Diana v Wamu

8/7/2019 Diana v Wamu

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STATE OF RHODE ISI,AI{D AND PROVIDENCE PI,ANTATIONSPROVIDENCE, Sc, SUPERIOR COURTCOURT REPORTERS _ ROCM 506SUPERIOR COTJRT _ 250 BEMFIT STREETPROVIDENCE, RHODE, ISI,AND 02903

F.EBRUARY 10, 2011.TO: SALLY ST- ONGE

PAYABLE: Wendy J. Ol-ivoCourl ReporLerSuper:ior Court, Rm. 506250 Benefit StreetP::oviderrce, R. I. 02903

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For a transo:ipt- in MICHAEL DTANABi\I{K, PC-09-5766, heard on Nov 23,HonorabJ.e Stephen J. EORTUNATO.1 original pages G $ 3.00 Fp

TCTTAL AYJOUM DIJIi

APPROVED:

V Vf,J\SHINGTON I4IJTUAI,2OIQ t before Thre$ $21.00

$21 .00

DA']]E:

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c E R r.J F J c A_r r o NI, Wendy J. Olivo, hereby certify that the

succeeding pages 1 through 5, jrrc.l.usj-ve/ are a true andaccurate transcript of my stenographic notes.


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NO\EI4BER 23RD, 2010(A. M. SESSTON)

THE gtERK: !-irst matter before the court is on pagefour,-Michael- Diana versus Washingl:orr Mutual Bank,PC*O9-6766.

THE COURT: AJ.l riglrt. Gentlemen, just by way ofbackground, and as r said to other attorney$ on thiscal-endar, rf ve read Lhe papers so r don't need extendedargr-rment, jusL irighli,ght as you see fit. But where isthe subject property new -- I mearr, what is the status ofthe house, who has it and where .i.s it, especially inr:egard to the plaintrffs?

MR. PRECOBIS: .Tolur Precobb, for the defendant. It'scurrently. it j--s -- we're not, property is not beingtransferred.

l,lR. RABCOCK: If I mav, Judge, the properLy wasforeclosed and wj.thout getting into whet^her it wasappropriately -- my clients are in the house and they'repaying use and occupancy on a nrorrthl-y basis unti] thematter is resolved.

THE COUIRT: Qkay.l,(lR. PRECOBB: So if necessary, if the Court were to

have it -- to j-ssue an order regardi-ng foreclosure/ thereis the possiJrility that the foreclosure could be urrdone.So it has not been sold to a third party, if that is


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what, your Honor --TIIE COURT: V,jel1, it is a concel:n Lo me for thi"s

reason, and tFrat- is because of the equita_bl_e principal ofthat which should have been done, is presumed to havebeen done. But I think 1:hat' s l-i_ke most equitabl.eprincipal-s, very contextual i n terms of what_ thecompeting equities aref if they werc l-ong out of thehouse,' Lhe fact that there docs not appear to have beenappropriate corq)l__iance; does not appear to have beenapp:r:opriate conpliar"rce with the Rhode Isl_and statutepertaining to written transfers, not rrecessarityrecording' but wrj.tten transfers and assi-gnments. cn theother hand, 1.hey'::e stil-l in t-he house.

MR. PRECOBB; And the reason for that, your Honor,is because we nrade 'L;he decision at this point in tirnesj.nce th:i-s case was pending, we di.dn't want l-o move thesepeople oul of their home if sornething, if this Court, .i-fa Court were 1-o decide that- there was a problem with theforecl-osure.

MR. ISABCOCK: ' If I may, Mr. Precohb had beerrl:horoughly professional throughout {:his, a lot of timesL,hat did:r't happen, I can't say tha't- in this case.

THE COIJRT: WeII, that's good t-o treo.r. Thatrs whatI'm inclined t-o say/ and that i.s that there does not seemto be an appropriate transfer from the FDIC to Jp.Morgan


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Chase. Now, in no way am f saying that FDIC doesn'ta role or Lhat sta'l-e courl-s come irr and does regardsupremacy clause and so on, but t do think that the

havethecasesof IrDIC'v McFarland, aE 243 F.3d 876/ as well as

US V}fi-rnbe}:L!-'oods, that j-sKIMBELL, at 440US'715, US Supreme Court case decided in 1979, Lhey seem tostand for the propo-rition that state ac't-s that havereasonable and conmonsensical proviei.on.s reqardingwri[ten transfers and assiglrments, are,not the klnd ofstate requi-remenL that nullifies the federal interventionof trDIC in matters such as this one. I don't know,counsel, if you warrt to chal-Ienge that or --

MR. PRECQBE: Yes, your Honor, in the ca$e tlrat Icited in my memorandr:ttt, the Soni decisj.on, -S O N I, Ibelieve, I believe that the Court in Soni drd exp.l.ain anddi,scuss the reason for the justification for there notbeing a requirement that there being a particnlarassigrurrenl, woufd corrqr-ly with state J.aw, and in that case'Lhe Court poi.nted to the fact that under the FDIC, theregu.laLions arrd for pub.Lic policy reasons and to a]lowfor the F'llIC to have a smoo't-h and proper transition ofaEsets that the FDIC shoul"d be alrle t-o do what it wascloing. We're tal-king abou'b, thev're deal.ing with closinginsti.tutions which have thousands and thousands ofaSSeLS, and in order to have a Smooth transition and to..


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avoid there to be issues with these institutions beingclosed, that they wor:Id be aLlowed Lo and that thefederal stal-ute provided. their rrghl to do tlrat. And Ithink that that.'s the arg'ument to be nnde, Irm not -- ofcourse/ I'm not negatirrg Rhode Island law; however, underLhE;se circumstances/ I believe that under presunption andas discussed in Soni --

TIIE COURT: Althouqh, I thj,nk Sol* isdisl:inguj.shable l:ecause in Soni it seems as though thestatute said that there had to be some sort of consentfor a receivershrip, for a receivership and the Federal.Law said no, no consent :lequi-red. for FDIC and so therewas a direct conflict. Whereas -i-n the instant matter,it's lust the simple use of a docr:ment. Now I know thatthe, as you just saj.d, counselor, the FDIC j-s dealingwith hrrndreds orl even thousands of thcse homes, bul, theprobl.em i-s, and I guess it's, at feast it's been reportedi.n Lhe mass media, when all these houses are put intoIittle bundles and little packages, j-ndj-vidual homeowners who do have property rights at sta.ke here get lostj-n the shuff.l"e or some'Lj-r^nes we cou1cj say they geL crushedin tt-re shuffl-e and so iL is for that reason' and I do notthink that Soni is persuasive, but- rather the two casesbhal- I citecl t-h.1t thre clefendanl-'s notion is denied.

MR. PRECOBB: Thank YOU, Judge.I


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THE COTJRT: SulcnLit an order, please.rt'IIE REP'RTER; courd r have your nar*E for the

record?MR. MBCOCK: Attorney Geo::ge Babcock for theplaintiffs.MR. PRECOBB; Ancr .lohn precobb for the defense.

(HEARING ADIOTJRNED)

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Diana v Wamu