§ 34-27-4. Publication of notice under power of sale and rights of active military servicemembers.
(a) Whenever any real estate shall be sold under any power of sale mortgage executed subsequent
to May 4, 1911, and the mortgage shall provide for the giving of notice of the sale
by publication in some public newspaper at least once a week for three (3) successive
weeks before the sale, the first publication of the notice shall be at least twenty-one
(21) days before the day of sale, including the day of the first publication in the
computation, and the third publication of the notice shall be no fewer than seven
(7) days before the original date of sale listed in the advertisement, including the
day of the third publication in the computation, and no more than fourteen (14) days
before the original date of sale listed in the advertisement. The sale may take place
no more than fourteen (14) days from the date on which the third successive notice
is published, excluding the day of the third publication in the computation. Provided,
however, that if the sale is adjourned as provided in § 34-11-22, and the adjourned sale is held during the same calendar week as the originally scheduled
day of sale, no additional advertising is required. Otherwise, publication of the
notice of the adjourned sale, together with a notice of the adjournment or adjournments,
shall be continued at least once each week commencing with the calendar week following
the originally scheduled day of sale; the sale, as so adjourned, shall take place
during the same calendar week in which the last notice of the adjourned sale is published,
at least one day after the date on which the last notice is published.
(b) Provided, however, that no notice shall be valid or effective unless the mortgagor
has been mailed written notice of the time and place of sale by certified mail return
receipt requested at the address of the real estate and, if different, at the mortgagor's
address listed with the tax assessor's office of the city or town where the real estate
is located or any other address the mortgagor designates by written notice to the
mortgagee at their, or its last known address, at least twenty (20) days for mortgagors
other than individual consumer mortgagors, and at least thirty (30) days for individual
consumer mortgagors, days prior to the first publication, including the day of mailing
in the computation. The mortgagee shall include in the foreclosure deed an affidavit
of compliance with this provision.
(c) Provided further, that the notice mailed to the mortgagor in accordance with subsection
(b) above shall also contain a copy of subsection (d) below (printed in not less than
12 point type) headed by the following notice (printed in not less than 14 point type):
"A servicemember on active duty or deployment or who has recently ceased such duty
or deployment has certain rights under § 34-27-4(d) of the Rhode Island general laws set out below. To protect your rights if you are such a servicemember, you should
give written notice to the servicer of the obligation or the attorney conducting the
foreclosure, prior to the sale, that you are a servicemember on active duty or deployment
or who has recently ceased such duty or deployment. This notice may be given on your
behalf by your authorized representative. If you have any questions about this notice,
you should consult with an attorney.� The mortgagee shall include in the foreclosure
deed an affidavit of compliance with this provision.
(d) Foreclosure sales affecting servicemembers.
(1) The following definitions shall apply to this subsection and to subsection (c):
(i) "Servicemember� means a member of the Army, Navy, Air Force, Marine Corps, Space Force,
or Coast Guard and members of the National Guard or Reserves called to active duty.
(ii) "Active dutyâ€� has the same meaning as the term is defined in 10 U.S.C. §§ 12301 — 12304. In the case of a member of the National Guard, or Reserves "active dutyâ€� means and
includes service under a call to active service authorized by the president or the
secretary of defense for a period of time of more than thirty (30) consecutive days
under 32 U.S.C. § 502(f), for the purposes of responding to a national emergency declared by the president
and supported by federal funds.
(2) This subsection applies only to an obligation on real and related personal property
owned by a servicemember that:
(i) Originated before the period of the service member's military service or in the case
of a member of the National Guard or Reserves originated before being called into
active duty and for which the servicemember is still obligated; and
(ii) Is secured by a mortgage or other security in the nature of a mortgage.
(3) Stay of right to foreclose by mortgagee. Upon receipt of written notice from the mortgagor or mortgagor's authorized representative
that the mortgagor is participating in active duty or deployment or that the notice
as provided in subsection (c) was received within nine (9) months of completion of
active duty or deployment, the mortgagee shall be barred from proceeding with the
execution of sale of the property as defined in the notice until such nine-month (9)
period has lapsed or until the mortgagee obtains court approval in accordance with
subsection (d)(5) below.
(4) Stay of proceedings and adjustment of obligation. In the event a mortgagee proceeds with foreclosure of the property during, or within
nine (9) months after a servicemember's period of active duty or deployment notwithstanding
receipt of notice contemplated by subsection (d)(3) above, the servicemember or their
authorized representative may file a petition against the mortgagee seeking a stay
of such foreclosure, after a hearing on such petition, and on its own motion, the
court may:
(i) Stay the proceedings for a period of time as justice and equity require; or
(ii) Adjust the obligation as permitted by federal law to preserve the interests of all
parties.
(5) Sale or foreclosure. A sale, foreclosure or seizure of property for a breach of an obligation of a servicemember
who is entitled to the benefits under subsection (d) and who provided the mortgagee
with written notice permitted under subsection (d)(3) shall not be valid if made during,
or within nine (9) months after, the period of the servicemember's military service
except:
(i) Upon a court order granted before such sale, foreclosure, or seizure after hearing
on a petition filed by the mortgagee against such servicemember; or
(ii) If made pursuant to an agreement of all parties.
(6) Penalties. A mortgagee who knowingly makes or causes to be made a sale, foreclosure, or seizure
of property that is prohibited by subsection (d)(3) shall be fined the sum of one
thousand dollars ($1,000), or imprisoned for not more than one year, or both. The
remedies and rights provided hereunder are in addition to and do not preclude any
remedy for wrongful conversion otherwise available under law to the person claiming
relief under this section, including consequential and punitive damages.
(7) Any petition hereunder shall be commenced by action filed in the superior court for
the county in which the property subject to the mortgage or other security in the
nature of a mortgage is situated. Any hearing on such petition shall be conducted
on an expedited basis following such notice and/or discovery as the court deems proper.