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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
PROVIDENCE, SC.                                                                                                                                                                   SUPERIOR COURT
                                                                                                 (Filed:  July 18, 2012)
BRYAN J. LIZOTTE and                                                                             :
EVELYN LIZOTTE                                                                                   :
:
v.                                                                                               :                                                                                C.A. No. PC 2011-1109
:
MORTGAGE ELECTRONIC                                                                              :
REGISTRATION SYSTEMS, INC.;                                                                      :
AEGIS LENDING CORPORATION;                                                                       :
BANK OF AMERICA, N.A.; OCWEN                                                                     :
LOAN SERVICING, LLC; and                                                                         :
LASALLE BANK, N.A., AS TRUSTEE                                                                   :
FOR THE REGISTERED HOLDERS                                                                       :
OF BEAR STEARNS ASSET BACKED  :
SECURITIES I TRUST 2007-HE4                                                                      :
ASSET-BACKED CERTIFICATES,                                                                       :
SERIES 2007-HE4                                                                                  :
DECISION
RUBINE, J.  Before the Court is Defendants‟ Mortgage Electronic Registration Systems,
Inc.                                                                                             (“MERS”),  Bank  of  America,  N.A.                                              (“BOA”),  Ocwen  Loan  Servicing,  LLC
(“Ocwen”), and Lasalle Bank, N.A., as Trustee for the Registered Holders of Bear
Stearns Asset Backed Securities I Trust  2007-HE4 Asset-Backed Certificates Series
2007-HE4  (“Lasalle”)                                                                            (collectively,                                                                   “Defendants”)  Motion  for  Summary  Judgment
pursuant to Rule  56 of the Rhode Island Superior Court Rules of Civil Procedure.1
Plaintiffs Bryan J. Lizotte and Evelyn Lizotte‟s (collectively, “Plaintiffs”) filed a verified
complaint                                                                                        (“Complaint”)  for  declaratory  and  injunctive  relief  challenging  Ocwen‟s
foreclosure on the certain real property located at  116-118 Arnold Avenue, Lincoln,
Rhode Island  (“the Property”), and the title obtained thereafter by foreclosure buyer
BOA.
1 Defendant Aegis Lending Corporation is not a party to this Motion.




I
Facts & Travel
The undisputed facts as evidenced by the pleadings, undisputed exhibits and
affidavits, are as follows:   On November 30, 2006, Plaintiffs executed a note (“Note”) in
favor of lender Aegis Lending Corporation (“Aegis”) in the amount of $319,500, having
borrowed that amount to purchase the Property.    The Note designated Aegis as the
“Lender” and provided that “I [borrower] understand that the Lender may transfer this
Note.   The Lender or anyone who takes this Note by transfer and who is entitled to
receive payments under this Note is called the „Note Holder.‟”   (Defs.‟ Ex. C at 1.)
Contemporaneously  with  the  execution  of  the  Note,  Plaintiffs  executed  a
mortgage                                                                                     (“Mortgage”)  on  the  Property.     The  Mortgage  designated  MERS  as
“mortgagee” and “nominee for Lender and Lender‟s successors and assigns.”                    (Compl.
Ex. 2 at 1.)   The Mortgage further designated Aegis as the “Lender.”   Id.   The plain
unambiguous language of the Mortgage deed provided “Borrower does hereby mortgage,
grant and convey to MERS (solely as nominee for Lender and Lender‟s successors and
assigns) and to the successors and assigns of MERS, with Mortgage Covenants upon the
Statutory Condition and with the Statutory Power of Sale.”                                   (Compl. Ex. 2 at 2.)   Shortly
thereafter the Mortgage was recorded in the land evidence records of the Town of
Lincoln.
Following Plaintiffs‟ execution of the Note, Aegis endorsed the Note in blank and
subsequently transferred the Note to BOA, as successor by merger to Lasalle.   (Blanchard
Aff. ¶ 7.)   Ocwen was servicer of the loan on behalf of BOA.                                (Blanchard Aff. ¶ 8.)   On
August 13, 2007, Aegis filed bankruptcy.   (Ver. Compl. ¶ 22.)
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On August 7, 2009, MERS, acting as mortgagee and nominee for BOA, Aegis‟
successor and assignee, assigned its interest in the Mortgage to BOA.   See Compl. Ex. 3.
Thus,  as  of  August                                                                         7,           2009,  BOA  held  both  the  Note,  through  endorsement  and
negotiation of the Note, and was the Mortgagee by way of assignment from MERS.   It is
undisputed, as evidenced by the assignment document, that the assignment was recorded
in the land evidence records of the Town of Lincoln.   In addition, the signature of the
signatory executing the assignment on behalf of MERS, Kevin M. Jackson, is witnessed
and notarized.  See Compl. Ex. 3.
