                                                              Supreme Court

                                                              No. 2012-298-Appeal.
                                                              (PC 11-4547)



          William Chhun et al.              :

                   v.                       :

Mortgage Electronic Registration Systems,   :
               Inc., et al.




             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 Telephone
             222-3258 of any typographical or other formal errors in order that
             corrections may be made before the opinion is published.
                                                                  Supreme Court

                                                                  No. 2012-298-Appeal.
                                                                  (PC 11-4547)



            William Chhun et al.              :

                     v.                       :

Mortgage Electronic Registration Systems,     :
               Inc., et al.


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


                                         OPINION

         Justice Goldberg, for the Court.         This case came before the Supreme Court on

December 10, 2013, pursuant to an order directing the parties to appear and show cause why the

issues raised in this appeal should not be decided summarily. The plaintiffs, William Chhun and

Joli Chhim (plaintiffs), appeal from a Superior Court judgment granting the motion to dismiss of

the defendants, Mortgage Electronic Registration Systems, Inc. (MERS),1 Domestic Bank

(Domestic), Aurora Loan Services, LLC (Aurora), and Deutsche Bank National Trust Company

(Deutsche Bank) (collectively, defendants). After considering the written and oral arguments

advanced by counsel, we are satisfied that cause has not been shown and that this appeal may be

decided at this time. For the reasons set forth below, we vacate the judgment of the Superior

Court.




1
 For more information on the role of MERS in the mortgage industry, see Bucci v. Lehman
Brothers Bank, FSB, 68 A.3d 1069, 1072-73 (R.I. 2013).
                                               -1-
                                        Facts and Travel

       On a motion to dismiss, the facts are gleaned from the complaint; we assume all of the

allegations in the complaint are true and resolve any doubts in favor of the plaintiff. See

Narragansett Electric Co. v. Minardi, 21 A.3d 274, 278 (R.I. 2011). On April 24, 2006, William

Chhun and Joli Chhim executed a mortgage (the mortgage) on 11 Wakefield Avenue in

Cranston. The mortgage identified plaintiffs as “Borrower,” Domestic as “Lender,” and MERS

as “a separate corporation that is acting solely as nominee for Lender and Lender’s successors

and assigns.”2

       On September 10, 2010, MERS purported to assign the mortgage to Aurora.                 The

Corporate Assignment of Mortgage (the assignment) is endorsed by MERS, “as nominee for

Domestic Bank [its] Successors or Assigns.” It is signed by “Theodore Schultz, Vice-President”

(Schultz).   The complaint, however, alleges that Schultz “had no authority to assign” the

mortgage. More specifically, plaintiffs allege that Schultz was “an employee of Aurora, not a

Vice-President or Assistant Secretary of MERS.” Furthermore, plaintiffs allege that MERS did

not order the assignment to Aurora.3

       On August 5, 2011, plaintiffs filed a three-count complaint, seeking a declaratory

judgment, quiet title, and punitive damages. The complaint alleges that both MERS and Aurora

attempted to invoke the power of sale. Although the complaint does not provide any details

about the foreclosure process, it does allege that “Aurora or the successful bidder at the




2
  Although not attached to the complaint, a later filing includes a copy of an adjustable rate note
also signed by William Chhun on April 24, 2006, promising to pay $224,000 in principal plus
interest to Domestic.
3
 The plaintiffs also allege that “[t]he assignment from MERS to Aurora is void due to failure of
consideration.”
                                               -2-
foreclosure sale took a foreclosure deed.”4 The plaintiffs requested, inter alia, that the court

declare that the assignment is void, that the foreclosure sale is void, and that plaintiffs own a fee

simple interest in the property.

       The defendants moved to dismiss the complaint in accordance with Rule 12(b)(6) of the

Superior Court Rules of Civil Procedure, alleging that plaintiffs lacked standing to challenge the

assignment of the mortgage and that plaintiffs failed to state a claim upon which relief can be

granted. The plaintiffs responded with a lengthy pleading in opposition to defendants’ motion.

