Queally v. Hoviss

Filing 14

OPINION AND ORDER granting 11 Motion for Default Judgment. So Ordered by Judge William E. Smith on 12/2/11. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
______________________________
)
)
)
)
v.
)
C.A. No. 10-002-S
)
ESTATE OF DAVID I. HOVISS,
)
Defendant.
)
______________________________)

OPINION AND ORDER
PHYLLIS PATRICIA QUEALLY,
Plaintiff,

William E. Smith, United States District Judge.
Plaintiff Phyllis Patricia Queally filed the present action
for a declaratory judgment stating that the mortgage granted to
David I. and Catherine A. Hoviss (collectively the “Hovisses”)
on

property

Shoreham,

previously

County

of

owned

by

Washington,

Queally
State

in
of

the

Town

Rhode

of

New

Island

and

Providence Plantations, known as Assessors Plat 17 Lot 6, off
Connecticut

Avenue,

Block

“Property”) is discharged.

Island,

Rhode

Island

02907

(the

Before the Court is Queally’s motion

for entry of default judgment.
On

a

motion

for

entry

of

default

judgment,

alleged in the complaint are taken as true.
Fonovisa, 277 F.3d 59, 62-63 (1st Cir. 2002).
enters

default,

“the

Court

may

grant

a

the

facts

Ortiz-Gonzalez v.
Once the clerk
judgment

in

the

plaintiff’s

favor

on

all

claims

supported

allegations in [the] . . . Complaint.’”

by

‘well-pleaded

SEC v. Locke Capital

Mgmt., Inc., 726 F. Supp. 2d 105, 106 (D.R.I. 2010) (quoting
Eisler v. Stritzler, 535 F.2d 148, 153 (1st Cir. 1976)).

For

the reasons set forth below, the motion is granted.
I.

Background
Queally purchased the Property in April of 1994 from the

Hovisses, granting a mortgage to them for $93,750.00 that was
properly recorded.

Queally avers that she paid the mortgage in

full on or about April 1, 2004 but that she “did not know she
should get a release of the mortgage and did nothing about one
until she sold the property.”
now deceased.

(Compl. ¶ 6.)

The Hovisses are

(Compl. ¶ 11.)

Queally has since sold the property to a third party and
agreed to clear the property’s title of the mortgage.

(Compl. ¶

7.)

She initially prepared an affidavit pursuant to R.I. Gen.

Laws

§

34-26-8,

insufficient.

but

a

title

insurance

company

deemed

it

(Compl. ¶ 9.)

Queally filed suit in this Court on January 4, 2010 seeking
declaratory relief.

Specifically, Queally asks the Court to

find that the affidavit Queally presented to the title company
is sufficient to clear title under R.I. Gen. Laws § 34-26-8.

2

Alternatively,

Queally

asks

the

Court

to

use

its

equitable

powers to discharge the mortgage.
The Hovisses’ only known heir and daughter, Elizabeth Ann
Goldschmidt,

signed

February 4, 2010.

a

waiver

of

the

service

of

summons

on

Although requested to do so, Ms. Goldschmidt

did not provide any information regarding other heirs.

In a

further attempt to locate other heirs, Queally also inquired
with the Surrogates Court of Bronx County, New York to determine
if an estate or representative was on file because Riverdale,
New York was the last known residence of the Hovisses before
death.

However, there was no estate listed for David Hoviss.

A

motion for service by publication was granted on September 13,
2010.

The

notice

was

published

in

the

Riverdale

Press,

newspaper of general circulation in Riverdale, New York.

a

There

has been no response to the service by publication.
Thereafter,

default

entered,

Queally

filed

a

motion

for

default judgment, and this Court held a hearing on the motion.
II.

Discussion
A.

R.I. Gen. Laws § 34-26-8

Queally argues that the Court should find the affidavit
provided to the title insurance company sufficient to clear the
title of the property notwithstanding the statutory requirement
that the mortgagee provide a payoff statement.
3

Section

34-26-8

allows

a

title

insurer

or

a

licensed

attorney to file an affidavit of release of mortgage if the
mortgagee fails to file the appropriate release within thirty
days of receipt of final payment.

§ 34-26-8(b).

There are

eight necessary requirements for the satisfaction of § 34-26-8.
See R.I. Gen. Laws § 34-26-8(c) & (e).
those

requirements

because

the

statute

Queally has not met
requires

a

payoff

statement and Queally, despite reasonable attempts to acquire
one, has been unable to do so.1
B.

Equity

While the Court lacks an instrument showing that Queally
actually made all the payments, Queally has provided the Court
with tangible evidence to show that she, in fact, did pay the
mortgage in full.
amortization

Queally and the Hovisses agreed to a ten-year

schedule

for

the

mortgage,

under

would make one payment annually to the Hovisses.

which

Queally

Queally has

scoured her files and available records and provided the Court
with evidence in various forms for each year to show that she

1

  Since meeting the requirements is apparently not possible,
Queally implores this Court to construe the statute to
accomplish its “clear intent,” to provide a remedy for a
mortgagor “where the mortgagee neglects or refuses to provide a
release and discharge.”
(Pl.’s Mem. in Supp. of Mot. for
Default J. 1.) The Court need not do so as it may discharge the
mortgage in the exercise of its equitable powers. 

4

fulfilled her obligation.

For 1994, there is a letter from

David Hoviss stating that Queally paid $5,891.10 in interest.
For 1995, Queally provided her check register.
and

1998,

Queally

provides

I.R.S.

Form

For 1996, 1997,

1040

Schedules

E,

indicating that she paid $5,105.78, $4,413.49, and $4,044.26 in
interest for those three years respectively.
provides her check register.

For 1999, Queally

For 2000, 2001, 2002, and 2003,

Queally provides I.R.S. Form 1040 Schedules A, indicating that
she

paid

$3,256.15,

$1,784.21,

$1,212.89,

and

$438.62

in

mortgage interest for those four years respectively.
Although not ideal, the evidence, when viewed together and
as

a

whole,

shows

that

Queally

paid

the

mortgage

in

full.

Accordingly, the Court finds her allegations to be sufficiently
supported, and in the exercise of its equitable powers, declares
the mortgage discharged.
155

A.

587,

587-88

See Whipple v. R.I. Hosp. Trust Co.,

(R.I.

1931)(affirming

decree,

cancelling

mortgage deed and note, on bill of equity).
III. Conclusion
For

the

aforementioned

reasons,

Queally’s

motion

for

default judgment is GRANTED and the mortgage on the property
located at the Town of New Shoreham, County of Washington, State
of Rhode Island and Providence Plantations, known as Assessors

5

Plat

17

Lot

6,

off

Connecticut

Avenue,

Block

Island 02907 is hereby DISCHARGED and RELEASED.

IT IS SO ORDERED.

/s/ William E. Smith
William E. Smith
United States District Judge
Date: December 2, 2011

6

Island,

Rhode