Plaintiffs defaulted on their obligations under the Note and Mortgage for failure to
make payments as and when due.   (Blanchard Aff. ¶ 9.)  As a result, Ocwen sent notice of
default to Plaintiffs and scheduled a foreclosure sale for January 18, 2011.                  (Blanchard
Aff. ¶¶ 10-12.)   The foreclosure sale was conducted as scheduled.   (Blanchard Aff. ¶ 12.)
BOA prevailed as the highest bidder at the foreclosure sale with a credit bid in the
amount of $187,500.   (Blanchard Aff. ¶ 13.)
Plaintiffs filed the Complaint seeking declaratory and injunctive relief, setting
forth conclusory allegations that the foreclosure was a nullity and therefore, record title
remained with Plaintiffs.   Defendants then filed this Motion for Summary Judgment
pursuant to Rule 56.   Plaintiffs have objected to Defendants‟ Motion averring that there
are genuine issues of material fact, thus precluding the entry of judgment as a matter of
law in favor of Defendants.
II
Standard of Review
The Court will only grant a motion for summary judgment if “after reviewing the
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admissible evidence in the light most favorable to the nonmoving party[,]”                       Liberty Mut.
Ins. Co. v. Kaya, 947 A.2d 869, 872 (R.I. 2008) (quoting Roe v. Gelineau, 794 A.2d 476,
481 (R.I. 2002)), “the pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as matter of law.”   Super.
R. Civ. P. 56(c).
The nonmoving party, in this case the Plaintiffs, “has 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.”
Liberty Mut., 947 A.2d at 872 (quotation omitted).                                               To meet this burden, “[a]lthough an
opposing party is not required to disclose in its affidavit all its evidence, he [or she] must
demonstrate that he [or she] has evidence of a substantial nature, as distinguished from
legal conclusions, to dispute the moving party on material issues of fact.” Bourg v.
Bristol Boat Co., 705 A.2d 969, 971 (R.I. 1998) (quotation omitted).
III
Analysis
Since the facts herein are nearly identical to the facts in Kriegel v. Mortgage
Electronic Registration Systems, and the Mortgage executed by Plaintiffs contains the
same  operative  language  as  the  mortgage  considered  in  Kriegel,  this  Court  will
incorporate and adopt the reasoning set forth in Kriegel, No. PC 2010-7099, 2011 WL
4947398 (R.I. Super. Oct. 13, 2011) (Rubine, J.); see also Payette v. Mortgage Electronic
Registration Systems, No. PC 2009-5875, 2011 WL 3794701 (R.I. Super. Aug. 22, 2011)
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(Rubine, J.).   The Court will then address any additional issues that are unique to this
matter that were not addressed in the aforementioned decision.
Plaintiffs, in their memorandum, fail to offer any material distinctions between
the undisputed facts and the facts relied upon in the Court‟s earlier determination of
similar cases.    Rather, Plaintiffs have used their memorandum as an opportunity to
criticize the precedent of the Rhode Island Superior Court, characterizing those previous
decisions as “errors.”                                                                                         “This Court is not persuaded by [Plaintiffs‟] argument.”   Rutter v.
Mortgage Elec. Reg. Sys., Nos. PC 2010-4756, PD 2010-4418, 2012 WL 894012 at * 10
(R.I. Super. March 12, 2012) (Silverstein, J.); see also Commonwealth Prop. Advocates
v. U.S. Bank Nat‟l Ass‟n, No.  11-4168, slip op. at  1-2  (10th Cir. March  6,  2012)
(affirming district court where appellant‟s counsel criticized rather than distinguished
prior MERS cases).   In addition, Plaintiff‟s reliance on case law of other jurisdictions,
which are not binding precedent upon this Court, to further criticize the past decisions of
this  Court  is  also  unconvincing.    Plaintiffs  should  have  used  this  opportunity  to
distinguish this matter from all other “MERS” cases previously decided by this Court,
rather than disapprove of and refuse to accept, the precedential value of such case law.2
The undisputed facts, as evidenced by the provisions of the undisputed documents
and affidavits, are as follows:    Plaintiffs executed the Note in favor of the original lender
Aegis.   To secure the Note, Plaintiffs contemporaneously executed a Mortgage on the
Property.   The Mortgage designated MERS as “mortgagee” and “nominee for [Aegis]
and  [Aegis‟] successors and assigns.”                                                                         (Compl. Ex.  2 at  1.)   Further, as mortgagee,
MERS, as well as the successors and assigns of MERS, were unequivocally granted the
2  The  Rhode  Island  Supreme  Court  has  not  yet  reviewed  the  earlier  precedent  relied  on  herein.
Accordingly, the prevailing legal interpretation of the law of Rhode Island is that established  by the
Superior Court.
