UNITED STATES DISTRICT COTIRT DISTRICT OF RHODE ISLAND TONA ZARRA

Plaintiff
vs.

Civ. No.

1:

10-cv-00162-JNL-DLM

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., ET AL.

Defendants

MARC R. BEAUDOIN

Plaintiff
vs.

Civ.No.

1:

10-cv-00193-JNL-LDA

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., ET AL.

Defendants

DONNA O'HERN

Plaintiff
vs.

Civ.No.

1:

10-cv-00195-JNL-DLM

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., BT AL.

Defendants

JULIO FONSECA and LEE ANN FONSECA Plaintiffs

vs.

Civ.No. I : 10-cv-00468-JNL-DLM

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, rNC., ET AL.

Defendants

HOUR M. HOEIIY

Plaintiff
vs.

Civ.No. I : 10-cv-00483-JNL-LDA

GMAC MORTGAGB CORPORTATION and FEDERAL NATIONAL MORTGAGE ASSOCIATION

Defendants

NICOLE IADIMARCO Plaintiff

YS.

Civ.No. I : 10-cv-00440-JNL-DLM

NATIONAL CITY MORTGAGE, NATIONAL CITY MORTGAGE COMPANY, MORTGAGE ELECTRONIC REGISTRATIOI\ SYSTEMS, INC., RESIDENTIAL FUNDING COMPANY, LLC,. and PNC MORTGAGE

JOHN A. McLAUGHLIN and BILEEN E. MC LAUGHLIN Plaintiffs

vs.

Civ.No. I : 10-cv-000123-JNL-LDA

MORTGAGB ELECTROI'IIC REGISTRATIONS SYSTEMS, INC., BT AL.

Defendants

PLAINTIFFS' OBJECTION TO DEFENDANTS' MOTION FOR RECONSIDERATION

Now comes the Plaintiffs and hereby object to the Defendants' Motion to Reconsider this
Court's Denial of the Defendants'Motions to Dismiss on March Court made it clear that it felt that

15,2011. On that

date, this

it should wait for the Rhode Supreme Court decision in the

case

of on Bucci v. Lehman Brothers Bank, FSB 2009 WL 3328373 (R.I. Super. filed August 25,
For this Court's edification, the Bucci Supreme Court Brief was filed on it due date, July

2009).

7,2011 by this Counsel with the Rhode Island Superior Court. The Movant's papers are corect
where they state that this Court preferred to delay a final ruling on the original motions until the Rhode Island Supreme Court had completed its pending review of the Superior Court's decision. That decision has not yet been rendered.

The movants' papers are also correct where they state that another Justice of the Rhode Island Superior Courl has issued a decision, allegedly based upon the holding and rationale of

Bucci. That case, Porter v. First NLC Financial

Services. LLC. MERS. Beltway_Capital. LLC"

C.A. PC 10-2526, (R.I Superior. March 31,2011)r, is currently on appeal to the Supreme Courl.
That decision does nothing to buttress the earlier Bucci decision. In fact, if this Courl reads the
Porter case,

it will find that its ruling is scattered and unclear. In fact, in what seems to be the

ultimate holding. it lessens the impact of the Bucci decision.

The Porter decision, which was a decision based upon Rule 56 of the Rhode Island
Superior Court Rules of Civil Procedure, Summary Judgment, was largely based upon Plaintiffs

failure to provide the Court with an affidavit to counter the affidavit of the Defendant in that case. The Court in Porler attacked the Plaintiffs case because she did not satisfy by competent
evidence "the existence of disputed issues of material

fact."

The Porter Court pointed out that

the "Plaintiff has included with her objection no affidavits and no reference to evidence of any

kind."

The Superior Court went on to write that "Plaintiffs citation to case law or any other sorl

' The Defendants claim that Judge Rubine will rule for MERS in all cases pending before him is nothing more than wishful thinking. Each case before Judge Rubine is based upon its own facts and pleadings. In fact, to this date, this counsel has not had a single ruling against him in the Judge Rubin's Court relative to MERS' Dispositive Motions. This is a matter of record. not
conjecture.

of legal authority has been similarly

sparse, sporadic and scant, both

in writing and in oral

argument." Clearly, the Plaintiff in Porter did nothing to address the alleged facts presented by
the Defendants and offered no case law or argument to rebut the arguments and case law cited by the Defendants. This Court should consider the fact that Plaintiff failed procedurally to even put up a defense in the Porter case.

