U.S. Bank National Association, as Trustee for the Registered Holders of Aegis Asset Backed Securities Trust, Mortgage Pass-Through Certificates, Series 2005-5 v. Lantini et al

Filing 33

MEMORANDUM AND ORDER granting in part and denying in part 12 Motion for Summary Judgment. So Ordered by Chief Judge William E. Smith on 3/6/2019. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
)
)
)
)
)
Plaintiff,
)
)
v.
)
)
GILBERT LANTINI II,
)
)
Defendant.
)
___________________________________)
U.S. BANK NATIONAL ASSOCIATION,
as Trustee for the Registered
Holders of Aegis Asset Backed
Securities Trust, Mortgage
Pass-Through Certificates,
Series 2005-5,

C.A. 17-141 WES

MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is Plaintiff’s Motion for Summary Judgment
(ECF No. 12).

This is a judicial foreclosure action concerning

the property located at 2075 Plainfield Pike, Johnston, Rhode
Island, acquired by Defendant Gilbert Lantini II in 2004.

In the

face of Defendant’s opposition, the scope of Plaintiff’s motion
has morphed in substance if not form. 1 Plaintiff now seeks summary
judgment only on Count I, which seeks a declaratory judgment that

1

Plaintiff’s motion initially sought summary judgment on all
three counts of the Complaint.
In response to the Defendant’s
opposition memorandum, Plaintiff’s sought—and the Court allowed—
leave to file an Amended Complaint (ECF No. 27).
In its reply
memorandum, Plaintiff withdrew its arguments for summary judgment
on all counts except for Count I. See Pl.’s Reply to Def.’s Opp’n
to Pl.’s Mot. for Summ. J. 2, ECF No. 32.
1

the Rhode Island Foreclosure Mediation Statute, R.I. Gen. Laws §
34-27-3.2, does not apply to this action. 2

For the reasons stated

herein, Plaintiff’s Motion for Summary Judgment is GRANTED IN PART.
I.

Discussion
Summary judgment may be granted if the movant demonstrates

there is an “absence of any genuine issue of material fact.” Borges
ex

rel.

S.M.B.W.

v.

Seranno-Isern,

605

F.3d

1,

5

(1st

Cir.

2010)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
If the movant satisfies this burden, the nonmovant must produce
“significant[ly] probative” evidence demonstrating that ”a trier
of fact could reasonably resolve that issue in [its] favor.”

Id.

If the nonmovant fails to do so, summary judgment is appropriate.
Id.
Pursuant to 28 U.S.C. § 2201, Plaintiff seeks a declaration
that

R.I.

Gen.

Laws

§

34-27-3.2

is

inapplicable

here.

The

statute’s express purpose is to “provid[e] a uniform standard for
an early HUD-approved, independent counseling process in owneroccupied principal residence mortgage foreclosure cases, [so] the
chances of achieving a positive outcome for homeowners and lenders
will be enhanced. ” R.I. Gen. Laws § 32-27-3.2(b) (emphasis added).
Thus, the statute’s mandatory mediation provisions are triggered

2

The Amended Complaint’s allegations are identical to those
in the original Complaint.
The Court therefore construes
Plaintiff’s motion as a request for summary judgment on Count I of
the amended complaint.
2

only

if

the

property

being

foreclosed

residence” or “primary dwelling.”

upon

is

a

“principal

Id., id. § 32-27-3.2(k).

The Plaintiff argues that the Defendant has admitted that the
Plainfield Pike property is not his principal residence. 3

See

Compl. ¶¶ 23–27, ECF No. 1; Ans. ¶¶ 23–27, ECF No. 8.

In

opposition, the Defendant produces no evidence from which the Court
might reasonably conclude that this fact is genuinely disputed.
The

Defendant

instead

noted

a

technical

error,

arguing

that

Plaintiff’s pleadings incorrectly requested declaratory relief
under an inapplicable Rhode Island statute rather than 28 U.S.C.
§ 2201.

See Def’s Opp’n to Mot. for Summ. J. 2, ECF No. 22-1. The

Defendant acknowledged, however, that relief under 28 U.S.C. §
2201 would be proper, see id. at 1–2, and Plaintiff corrected this
flaw in its Amended Complaint.

See Am. Compl. ¶ 25, ECF No. 30.

The Defendant has made no attempt to muster any facts to rebut the
Plaintiff’s evidence.3

The Court therefore finds that R.I. Gen.

Laws § 34-27-3.2, including the requirements of subsection (d) of

3

Defendant has not answered the Amended Complaint.
His
Answer to the original pleadings is nevertheless admissible
evidence. See Huey v. Honeywell, Inc., 82 F.3d 327, 333 (9th Cir.
1996)(“Despite the fact that [Defendant] later amended its answers
to deny this allegation, [Defendant]’s admissions are still
admissible evidence, though not conclusive, like any other
extrajudicial admission made by a party or its agent.”). Defendant
did not object to Plaintiff’s Motion to Amend, and has had ample
opportunity to seek leave to expand upon his objections to summary
judgment on Count I.
See Text Order, Feb. 1, 2019 (noting
Plaintiff’s Motion to Amend was unopposed). He has not done so.
3

that statute, are inapplicable here and that the Plaintiff is
entitled to summary judgment on Count I of the Amended Complaint.
See Borges, 605 F.3d at 5–6.
II.

Conclusion
For the foregoing reasons, Plaintiff’s Motion for Summary

Judgment (ECF No. 12) is GRANTED IN PART.

With respect to Count

I of the Plaintiff’s Amended Complaint, the Court finds that, to
proceed with a foreclosure sale in accordance with the requirements
of R.I. Gen. Laws § 34-27-4(b), the Plaintiff is not required to
send a notice of mediation conference to the Defendant because the
Plainfield Pike property was not his principal residence during
the relevant default period.

The Plaintiff’s Motion for Summary

Judgment is otherwise DENIED.
IT IS SO ORDERED.

_________________
William E. Smith
Chief Judge
Date: March 6, 2019

4