February 7, 2013
In Breggia v Mortgage Electronic Registration Systems, et al., C.A. No. PC 2009-4144 (R.I. Super. April 3, 2012), the plaintiff brought a declaratory judgment claim to quiet title following a foreclosure sale. The plaintiff alleged a defective foreclosure sale occurred.
The defendants moved for an entry of judgment on the pleadings. During the course of the litigation, Porter was decided. As a result, the parties submitted supplemental memoranda to discuss the impact of the decision on their case. The court noted that the memoranda submitted by the defendants were not a part of the pleadings. In addition, the documents the plaintiff included were attached to a motion, not to the pleading. As a result, the court found that it may convert the motion to a motion for summary judgment because the parties, particularly the plaintiff who opposed the conversion, had a “reasonable opportunity to present all materials made pertinent to such a motion.” Payette v. Mortgage Electronic Registration Systems, No. PC-2009-5875, 2011 WL 3794701 (R.I. Sup. August 22, 2011).
In addressing the summary judgment motion, the court compared the facts of the case to Payette. The court found the plaintiffs failed to distinguish the facts in this case from the facts in Payette. The court found in both cases, the plaintiffs expressly granted MERS the statutory power of sale in the mortgage agreement. In addition, the plaintiffs granted MERS the power to assign its interests, which was done so in this case through a blank endorsement.
As a result, the court granted the defendant’s motion for summary judgment.| Permalink