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“Statutory Power of Sale” by the Plaintiffs.                                                      (Compl. Ex. 2 at 2.)   Hence, by the clear
unambiguous  language  of  the  Mortgage  deed,  as  acknowledged  and  executed  by
Plaintiffs  as  borrowers  and  mortgagors,  MERS,  as  well  as  BOA  as  successor  and
assignee of MERS, were explicitly granted the statutory power of sale.
Thereafter, on August 7, 2009, MERS assigned its interest in the Mortgage to
BOA.   Plaintiffs defaulted on their repayment obligation, thereby causing Ocwen, as
servicer for BOA the mortgagee and the current note-holder, to exercise the statutory
power of sale and properly commence foreclosure proceedings against Plaintiffs.  Ocwen,
as servicer for BOA, had the right and ability to exercise the statutory power of sale upon
Plaintiffs‟ default.
Attempting to establish a genuine issue of material fact, Plaintiffs challenge the
affidavit of Rashad Blanchard (“Blanchard”), Loan Analyst for Ocwen.   Specifically,
Plaintiffs aver that the affidavit is not based upon the affiant‟s knowledge as an employee
of Ocwen, and therefore the affiant is not competent to make statements with respect to
the documents which pertain to this matter.
Under Rule 56(e), “supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.”   Super.
R. Civ. P. 56(e).   Here, Defendants submitted the affidavit of Blanchard, a Loan Analyst
for Ocwen, the mortgage servicer.                                                                 (Blanchard Aff. ¶¶ 1, 2.)   Blanchard attested in the
affidavit that he was “familiar with the facts and circumstances” of this matter “[b]ased
upon                                                                                              [his]  personal  knowledge  and  review  of  the  referenced  documents  and
proceedings.”   (Blanchard Aff. ¶ 1.)  Blanchard further set forth the details with reference
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to his personal knowledge of the matter.   Thus, Blanchard has properly laid a foundation
for his personal knowledge of the matter as set forth in his affidavit.   See Turano v.
Artigas, 518 A.2d 13 (R.I. 1986) (finding the affidavit to be sufficiently adequate for
defendant to have met her burden of proof).   Accordingly, Blanchard is competent to
testify as to the statements made in his affidavit.
The sole affidavit submitted by Plaintiff in opposition to Defendants‟ Motion for
Summary Judgment is that of Plaintiff Brian J. Lizotte.  Although Defendants have failed
to challenge the affidavit of Plaintiff Bryan J. Lizotte‟s, this Court finds that affidavit to
be inadequate under Rule 56.   Lizotte makes bald conclusory statements in his affidavit
which are not supported by the plain unambiguous language contained in the documents
of this matter, specifically the Note and Mortgage.   Lizotte further attests that Kevin M.
Jackson (“Jackson”) is “not an employee of any party to this loan, to assign the mortgage
to any other party.”                                                                                            (Lizotte Aff. ¶ 24.)   Lizotte claims to have personal knowledge
based on an internet search that Jackson is an employee of Ocwen and not an officer of
MERS.   (Lizotte Aff. ¶¶ 25, 26.)3   In addition, Lizotte attests that the allonge of the Note
is fraudulent and that Robin Dove is not an employee of Aegis, without establishing the
basis for his personal knowledge of that alleged fact.   (Lizzotte Aff. ¶¶ 62-65.)
As set forth supra, Rule 56(e) requires that “supporting and opposing affidavits . .
. be made on personal knowledge, [and] set forth such facts as would be admissible in
3 It should be noted that a person could be authorized to execute an assignment or other legal documents,
for instance via a power of attorney, even if that person is neither an officer nor employee of the assignor.
The person purporting to assign the mortgage has affirmed to a notary that he or she was authorized to do
so. Under Rhode Island law, the authority of the person executing a recorded document is not required to
establish by extrinsic evidence the basis for such authority. The authority is presumptively valid by reason
of the attestation on the document.   See GSM Industrial, Inc. v. Grinnell Fire Protection Systems Company,
Inc., --- A.3d ---, 2012 WL 2619129 at * 4 (R.I. Sup. July 5, 2012) (an acknowledgment is the method of
authenticating an instrument by showing it was the act of the person executing it); see also Rhode Island
Rules of Evidence 902.