The Superior Court justice granted the motion to dismiss, concluding that plaintiffs did not have

standing to seek relief based on the assignment because they were neither an assignor nor an

assignee of the assignment. Alternatively, he also concluded that, even if plaintiffs did have

standing, they had “failed to allege facts in their Complaint which ‘raise a right to relief above

the speculative level,’” quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The

Superior Court justice further stated that Aurora properly was the mortgagee prior to the

commencement of foreclosure proceedings and that the identity of the note holder was irrelevant.

                                       Standard of Review

       The articulation of the standard of review on a motion to dismiss was raised as an issue in

this case. Under this Court’s traditional explication of the standard, a Rule 12(b)(6) motion to

dismiss should be granted only “when it is clear beyond a reasonable doubt that the plaintiff

would not be entitled to relief from the defendant under any set of facts that could be proven in

support of the plaintiff’s claim.” Palazzo v. Alves, 944 A.2d 144, 149-50 (R.I. 2008) (quoting

Ellis v. Rhode Island Public Transit Authority, 586 A.2d 1055, 1057 (R.I. 1991)); see also

McKenna v. Williams, 874 A.2d 217, 225 (R.I. 2005) (“[I]t is our function to examine the

4
  In their Rule 12A counterstatement, defendants contend—without citation—that Aurora
conducted a foreclosure sale on August 3, 2011.
                                                -3-
complaint to determine if plaintiffs are entitled to relief under any conceivable set of facts.”). In

undertaking this review, we are “confined to the four corners of the complaint and must assume

all allegations are true, resolving any doubts in plaintiff’s favor.” Minardi, 21 A.3d at 278.

       Generally, this Court looks to Federal jurisprudence for guidance or interpretation of

Rule 12(b). See Hall v. Kuzenka, 843 A.2d 474, 476 (R.I. 2004) (“[W]here the Federal rule and

our state rule are substantially similar, we will look to the Federal courts for guidance or

interpretation of our own rule.” Quoting Heal v. Heal, 762 A.2d 463, 466-67 (R.I. 2000)).

Additionally, we have noted that “Rhode Island Rule 12(b) is nearly identical to Rule 12(b) of

the Federal Rules of Civil Procedure.” Hall, 843 A.2d at 476-77. In recent years, however, the

Federal courts have significantly altered their interpretation of the standard of review applicable

to a motion to dismiss, and the Superior Court justice in this case relied on that interpretation.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Twombly, 550 U.S. at 555. Under this

standard, “[f]actual allegations must be enough to raise a right to relief above the speculative

level,” and a plaintiff must “nudge[] their claims across the line from conceivable to plausible.”

Twombly, 550 U.S. at 555, 570.5 “[T]he tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of

the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

Iqbal, 556 U.S. at 678. Significantly, “the Federal Rules do not require courts to credit a

complaint’s conclusory statements without reference to its factual context.” Iqbal, 556 U.S. at

686. “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.”

5
 In Twombly, the Supreme Court stated that the “no set of facts” language originating in Conley
v. Gibson, 355 U.S. 41, 45-46 (1957)—and on which this Court’s articulation of the traditional
Rhode Island standard is based—“has earned its retirement.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 562, 563 (2007). Thus, it is clear that the new Federal standard cannot be blended
with the traditional Rhode Island standard.


                                                -4-
Id. at 679. “Determining whether a complaint states a plausible claim for relief * * * [is] a

context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.”      Id.   “Where a complaint pleads facts that are merely consistent with a

defendant’s liability, it stops short of the line between possibility and plausibility of entitlement

to relief.” Id. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).

       This Court has not yet addressed whether continued adherence to our traditional Rhode

Island standard is appropriate or whether the new Federal guide of plausibility should be

adopted. However, we are satisfied that this is not the case to answer such an important question

because our decision under either articulation of the Rule 12(b)(6) motion to dismiss standard

would be the same. Accordingly, we leave the Twombly and Iqbal conundrum for another day.