The Porter Courl did state that it "adopted the rationale of

Bucci." This being the case,

its value to this Court simply elucidates the fact that the Supreme Court decision in Bucci will be

dispositive on this case as w-ell. The Superior Court position on this issue.

in&4ef

is in agreement with the Plaintiffs'

This Court finds that Justice Silverstein's rationale in Bucci v. Lehman Bros. Bank, (dealing with similar issues and similar facts) to be well-reasoned, thoughtful and concise. 2009 WL 3328373 (R.I. 2009) Based upon Plaintiff s inability to distinguish the facts of the case at bar from Bucci, except for certain bankruptcy issues discussed supra, this Court will proceed to grant Defendants' Motion for Summary Judgment by adopting the rationale used in the Bucci case.
In essence, the Porter decision is a redux of the Bucci decision which is on appeal. It is
no more persuasive that the Bucci decision and, in fact, it was based largely on the fact that Counsel for the Plaintiff therein did not mount a defense. For that reason, the existing Order

of

this Court should not be altered or modified because there has been no change in circumstances
to warant the same.

The Defendants go on in their motion to ask more of the Court than the caption of its

motion would lead one to believe. The Defendants have asked for a new ruling on new issues from this Court while casting it as a Motion to Reconsider. The Defendants ask this Court to not only reconsider its standing order, but to "nalTow the scope" of all of these pending actions by

issue a Ruling on Plaintiffs' standing to attack the validity of the assignments. The Defendants,

without authority, incorrectly conclude that assignments related to documents governed by $3aI

l-1

et. seq. of the Rhode Island General Laws, entitled Form and Effect of Conveyances, are

simple contract issues. This statement is not true and a brief review of the aforesaid statute
reveals that Assigrunents are considered conveyance under the law of Rhode Island. In fact,

$34-l l-12, Statutory Forms, at Form (6) provides the Statutory Form for an Assignment of
Mortgage in the State of Rhode Island. It is clear that the legislature identified Mortgage Assignments as a conveyance of land as set forth in Rhode Island General Laws $34-l l-1.

Further, 534-11-24 of the Rhode Island General Laws entitled Effect of Assignment of
Mortgage, clearly sets forth that an Assignment of Mortgage is a conveyance that is firmly grounded in a Mortgage Deed.2 The last line of this particular portion of the statute establishes that an assignment is much more than a mere contract. It directly refers to "all the powers in the mortgage deed granted and contained." Clearly. an Assignment of Mortgage in Rhode Island is grounded in statute and is defined by said statutes as a conveyance and not a mere contract. Others have made the error of concluding that mortgagors are not parlies to mortgage
assignments, but the statutes set forth herein reveal otherwise.

following the form entitled "Assignment of Mortgage" shall, when duly executed. have the force and effect of granting, bargaining, transfering and making over to the assignee, his or her heirs, executors, administrators, and assigns, the mortgage deed with the note and debt thereby secured, and all the right, title and interest of the mortgagee by virtue thereof in and to the estate described therein, to have and to hold the mortgage deed with the privileges and appurtenances thereof to the assignee. his or her heirs, executors, administrators and assigns in as ample manner as the assignor then holds the same, thereby substituting and appointing the assignee and his or her heirs, executots, administrators and assigns as the attomey or attorneys irrevocable of the mortgagor under and with all the powers in the mortgage deed granted and contained. History of Section. (P.L.1927, ch. 1056, S 15; G.L. 1938, ch.436. $ 14;G.L.1956, g 34-11-24.)

'

g S+-f

f -24 Effect of assignment of mortgage. - An assignment of mortgage substantially

ARGUMENT

The Plaintiffs do not dispute that this Courl has great discretion and broad authority to grant or deny a motion for reconsideration. The Defendants, suggest to this Courl that it should reconsider its previous order in this case.

1.

"A motion for reconsideration is appropriate where the court has misapprehended the

facts, a party's position, or the controlling

law."

Platten v. HG Bermuda Exempted Ltd.,437

F.3d 118, 139 (1st Cir.2006). The Court in this case did not misapprehend the facts of this case, in fact, the Courl was very clear and concise in discussing the facts of the case and in reaching
the decision that it reached. Attomey Rosen, who argued for the Movants, was very precise in his presentation regarding the facts, position of the parties and the controlling

law. This is also

true of the Plaintiffs. They presented clearly and concisely the facts, their position and their
statements of controlling

law. This Court engaged in meaningful discussing regarding the same

and came to an informed decision which should not be disturbed at this time.

2.

