granted summary judgment in favor of defendant. The plaintiff timely appealed.

Before this Court, plaintiff asserts that the hearing justice’s grant of summary judgment

in favor of defendant was “premature and in error on multiple grounds.” However, in the

Superior Court, the only issue raised by plaintiff before the hearing justice, and thereby

preserved on appeal, was whether defendant was required to provide notice to the trust as owner

of the property. See State v. Romero, 193 A.3d 1167, 1170-71 (R.I. 2018) (“[I]f an issue was not

properly asserted, and thereby preserved, in the lower tribunals, this Court will not consider the

issue on appeal.”) (quoting Miller v. Wells Fargo Bank, N.A., 160 A.3d 975, 980 (R.I. 2017)).

Moreover, despite plaintiff asserting at oral argument before this Court that notice was

improper, its written submission to the Court is devoid of any mention that the foreclosure sale

was improper because the trust was not notified. The plaintiff has thus waived that issue. See

Giddings v. Arpin, 160 A.3d 314, 316 (R.I. 2017) (mem.) (“[S]imply stating an issue for

appellate review, without a meaningful discussion thereof or legal briefing of the issues, does not

assist the Court in focusing on the legal questions raised, and therefore constitutes a waiver of

that issue.”) (quoting Giammarco v. Giammarco, 151 A.3d 1220, 1222 (R.I. 2017)).

Even if the plaintiff had properly raised the argument that notice was improper in its

written submission to this Court, such an argument lacks merit. Section 34-27-4(b) provides

“that no notice shall be valid or effective unless the mortgagor has been mailed written notice of

the time and place of sale * * * at the address of the real estate[.]” (Emphasis added.) Indeed, the

undisputed evidence demonstrates that Salvatore and Dorothy Allegra were the mortgagors

under the mortgage and that they were both mailed written notice of the defendant’s intent to

foreclose at their last known addresses, in accordance with § 34-27-4(b). Accordingly, for the

-4- reasons stated herein, we affirm the judgment of the Superior Court granting summary judgment

in favor of the defendant. The record shall be returned to that tribunal.

Entered as an Order of this Court this ____ 19th day of February, 2020.

By Order,

/s/ ____________________________ Clerk

-5- STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT – CLERK’S OFFICE

ORDER COVER SHEET

Dorothy M. Allegra Revocable Trust – 2001 v. Deutsche Bank National Trust Company as Trustee Title of Case for IndyMac INDX Mortgage Loan Trust 2006-AR 15, Mortgage Pass-Through Certificates Series 2006- 15. No. 2019-46-Appeal. Case Number (KM 18-308) February 19, 2020 Date Order Filed Suttell, C.J., Goldberg, Flaherty, Robinson, and Justices Indeglia, JJ. Kent County Superior Court Source of Appeal Associate Justice Daniel A. Procaccini Judicial Officer From Lower Court For Plaintiff:

Jay R. Katznelson, Esq. Attorney(s) on Appeal For Defendant:

Jeffrey C. Ankrom, Esq. Robert J. Durant, Jr., Esq.

SU‐CMS‐02B (revised November 2016)