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evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein.”    Super. R. Civ. P.  56(e).    Accordingly, Lizotte‟s conclusory
opinion and interpretation in light of the clear unambiguous language of the Mortgage
and Note are insufficient to defeat Defendants‟ Motion for Summary Judgment.   See
Gordon v. Ide, Inc.,  107 R.I.  9,  264 A.2d  332  (R.I.  1970)  (finding affidavit to be
insufficient to entitle defendant to summary judgment as assertions made in affidavit
lacked testimonial competence and was conclusionary impression on critical issue).   In
addition, Lizotte lacks personal knowledge with respect to the endorsement of the Note in
blank and its subsequent transfer to BOA, thus rendering Lizotte‟s affidavit, at least
certain  sections  of  it,  invalid.    If  a  party‟s                                          “affidavit  fails  to  comply  with  the[]
requirements [of Rule 56(e)], it is useless in establishing . . . a genuine issue of material
fact.”   Nichola v. Fiat Motor Co., Inc., 463 A.2d 511, 513 (R.I. 1983).   Moreover, belief,
no matter how sincere, is not equivalent to knowledge, and affidavits are insufficient to
establish a genuine issue of material fact where they are based on information and belief
of that affiant.                                                                                27A Fed. Proc., L. Ed. § 62:654.   Likewise, an affidavit is insufficient
where it is based on mere suspicion.   Id.   Allegations not made from an affiant‟s own
knowledge are subject to being stricken.                                                        2A C.J.S. Affidavits § 45.   Lizotte has failed to
prove to this Court that he has personal knowledge with respect to the endorsement and
subsequent transfer of the Note.   Accordingly, this Court will disregard the incompetent
portions of Lizotte‟s affidavit.   See DiCristoforo v. Beaudry, 110 R.I. 324, 293 A.2d 301
(1972) (failure of portion of an affidavit under Rule 56 to conform to the prescribed
limitations does not require the court to expunge the entire affidavit, but courts should
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disregard the incompetent portions and consider only that which has been properly
included).
Assuming  arguendo  that  this  Court  considered  the  incompetent  portions  of
Lizotte‟s affidavit, Plaintiffs still fail to raise a genuine issue of material fact sufficient to
defeat Defendants‟ Motion for Summary Judgment.    The nonmoving party  “has 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.”   Liberty Mut., 947 A.2d at 872 (quotation omitted).   Plaintiffs‟
averments concerning the endorsement of the Note in blank, the fraudulent execution of
the  allonge  of  the  Note,  and  the  lack  of  authorization  by Jackson  to  execute  the
assignment  of  the  Mortgage  interest  on  behalf  of  MERS,  are  merely  unsupported
allegations and mere conclusions.   Plaintiffs have presented no evidence to prove these
allegations.   Accordingly, Plaintiffs have not met their burden to show that there exists a
genuine issue of material fact.
Plaintiffs are not entitled to clear title to the Property thereby leaving them as the
owners of record, because the foreclosure sale was lawfully noticed and the Property
properly  conveyed  to  BOA  as  a  result  of  the  sale.    Further,  Plaintiffs  have  not
demonstrated by affidavit, or otherwise, that there exists a genuine issue of material fact
which would vary this result.   The issues presented in this matter have previously been
decided by this Court.   See Kriegel v. Mortgage Elec. Reg. Sys., No. PC 2010-7099,
2011 WL 4947398 (R.I. Super. Oct. 13, 2011) (Rubine, J.); see also Payette, 2011 WL
3794701; Porter v. First NLC Financial Services, No. PC 2010-2526, 2011 WL 1251246
(R.I. Super. March 31, 2011) (Rubine, J.); Bucci v. Lehman Brothers Bank, FSB, No. PC
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2009-3888, 2009 WL 3328373 (R.I. Super. Aug. 25, 2011) (Silverstein, J.); Rutter, 2012
WL 894012.   Accordingly, Defendants are entitled to judgment as a matter of law based
on the authority of the above cited cases.  In the absence of controlling authority from the
Rhode Island Supreme Court, the reasoning and result of the Superior Court cases on this
subject matter represents the prevailing view  of the law in  Rhode  Island on these
subjects.  The decisions of the Superior Court unanimously support this result.  The Court
hereby incorporates by reference the reasoning and authorities relied upon in those
previous decisions.
IV
Conclusion
Defendants‟  Motion,  and  the  documents  and  affidavit  in  support  thereof,
demonstrate that there is no genuine issue of material fact.  Accordingly, this Court grants
Defendants‟ Motion for Summary Judgment.   There being no just reason for delay, Final
Judgment shall enter in favor of Defendants under Rule 54(b).
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