"A further basis for

motion for reconsideration is a significant change in the law or lacts

since the submission of the issues to the Court by the pafties." Sandoval Diaz v. Sandoval Orozco, CIV. 0l-1022JAGGAG. 2005

WL

1501672 (D.P.R.

June24,2005). There

has been no

substantive new case law in Rhode Island since this Court entered its standing Order. The Superior Courl in Porter v. First NLC Financial Services. LLC. MERS. Beltway Capital. LLC.

C.A. PC 10-2526, (R.l Superior, March 31,2011) merely parroted what had been already stated by the Superior Court in Bucci v. Lehman Brothers Bank, FSB 2009 WL 3328373 (R.I. Super.

filed August25,2009). The fact that the Justice Rubine, the Motion Justice in Porter, runs the
MERS calendar does not establish that MERS has received his blessing on all pending and future

cases in Rhode

Island. In fact, he has been very clear in rulings that each case has its own life

based upon the facts and the

law. He is doing what

a Justice should do

with his calendar and not

simply rubber stamping MERS cases as they come before

him. To do otherwise would render

the concepts of Due Process and Justice dead, like withering fruit on the vine.

The Movants again present this Court with In re Huggins, 357 B.R. 180, 183 (Bankr. Mass. 2006). This case was cited in Bucci and in Porter. The quote provided by the Movants
and the argument related thereto was briefed in all of the consolidated cases and has been briefed

extensively in the Bucci Supreme Court Brief filed on July

l,20l l

in the Rhode Island Supreme

Court. This is not a change in the law. This case was decided in 2006 and has already been
distinguished by the Plaintiffs. The Movants are actually asking this Court to reconsider its standing Order on a five (5) year old case of which the Court has already been fully apprised and no new case law at all.

This does not satisfy the language of the Court in Sandoval Diaz v. Sandoval Orozco,

CIV. 01-1022JAGGAG, 2005 WL 1501672 (D.P.R. June24,2005) and the Order of this Court
should not be disturbed pending the Bucci decision which
State of Rhode

will

set the law of the land for the

Island. This Court,

based upon a Superior Court case that came down after

Bucci. should not take the ball away from the Supreme Court of the State of Rhode Island
relative to this case involving Rhode Island Statutes and Property Rights. The Movants' argument that this Court apply Bucci while on appeal is totally inappropriate. This Court made the correct ruling and entered an Order that said it would give deference to the Rhode Island
Supreme Court. The marketability of seven (7) titles hardly seems grounds for this Court to

undo its own thoughtful decision and for this Court to "take the case away from the Rhode Island
Supreme Couft" while its decision gets closer by the day.

The argument regarding Discovery Costs is moot as the Plaintiffs have agreed to delay discovery at the request of the Defendants.

3.

There was no manifest injustice done to the Movants when the standing Order was

entered and nothing has changed which denying this motion

will

cause to work a Manifest

injustice on the Defendants if this motion is denied.

At paragraph 1l of the Movants' motion, they essentially are arguing

was not before the Court when

a new

motion that

it issued its standing Order. The Movants are now asking the

Court to rule on the validity of assignments. This issue has been touched upon earlier herein. The Movants inconectly state that Assignments of Mortgages are contract matters. Perhaps that is true in other jurisdictions, but that is not true in the State of Rhode Island. In any event, the

Plaintiffs in these cases have argued that the MERS mortgage itself is void. They have also
alleged that the Assignments are void as a matter of law pursuant to $34-1i-1 of the Rhode Island General

Laws.

The Plaintiffs contend that the assignments, being void, do not exist and

that any challenge is based upon their non-existence, not necessarily upon their content.

This issue was not argued to the Court previously and its inclusion in this Motion to
Reconsider, is inappropriate and not properly before the Court at this time.

The same holds true for the remaining issues raised in this Motion to Reconsider. Quite

frankly, if the Rhode Island Supreme Court decides in favor of MERS on Bucci, the remaining

issues

will all

become moot and that

will most certainly serve the stated interest ofjudicial

economy.

CONCLUSION
For all of the foregoing reasons and based upon the facts and law set forth in the original memorandum of law in objection to the Defendants'Motion to Dismiss, the Plaintiffs pray this Court to deny this Motion to Reconsider and all of its subparts, with prejudice.

Respectfu lly the Plaintiffs,

By their Attorney

George E. Babcock, Esq #37 47

574 Central Avenue Pawtucket, RI0286l 40r-724-1904 george. babcock@babcocklawoffi ces. com Dated July 6,2001

CERTIFICATE OF SERVICE I hereby certify that this document was filed through the Court's ECF System and will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on July 6,

20tt.
George E. Babcock