Thе plaintiffs, Christine Adams and George J. Adams, Jr., appeal from a judgment of the Superior Court in favor of the defendant, Santander Bank, N.A. 1 This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not summarily be decided. After considering the parties' written and oral arguments, and after reviewing the record, we conclude that cause has not been shown and thаt this case may be decided without further briefing or argument. For the reasons set forth below, we affirm the judgment of the Superior Court.
I
Facts and Travel
On February 19, 2013, Santander conducted a foreclosure sale on property located in Pawtucket. Aсcording to a complaint filed in February 2014, that property was owned by Christine Adams. In that complaint, Christine Adams sued Santander, alleging that she was the owner of the property and that Santander had improperly foreclosed on it. Thе complaint also alleged that plaintiff had filed for bankruptcy in advance of Santander's scheduled foreclosure sale, which, she alleged, should
Several months later, plaintiff amended her complaint. In addition to reasserting her claim that Santander improperly foreclosed on her property during the pendency of her bankruptcy, plaintiff alleged that Santander had failed to comply with the notice requirements set forth in G.L. 1956 §§ 34-27-4(a) and 34-27-4(b) before it conducted the February 19 sale. Respectively, she asserted that § 34-27-4(a) required Santander to give notice of the foreclosure sale by publication "at least once per week for three consecutive weeks" and that § 34-27-4(b) required Santander to give her proper notice by certified mail within thirty days of thе publication of the foreclosure sale. In plaintiff's view, Santander did neither.
In September 2014, plaintiff amended her complaint for a second and final time. This time, she narrowed the focus of the lawsuit against Santander. She dropped her claim that Santander improperly held the foreclosure sale while her bankruptcy case was pending. That left but a single claim: that Santander did not comply with the notice provisions set forth in §§ 34-27-4(a) and 34-27-4(b). However, in addition tо narrowing the focus of the complaint, plaintiff also added a second plaintiff, her father, George Adams. As noted in the motion to amend, it was George, 4 not Christine, who was "the individual with whom Santander executed a mortgage" on the Pawtucket property. 5
In July 2016, Santander moved for summary judgment and filed a detailed memorandum, attached to which were thirty exhibits documenting George's default on the promissory note that was secured by the mortgage on the Pawtucket property, as well as Santander's efforts to foreclose on that property. Included in those exhibits were three documents of particular relevance: a letter dated November 16, 2012, sent by certified mail to George at thе address of the Pawtucket property; a letter sent on the same date to Christine by certified mail to the address of the Pawtucket property; and an affidavit of Santander's foreclosure counsel stating that notice of the foreclosure sale had been published in The Providence Journal on December 18, 2012, December 25, 2012, and January 1, 2013. Based on the evidence it proffered, Santander argued that it had complied with the statutory notice provisiоns of §§ 34-27-4(a) and 34-27-4(b) before the February 19, 2013 sale.
Therefоre, it should come as no surprise that, after a hearing in December 2016, a justice of the Superior Court granted Santander's motion, and judgment entered shortly thereafter. It is from that judgment that plaintiffs appeal.
II
Standard of Review
"This Court reviews a trial cоurt's grant of summary judgment
de novo
."
Mruk v. Mortgage Electronic Registration Systems, Inc.
,
III
Discussion
This appeal has less to do with whether Santander properly noticed the foreclosure sale of the Pawtucket property than it hаs to do with plaintiffs' burden in responding to Santander's motion for summary judgment. The plaintiffs first argue that Santander failed to comply with the notice provisions of §§ 34-27-4(a) and 34-27-4(b). As a result, they aver, Santander's foreclosure is null and void. Yet, as Santander points out, plaintiffs have produced no evidence to back up their claims. Indeed, the only evidence in the record reveals that Santander did in fact give notice of its foreclosure sale of the Pawtucket property in compliance with §§ 34-27-4(a) and 34-27-4(b). The plaintiffs' bare assertions otherwise-"that there remain genuine issues of material fact" and that "discovery is ongoing"-fall well short of "proving by competent evidence the existence of a disputed issue of material fact * * *."
Mruk
,
Moreover, plaintiffs contend thаt summary judgment is improper here because, as they allege, Santander also failed to comply with a notice provision that is contained in the mortgage.
6
However, our review of the record indicates that this is the first time they have raised such an argument, thereby implicating our "raise-or-waive" rule. As we have explained, "[i]n accordance with this Court's longstanding 'raise-or-waive' rule, if an issue was not properly asserted, and thereby preserved, in the lowеr tribunals, this Court will not consider the issue on appeal."
Miller v. Wells Fargo Bank, N.A.
,
The record reveals that nowhere in the complaint, first amended complaint, or second amended complaint is there any mention of or reference to a notice provision in the mortgage itself. In their second amended complaint, plaintiffs squarely presented the issue of Santander's adherence to the aforementioned statutory notice provisions. However, that complaint is silent with respect to any contractual notice provision. Moreover, the memorandum in opposition to Santander's motion for summary judgment says nothing about contractual notice.
Further compounding plaintiffs' problеm on this point is the fact that neither Christine nor George ordered or produced to this Court a transcript of the December 2016 summary judgment hearing. This is a concrete example of the sort of "risky business" associated with failing to order a transcript of the proceeding below.
See
Bellevue-Ochre Point Neighborhood Association v. Preservation Society of Newport County
,
IV
Conclusion
After reviewing the record and considering the arguments of the parties, we hold that, because there is no genuine issue of material fact with respect to whether Santander complied with the notice requirements
There appears to be some confusion as to whether George Adams remains involved in this case. Our review of the record reveals that Mr. Adams signed the notice of appeal. However, there is no docketed entry of appearance of an attorney representing Mr. Adams nor has Mr. Adams filed anything with this Court since the appeаl was docketed. Moreover, Mr. Adams did not appear at oral argument. Therefore, although the outcome of this appeal remains unchanged, it would appear that Christine Adams is the only plaintiff properly before this Court.
By the time Christine Adams filed suit in February 2014, her bankruptcy case had been closed for several months. After filing for bankruptcy in January 2013, she voluntarily dismissed her petition for bankruptcy just a month later. According to the record, that case was closed in April 2013.
The motion was based on an affidavit in which Christine Adams stated that she "was the lawful owner" of the property when she filed for bankruptcy prior to the date of foreclosure. Although the record does not specificаlly indicate what happened to the temporary restraining order that Christine Adams obtained in February 2014, Santander later moved to dissolve it.
Where necessary and in the interest of clarity, we refer to the parties by their first names. In doing so, no disrespect is intended.
Apparently, through a series of transactions, which Santander characterizes as "evasive maneuvers," Christine Adams, along with her son, obtained title to the property in March 2012. Although there may have beеn fertile ground for Santander to challenge whether she had standing to bring this case, that issue was not raised below and we need not address it now.
The plaintiffs have neither provided this Court with a copy of that mortgage nor directed us to the pertinent notice provision contained therein.
The plaintiffs also argue that Santander failed to comply with certain Treasury Regulations. However, this argument, which was raised for the first time on appeal, was not develоped to any extent, leaving us unable to consider or discuss it.
See
Wilkinson v. State Crime Laboratory Commission
,