                                              Analysis

                                             Standing

       The Superior Court justice held that plaintiffs lacked standing to challenge the

assignment of the mortgage on their home.             Recently, this Court held that, in limited

circumstances, “homeowners in Rhode Island have standing to challenge the assignment of

mortgages on their homes to the extent necessary to contest the foreclosing entity’s authority to

foreclose.” Mruk v. Mortgage Electronic Registration Systems, Inc., No. 2012-282-A., slip op.

at 13 (R.I., filed Dec. 19, 2013). The plaintiffs in this case contest Aurora’s authority to

foreclose, alleging that the mortgage was not validly assigned. In light of Mruk, we are satisfied

that plaintiffs have standing to prosecute this claim.

                                      The Motion to Dismiss

       The Superior Court justice concluded that, even if plaintiffs had standing, their

“allegations with respect to the invalidity of the assignment of the Mortgage interest are merely



                                                -5-
‘conclusory statements’ which are insufficient to survive a motion to dismiss.” Before this

Court, defendants contend that “the Superior Court utilized the Rhode Island pleading standard.”

Although the Superior Court justice stated that “[p]laintiffs’ [c]omplaint cannot survive a Rule

12(b)(6) motion even under the more forgiving pleading standard articulated in [Barrette v.

Yakavonis, 966 A.2d 1231 (R.I. 2009) and Palazzo v. Alves, 944 A.2d 144 (R.I. 2008)],” at the

crucial points of the decision, the Superior Court justice employed Twombly and Iqbal.

Regardless of which standard the decision rests upon, we conclude that the allegations in the

complaint are sufficient to survive a motion to dismiss under both our traditional standard and

the newer Federal standard.

       Paragraph 12 of the complaint alleges: “On or about September 10, 2010, MERS

attempted to assign this Mortgage to Aurora. * * * Theodore Schultz signed. Theodore Schultz

had no authority to assign.” Thus, the plaintiffs have alleged that the one person who signed the

mortgage assignment did not have the authority to do so. This allegation is buttressed by other

allegations in the complaint. Paragraph 13 states that “Theodore Schultz was an employee of

Aurora, not a Vice-President or Assistant Secretary of MERS.” Paragraph 17 alleges that

“MERS did not order the assignment to Aurora.” Finally, paragraph 19 contends that “[n]o

power of attorney from MERS to either Theodore Schultz or Aurora is recorded and referenced

in the subject assignment.” These allegations, if proven, could establish that the mortgage was

not validly assigned, and, therefore, Aurora did not have the authority to foreclose on the

property. Accordingly, the complaint states a plausible claim upon which relief can be granted,

and it is not “clear beyond a reasonable doubt that the plaintiff would not be entitled to relief

from the defendant under any set of facts that could be proven in support of the plaintiff’s

claim.” Palazzo, 944 A.2d at 149-50 (quoting Ellis, 586 A.2d at 1057); see Iqbal, 556 U.S. at



                                              -6-
678-80 (articulating plausibility standard). Thus, the defendants’ Rule 12(b)(6) motion was

improperly granted.

                                          Conclusion

       For the reasons set forth in this opinion, we vacate the judgment of the Superior Court

and remand the case for further proceedings.




                                               -7-
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        William Chhun et al. v. Mortgage Electronic Registration Systems,
                      Inc., et al.

CASE NO:              No. 2012-298-Appeal.
                      (PC 11-4547)

COURT:                Supreme Court

DATE OPINION FILED: February 3, 2014

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

WRITTEN BY:           Associate Justice Maureen McKenna Goldberg

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Allen P. Rubine

ATTORNEYS ON APPEAL:

                      For Plaintiffs: George E. Babcock, Esq.

                      For Defendants: Charles A. Lovell, Esq.
