Thomas H. McGovern, III v. Bank of America, N.A.
2014 R.I. LEXIS 83
| R.I. | 2014Background
- McGovern and his wife executed an $180,000 adjustable-rate note and a mortgage naming Bank of America as lender and mortgagee with power of sale in 2001.
- Bank of America notified McGovern of default in 2010 and scheduled a foreclosure sale for April 21, 2010, with weekly notices published March–April 2010.
- Sale was adjourned to allow McGovern to pursue Home Affordable Modification Program (HAMP); notices continued to be published as sales were rescheduled, and McGovern ultimately did not obtain HAMP.
- Celtic Roman Group, LLC placed the successful bid at foreclosure on July 27, 2010; McGovern filed a lis pendens and a complaint in November 2010 challenging various aspects of the foreclosure.
- Defendants moveds for summary judgment, submitting affidavits showing Bank of America held the note and mortgage and that McGovern was in default; McGovern submitted affidavits denying ownership and asserting lack of default.
- The Superior Court granted summary judgment in favor of defendants in 2013, and the Rhode Island Supreme Court affirmed in 2014.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proof of default standard and burden | McGovern contends issue of default is genuine fact for trial. | Defendants show undisputed arrears and failure to cure; burden shifts to McGovern to create a dispute. | No genuine issue; default proven by admissible evidence. |
| Notice of adjourned foreclosure sale | Plaintiff argues inadequate or missing notices of adjournment. | Notice was properly published weekly for adjourned sales as required by statute. | Adjourned notice properly published; notice requirements satisfied. |
| Holder of the note at time of foreclosure | Note ownership disputed; BAC allegedly did not own the note at foreclosure. | Bank of America presented competent evidence that it held the note and mortgage; any purported Dilworth letter was unauthenticated. | Bank of America held the note; summary judgment upheld despite potential factual issue deemed immaterial. |
Key Cases Cited
- Plainfield Pike Gas & Convenience, LLC v. 1889 Plainfield Pike Realty Corp., 994 A.2d 54 (R.I. 2010) (burden-shifting framework for summary judgment)
- Riel v. Harleysville Worcester Insurance Co., 45 A.3d 561 (R.I. 2012) (opposing party must show a genuine issue of material fact)
- D’Allesandro v. Tarro, 842 A.2d 1063 (R.I. 2004) (summary judgment burden on nonmoving party to provide competent evidence)
- Salisbury v. Stone, 518 A.2d 1355 (R.I. 1986) (grounds to establish factual dispute with conclusory statements insufficient)
- Superior Boiler Works, Inc. v. R.J. Sanders, Inc., 711 A.2d 628 (R.I. 1998) (authentication and admissibility of documents for summary judgment)
- Rhode Island Managed Eye Care, Inc. v. Blue Cross & Blue Shield of Rhode Island, 996 A.2d 684 (R.I. 2010) (flexible approach to authentication for Rule 56 evidence)
- Levine v. Bess Eaton Donut Flour Co., Inc., 705 A.2d 980 (R.I. 1998) (affirming lower court when other valid reasons exist)