Thomas H. McGovern, III v. Bank of America, N.A. et al.

Summary

The Rhode Island Supreme Court affirmed summary judgment upholding a foreclosure sale involving Thomas H. McGovern, III and Bank of America, N.A. The court held that the plaintiff failed to present competent evidence creating a genuine issue concerning loan default or Bank of America's possession of the note, and that statutory notice requirements for the adjourned foreclosure sale were satisfied. The court also held that an unauthenticated letter concerning ownership of the note could not be considered for summary-judgment purposes.

Holdings

1. Once the moving party establishes grounds for summary judgment, the nonmoving party must present competent evidence establishing a genuine issue of material fact. McGovern's conclusory statement that the mortgage was not in arrears was insufficient to rebut defendants' affidavit and payment-history evidence of default.
2. A mortgagee exercising the statutory power of sale may adjourn the foreclosure sale if publication of the notice and notice of the adjournment continue at least once each week and the adjourned sale occurs during the same calendar week as the last publication, at least one day after that publication. The foreclosure sale here satisfied those requirements.
3. An unauthenticated letter is not competent evidence sufficient to create a genuine issue of material fact on summary judgment. Because McGovern failed to authenticate the letter stating that FHLMC owned the note, he failed to counter Bank of America's evidence that it held the note at foreclosure.

Questions Presented

1. Whether summary judgment was proper on the issue of McGovern's alleged default when defendants submitted affidavits and payment records and McGovern offered only a conclusory allegation that the loan was not in arrears.
2. Whether the adjourned foreclosure sale was properly noticed under Rhode Island's statutory power-of-sale provisions.
3. Whether McGovern submitted competent, authenticated evidence creating a genuine issue of material fact about whether Bank of America held the note at the time of foreclosure.

Disposition

affirmed