                                                                   Supreme Court

                                                                   No. 2012-94-Appeal.
                                                                   (PC 10-2526)


            Osaretin A. Porter                :

                     v.                       :

 First NLC Financial Services, LLC et al.     :



                                            ORDER

       The plaintiff, Osaretin A. Porter, appeals from the Superior Court’s grant of summary

judgment against her and in favor of Mortgage Electronic Registration Systems, Inc. (MERS)

and Beltway Capital, LLC (Beltway). This appeal came before the Court for oral argument on

May 3, 2016 pursuant to an order directing the parties to appear and show cause why the issues

raised in this appeal should not summarily be decided. We conclude that cause has not been

shown and that the appeal may be decided at this time. For the reasons set forth herein, we affirm

the judgment of the Superior Court.

       It is well established that this Court reviews the grant of a motion for summary judgment

in a de novo manner, applying the same standards and rules that the motion justice

applied. Pichardo v. Stevens, 55 A.3d 762, 765 (R.I. 2012); see DePasquale v. Cwiek, 129 A.3d

72, 75 (R.I. 2016). This Court will affirm the trial court’s grant of summary judgment “only if,

after reviewing the admissible evidence in the light most favorable to the nonmoving party, we

conclude that no genuine issue of material fact exists and that the moving party is entitled to

judgment as a matter of law.” Great American E & S Insurance Co. v. End Zone Pub & Grill of

Narragansett, Inc., 45 A.3d 571, 574 (R.I. 2012) (internal quotation marks omitted); see Mutual

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Development Corp. v. Ward Fisher & Co., LLP, 47 A.3d 319, 323 (R.I. 2012). The nonmoving

party bears the burden of producing “competent evidence that prove[s] the existence of a

disputed issue of material fact[.]” Moura v. Mortgage Electronic Registration Systems, Inc., 90

A.3d 852, 856 (R.I. 2014) (internal quotation marks omitted). The nonmoving party “cannot rest

upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions.” Id.

(quoting Mruk v. Mortgage Electronic Registration Systems, Inc., 82 A.3d 527, 532 (R.I. 2013)).

       In a memorandum filed pursuant to Article I, Rule 12(A) of the Supreme Court’s Rules of

Appellate Procedure, plaintiff raised a number of arguments, most of which have since been

resolved by our decision in Bucci v. Lehman Brothers Bank, FSB, 68 A.3d 1069 (R.I. 2013). The

following are the only contentions by plaintiff that remain unresolved after the issuance of Bucci:

(1) that the agency relationship between MERS and First NLC Financial Services, LLC (First

NLC) was terminated when First NLC declared bankruptcy, resulting in the inability of MERS to

foreclose on plaintiff’s property; and (2) that the statutory foreclosure scheme is unconstitutional

because it allows “property rights to be taken without judicial review” in violation of plaintiff’s

due process rights. In a post-Bucci memorandum filed in accordance with our order of March

19, 2013, plaintiff made the following additional arguments: (1) that the purported First NLC

bankruptcy terminated any MERS agency relationship with First NLC and that the motion justice

erred in failing to take judicial notice of First NLC’s bankruptcy; (2) that her verified complaint

raised issues of fact relating to the identity of the servicer of her loan and “the factual existence

of an agency relationship between MERS and any entity as a principal;” and (3) that the

foreclosure process was “defective” and did not comply with the statutory foreclosure scheme in

that MERS bid “without owning the note and then assign[ed] its bid to Beltway Capital LLC

several days after the auction without having continued the auction.”



                                                -2-
       With respect to plaintiff’s contentions that the bankruptcy of First NLC terminated the

agency relationship between MERS and First NLC and that the motion justice erred in failing to

take judicial notice of the bankruptcy pursuant to Rule 201(d) of the Rhode Island Rules of

Evidence, we note that the record contains no competent evidence to establish that First NLC in

fact declared bankruptcy; and, similarly, plaintiff has not demonstrated that she requested that

the motion justice take judicial notice of the bankruptcy of First NLC. See Mruk, 82 A.3d at

532; see also Rule 201(d) (providing that a “court shall take judicial notice if requested by a

party and supplied with the necessary information”). Accordingly, this issue is not properly

before us.

       The plaintiff also failed to provide competent evidence sufficient to raise a genuine issue

of material fact as to the identity of the servicer of the loan and whether there was evidence of an

agency relationship between MERS and any other entity. See Mruk, 82 A.3d at 532. By

contrast, defendants submitted affidavits that provided a sufficient basis for the grant of summary

judgment.

       Furthermore, the plaintiff’s contention that the statutory foreclosure scheme violated her

constitutional due process rights was not raised below. As such, the “raise or waive” rule, to

which this Court staunchly adheres, applies; accordingly, the plaintiff’s due process contention is

not properly before us. State v. Figuereo, 31 A.3d 1283, 1289 (R.I. 2011) (“It is well-settled that

this Court will not review issues that were not presented to the trial court in such a posture as to

alert the trial justice to the question being raised.”) (internal quotation marks omitted). And, we

would note that the criteria for invoking the narrow exception to that rule are absent from the

instant case. See In re Shy C., 126 A.3d 433, 435 (R.I. 2015). For the same reason, we are

unable to consider the plaintiff’s specific contention that the instant foreclosure did not comply



                                               -3-
with the statutory foreclosure scheme in that MERS bid “without owning the note and then

assign[ed] its bid to Beltway Capital LLC several days after the auction without having

continued the auction” due to the fact that she did not so contend in the Superior

Court. See id.; Figuereo, 31 A.3d at 1289.

       We have carefully reviewed all materials submitted to this Court by the plaintiff and all

of the arguments made therein; and, with respect to the issues that have been preserved, we have

been unable to perceive any merit in the plaintiff’s contentions. Accordingly, the plaintiff’s

appeal is denied and dismissed.



       Entered as an Order of this Court, this 13th day of June, 2016.

                                                     By Order,



                                                                  /s/
                                                     Clerk




                                               -4-
                          RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                               Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:      Osaretin A. Porter v. First NLC Financial Services, LLC et al.

CASE NO:            No. 2012-94-Appeal.
                    (PC 10-2526)

COURT:              Supreme Court

DATE ORDER FILED:   June 13, 2016

JUSTICES:           Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:         N/A – Court Order

SOURCE OF APPEAL:   Providence County Superior Court

JUDGE FROM LOWER COURT:

                    Associate Justice Allen P. Rubine

ATTORNEYS ON APPEAL:

                    For Plaintiff: George E. Babcock, Esq.

                    For Defendant: Scott C. Owens, Esq.
