R.I. Hous. & Mortg. Fin. Corp. v. Gordon

275 A.3d 559

RHODE ISLAND HOUSING AND MORTGAGE FINANCE CORPORATION

v.Edward GORDON.

No. 2020-166-Appeal.

KM 18-756

Supreme Court of Rhode Island.

June 6, 2022

Nicole J. Benjamin, Esq., for Petitioner.

Ann Gordon, Pro Se, for Respondent.

Present: Suttell, C.J., Goldberg, Lynch Prata, and Long, JJ.

Chief Justice Suttell, for the Court.

The pro se respondent, Ann Gordon, appeals from a Superior Court decree foreclosing her rights of redemption in property purchased by the petitioner, Rhode Island Housing and Mortgage Finance Corporation (RIHMFC), through exercise of its right of first refusal. This case came before the Supreme Court pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the parties’ written and oral submissions and reviewing the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the decree of the Superior Court.

IFacts and Travel

The pertinent facts have been gleaned from the Superior Court record, as well as the statements, supplemental statements, and attached exhibits filed on behalf of the parties pursuant to Article I, Rule 12A of the Supreme Court Rules of Appellate Procedure.

In her submissions before this Court, Gordon asserts that the property in question, located at 54 Bayberry Lane in East Greenwich, Rhode Island (the property), was acquired by her father, Edward Gordon, who designed and built a house on the property in 1957. Gordon states that she has lived in the home all her life; she lived there as a child and, after her father's death in 1998 and her mother's death in 2002, she and her sister continued living in the home.

In 2013, a tax lien was placed on the house as a result of nonpayment of taxes owed to the Town of East Greenwich. Because the property was a qualifying owner-occupied residential property, RIHMFC then exercised its preemptive right to purchase the property in May 2013. See G.L. 1956 § 44-9-8.3(a). At the time of the sale, the statutory five-year period allowing Gordon to exercise her rights of redemption began. See § 44-9-25(c).

On July 10, 2018, a little more than five years after it purchased the property, RIHMFC filed a petition in Superior Court to foreclose any existing rights of redemption in the property. In October 2018, the title examiner's report, which showed only Edward Gordon and RIHMFC as having interests in the property, was filed; early in 2019, the report was approved by the Superior Court.

In June 2019, a citation issued, which was then mailed by certified mail to the property in July 2019. The mailed citation was addressed: "TO ALL WHOM IT MAY CONCERN, and Edward Gordon and if any of the above are deceased persons, then to their spouses, heirs, and/or devisees." The citation instructed the recipient, if they "desire[d] to make any objection or defense to the petition[,]" to "file a written appearance and an answer, under oath, setting forth clearly and specifically your objections or defense to each part of the petition[.]" The cover letter enclosed with the citation indicated that the recipient had until July 10, 2019, or until twenty days from receipt of the letter, whichever was later, to answer. Gordon received the citation on July 22, 2019.

In her submissions before this Court, Gordon contends that after receiving the citation she attempted to find assistance in responding to the citation. She alleges that she first called RIHMFC and spoke to an employee who told her to call back in several weeks; when Gordon told the employee that she had only a small amount of time to respond to the citation, the employee told her "[d]on't worry about that[.]" Gordon also claims that she attempted to get help from Rhode Island Legal Services, but she was told that the only lawyer that handled foreclosure of redemption cases was away. Finally, Gordon alleges that she attempted to locate a company for a reverse mortgage. She ultimately was able to do so; however, her sister, who was over age sixty-two, passed away in September 2019, before the reverse-mortgage process was complete. Gordon, at age sixty, was not eligible for a reverse mortgage.

On September 20, 2019, RIHMFC filed an affidavit in support of an entry of default, alleging that more than twenty days had elapsed since service of process, that no respondent had defended against the citation, and thus that default was appropriate.

Accordingly, default entered on November 7, 2019.

On November 14, 2019, Gordon moved for enlargement of time. On November 15, 2019, RIHMFC responded to Gordon's motion, consenting to the enlargement of time and requesting another citation to issue, in order to serve Gordon again and give her a further twenty days from receipt of the second citation to properly respond. However, Gordon alleges that no second citation was issued, and, although in its submissions before this Court petitioner has referenced a second citation, the Superior Court record does not indicate that a second citation was ever issued.

