May 11, 2018




                                                                      Supreme Court

                                                                      No. 2017-73-Appeal.
                                                                      (PC 14-622)


               Christine Adams et al.            :

                         v.                      :

               Santander Bank, N.A.              :




                   NOTICE: This opinion is subject to formal revision before publication in
                   the Rhode Island Reporter. Readers are requested to notify the Opinion
                   Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
                   Rhode Island 02903, at Tel. 222-3258 of any typographical or other
                   formal errors in order that corrections may be made before the opinion is
                   published.
                                                                 Supreme Court

                                                                 No. 2017-73-Appeal.
                                                                 (PC 14-622)


            Christine Adams et al.             :

                      v.                       :

            Santander Bank, N.A.               :


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

                                          OPINION

         Justice Flaherty, for the Court. The 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 that this case may be decided without further

briefing or argument. For the reasons set forth below, we affirm the judgment of the Superior

Court.




1
 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 appeal 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.


                                                -1-
                                                  I

                                         Facts and Travel

       On February 19, 2013, Santander conducted a foreclosure sale on property located in

Pawtucket. According 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. The complaint also

alleged that plaintiff had filed for bankruptcy in advance of Santander’s scheduled foreclosure

sale, which, she alleged, should have operated to stay the sale. 2 The plaintiff also moved for and

obtained a temporary restraining order enjoining Santander from selling or transferring the

Pawtucket property. 3

       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 the

publication of the foreclosure sale. In plaintiff’s view, Santander did neither.




2
  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.
3
  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 specifically indicate what happened to the temporary restraining order that
Christine Adams obtained in February 2014, Santander later moved to dissolve it.


                                                -2-
       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 to 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 the 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 provisions of §§ 34-27-4(a) and 34-27-4(b) before

the February 19, 2013 sale.




4
  Where necessary and in the interest of clarity, we refer to the parties by their first names. In
doing so, no disrespect is intended.
5
   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 been 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.


                                               -3-
       In response, counsel for plaintiffs filed a one-page memorandum in opposition to the

motion for summary judgment. In that document, plaintiffs’ counsel cited two reasons for

opposing the motion. First, he wrote, “the [p]laintiffs state that there remain genuine issues of

material fact such that [Santander] is not entitled to [s]ummary [j]udgment, as a matter of law.”

He did not, however, elaborate on or even identify the material facts that he claimed were in

dispute. Second, he averred “that discovery is ongoing,” and that forthcoming depositions of

Santander’s employees would “call into question the validity of the mortgage document * * *.”

The record reveals that, aside from filing that cursory memorandum in opposition to Santander’s

motion, there were no documents, depositions, or affidavits produced to counter Santander’s

evidence of its compliance with §§ 34-27-4(a) and 34-27-4(b).

       Therefore, 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 court’s grant of summary judgment de novo.” Mruk v.

Mortgage Electronic Registration Systems, Inc., 82 A.3d 527, 532 (R.I. 2013). Like the trial

justice, “[i]n deciding a motion for summary judgment, [we] view[] the evidence in the light

most favorable to the nonmoving party.” Id. “Summary judgment is appropriate when no

genuine issue of material fact is evident from ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits if any,’ and * * * the moving

party is entitled to prevail as a matter of law.” Id. (quoting Swain v. Estate of Tyre, 57 A.3d 283,

288 (R.I. 2012)). Once a party has moved for summary judgment, “[t]he nonmoving party bears




                                               -4-
the burden of proving by competent evidence the existence of a disputed issue of material fact

and cannot rest upon mere allegations or denials in the pleadings, mere conclusions or mere legal

opinions.” Id. (quoting Daniels v. Fluette, 64 A.3d 302, 304 (R.I. 2013)). Still, we are mindful

“that summary judgment is to be employed cautiously because it is such an extreme remedy[.]”

Estate of Giuliano v. Giuliano, 949 A.2d 386, 394 (R.I. 2008).

                                                III

                                           Discussion

       This appeal has less to do with whether Santander properly noticed the foreclosure sale of

the Pawtucket property than it has 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, 82 A.3d at 532 (quoting

Daniels, 64 A.3d at 304). “As we have often explained, ‘[o]nce the moving party establishes

grounds for [summary] judgment, the opposing party, who counters that there is a material

factual dispute, * * * must set forth specific facts that would constitute a genuine issue for

resolution at trial.’” McGovern v. Bank of America, N.A., 91 A.3d 853, 858 (R.I. 2014) (quoting

Riel v. Harleysville Worcester Insurance Co., 45 A.3d 561, 570 (R.I. 2012)). Once Santander

established that it complied with §§ 34-27-4(a) and 34-27-4(b), plaintiffs “ha[d] an affirmative




                                               -5-
duty to demonstrate * * * a genuine issue of fact” showing otherwise. Id. (quoting Robert B.

Kent et al., Rhode Island Civil Procedure § 56:5, VII-28 (West 2006)). This they have failed to

do.

       Moreover, plaintiffs contend that 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 lower tribunals, this Court will not consider the issue on

appeal.” Miller v. Wells Fargo Bank, N.A., 160 A.3d 975, 980 (R.I. 2017).

       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’ problem 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, 151 A.3d 1223, 1229 n.8 (R.I. 2017)

(“The decision to pursue an appeal without ordering the full transcript of the Superior Court

6
  The plaintiffs have neither provided this Court with a copy of that mortgage nor directed us to
the pertinent notice provision contained therein.


                                               -6-
proceeding is ‘risky business.’” (quoting Holden v. Salvadore, 964 A.2d 508, 513 (R.I. 2009))).

We conclude without hesitation that the issue of whether Santander complied with any

contractual pre-foreclosure notice provision has been waived. See Miller, 160 A.3d at 980. 7

                                               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 of §§ 34-27-4(a) and 34-27-4(b), summary judgment was

appropriate in this case. See Mruk, 82 A.3d at 532. Accordingly, we affirm the judgment of the

Superior Court. The papers shall be remanded to that court.




7
  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 developed to any
extent, leaving us unable to consider or discuss it. See Wilkinson v. State Crime Laboratory
Commission, 788 A.2d 1129, 1131 n.1 (R.I. 2002) (“Simply stating an issue for appellate review,
without a meaningful discussion thereof or legal briefing of the issues, does not assist the Court
in focusing on the legal questions raised, and therefore constitutes a waiver of that issue.”).


                                              -7-
STATE OF RHODE ISLAND AND                                    PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Christine Adams et al. v. Santander Bank, N.A.
                                     No. 2017-73-Appeal.
Case Number
                                     (PC 14-622)
Date Opinion Filed                   May 11, 2018
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Francis X. Flaherty

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Maureen Keough
                                     For Plaintiff:

                                     Corey J. Allard, Esq.
Attorney(s) on Appeal
                                     For Defendant:

                                     Matthew A. Kane, Esq.




SU-CMS-02A (revised June 2016)