Subsequently, on December 9, 2019, a hearing on the motion to enlarge time was held. At this hearing, RIHMFC agreed to extend the time available to Gordon for redemption of the property to February 9, 2020. Gordon contested the redemption amount, stating that what she really owed was "much less" than what RIHMFC claimed was due, and RIHMFC stated that it would file a motion that would "give Ms. Gordon the opportunity to see the numbers we're saying are owed."

RIHMFC then filed a motion to establish the amount and terms of redemption on December 12, 2019. In this motion, RIHMFC correctly indicated that under § 44-9-29, the court " ‘may in its discretion make a finding allowing the party to redeem, within a time fixed by the court[.]’ " The motion also stated that the amount necessary to redeem the property was $51,177.94. Additionally, RIHMFC requested that the court enter an order stating that Gordon had to pay that amount, no later than February 9, 2020, to redeem the property, or otherwise RIHMFC would be entitled to apply for a decree to foreclose all rights of redemption. Although she had contested the amount owed at the hearing on the motion to enlarge time, Gordon did not file an objection to RIHMFC's motion to establish the amount and terms of redemption.

On December 23, 2019, an order entered establishing the redemption amount as $51,177.94 and the due date as February 9, 2020, and stating that if no redemption were made, RIHMFC would be entitled to apply for a final decree foreclosing all rights of redemption. Again, Gordon did not file any motions or otherwise contest this order establishing the redemption amount and terms.

On February 3, 2020, there was a second hearing, which centered on a consent order between Gordon and RIHMFC. The consent order, signed by both the attorney for RIHMFC and Gordon, stated that Gordon was the only party with an interest in the property. It also set the redemption amount at $51,177.94 and changed the due date to March 5, 2020. The consent order also provided that, if the redemption payment was not made and if RIHMFC submitted an affidavit of noncompliance, a final decree would enter.

At the hearing, the hearing justice asked Gordon if she had read the consent order, if she understood that she had one month to pay the redemption amount, and if she understood that if she failed to pay the redemption amount at that time she would lose ownership of the property. Gordon answered all questions affirmatively. The hearing justice then approved the consent order, which entered the same day.

In her statements to this Court, Gordon alleges that she spoke with counsel for RIHMFC in the courthouse on February 3, 2020, before the hearing. Gordon claims that she had understood that the hearing was meant to establish the amount owed. Gordon alleges that before the hearing took place, RIHMFC's counsel met her outside the courtroom and told her she "had to sign the paper"—the consent order. Gordon contends that she told RIHMFC that the amount was incorrect, however, RIHMFC's counsel told her that if she "brought anything before the judge, [RIHMFC] would take back the extension to March 5, and demand payment" immediately. Gordon claims that she also told RIHMFC's counsel that she did not have the money yet, but RIHMFC responded that that meant she had to sign the document. Thus, Gordon contends that she signed the consent order "under duress" because she was "threatened and intimidated into signing the consent order and not bring[ing] anything before the judge" because otherwise she would "[lose] the extension [until] March 5[.]"

According to Gordon, on March 4, 2020, the day before the redemption amount was due, she again reached out to RIHMFC. Gordon claims that she spoke to a "Mr. Russo" who indicated that RIHMFC would give Gordon more time to redeem. However, Gordon alleges that RIHMFC never contacted her to do so. Gordon states that it is her belief that RIHMFC gives loans and payment plans, and that she asked Russo for either, but that she was told that those options were not available to her.

It is undisputed that Gordon did not make the redemption payment on or before March 5, 2020. On March 9, 2020, RIHMFC filed an affidavit of noncompliance indicating that Gordon had not redeemed the property as allowed for in the consent order, and therefore that pursuant to the consent order, RIHMFC was entitled to a final decree foreclosing Gordon's right of redemption upon the filing of an affidavit of noncompliance. A final decree foreclosing the rights of redemption entered on March 18, 2020. Gordon timely filed a notice of appeal on May 29, 2020.¹

IIDiscussion

AConsent Order

On appeal, Gordon takes issue with various aspects of the procedure in the Superior Court. Gordon contends that there was error in the proceeding because her father's name...