Sanford M. Kirshenbaum v. Fidelity Federal Bank, F.S.B.

Supreme Court
No. 2007-86-Appeal.
(PC 01-6340)
Sanford M. Kirshenbaum 	:
v.
Fidelity Federal Bank, F.S.B. 	:
NOTICE: 	This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.

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Supreme Court
No. 2007-86-Appeal.
(PC 01-6340)
Sanford M. Kirshenbaum 	:
v.
Fidelity Federal Bank, F.S.B. 	:
Present: Williams, C.J., Goldberg, Flaherty, Suttell, and Robinson, JJ.
O P I N I O N
Justice Robinson for the Court. The plaintiff, Sanford M. Kirshenbaum, appeals to this
Court from the entry of judgment in favor of the defendant, Fidelity Federal Bank, F.S.B.
(Fidelity Bank).
This case came before the Supreme Court for oral argument on December 4, 2007,
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 record, the briefs submitted by
the parties, and the oral arguments of counsel, we are of the opinion that cause has not been
shown and that the case should be decided at this time. 	For the reasons set forth below, we
affirm the judgment of the Superior Court.
Facts and Travel
The material facts in this case are undisputed. In 1998, Mr. Kirshenbaum was acting as a
real estate broker on behalf of Lori and Johnatan Araujo, who were seeking to purchase a
personal residence. Mr. Kirshenbaum was affiliated with Marlene Hope, Inc., a corporate entity

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located in Cranston.1 With the assistance of plaintiff, the Araujos found a house located at 140
Vincent Avenue in North Providence that they wished to purchase. However, due to their poor
credit history, the Araujos were unable to secure financing to purchase the property. 	To make
possible the purchase of the property by the Araujos, plaintiff agreed to obtain a mortgage for the
property in his own name. 	It appears that, in exchange, the Araujos agreed to make monthly
payments to Mr. Kirshenbaum in the amount of the monthly mortgage payment.
To that end, on August 11, 1998, Mr. Kirshenbaum procured a mortgage in the amount of
$54,000 from Pan American Bank and then proceeded to purchase the property in his own name
for $67,500. 	On that same day, Ocwen Federal Bank, F.S.B., purchased the mortgage and
promissory note; that purchase became effective on October 1, 1998. Subsequently, on October
22, 1998, defendant Fidelity Bank acquired the mortgage.
At some point between the date of the original mortgage (August 11, 1998) and its
purchase by Fidelity Bank (October 22, 1998), Mr. Kirshenbaum conveyed title to the property
to Marlene Hope, Inc., subject to the mortgage held by Ocwen Federal Bank, F.S.B. Thereafter,
on April 9, 1999, Marlene Hope, Inc. conveyed title to the property to the Araujos, subject to the
mortgage held by Fidelity Bank. 	In exchange for that transfer, the Araujos granted Marlene
Hope, Inc. a second mortgage in the amount of $25,245.09.
On January 10, 2000, after Fidelity Bank discovered that title to the property had been
transferred to the Araujos, it informed plaintiff that it was enforcing the “due on sale” provision
in the mortgage. 	That provision provided that Fidelity Bank could seek immediate full
repayment of the promissory note if plaintiff’s ownership interest in the property should be
transferred without its consent. The defendant notified Mr. Kirshenbaum that, if he did not fully
1 It appears from the record that Marlene H. Kirshenbaum, plaintiff’s daughter, is the
president and sole shareholder of Marlene Hope, Inc., a Rhode Island corporation.

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repay the promissory note within thirty days, it would foreclose on the property. In an effort to
prevent foreclosure, plaintiff requested additional time to pay off the loan; Fidelity Bank agreed
to refrain from further action until June 30, 2000, during which time Mr. Kirshenbaum continued
to make his regular monthly payments on the loan. 	On June 21, 2000, plaintiff sent a check to
Fidelity Bank in the amount of $45,000.
Thereafter, on August 23, 2000, plaintiff sent a letter to Fidelity Bank; he enclosed in that
letter a check in the amount of $4,460.93, which represented the remaining balance of the
mortgage. In that same letter, plaintiff stated that he “wanted a discharge of the Mortgage and a
notation on the Promissory Note that it was paid in full.” 	He further indicated that it was his
understanding that the Araujos were planning to declare bankruptcy and that, if he had
“documents showing that the Note and Mortgage are paid, then the Araujos [would] not be liable
for that amount.”
In view of those considerations, in his August 23 letter Mr. Kirshenbaum insisted: (1) that
the note be assigned to him personally and (2) that, pursuant to G.L. 1956 § 34-26-4, he “receive
an assignment of the Mortgage, as opposed to a Discharge of the Mortgage.”2 Nonetheless,
despite plaintiff’s above-quoted request, on October 10, 2000, Fidelity Bank discharged the
mortgage instead of issuing an assignment of the mortgage to Mr. Kirshenbaum.
Prior to that date, on September 14, 2000, the Araujos did in fact file for bankruptcy with
the United States Bankruptcy Court of the District of Rhode Island. 	During the bankruptcy
proceedings, 	the 	Araujos 	claimed 	that, 	since 	the 	mortgage 	had 	been 	discharged, 	any
encumbrances on their property had been removed. 	Consequently, it was their argument that
they were no longer obligated to make further payments to Mr. Kirshenbaum. Subsequently, on
2 It appears that Mr. Kirshenbaum’s purpose in making the demand for an assignment was
to ensure that the Araujos would still be indebted to him.

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October 9, 2001, after finding that “the Araujos would be unjustly enriched by * * * the amount
paid by [Mr.] Kirshenbaum to Fidelity [Bank] to satisfy the first mortgage on the Araujos’ home,
if their plan were confirmed as proposed,” the Bankruptcy Court denied confirmation of the
Araujos’ bankruptcy plan.
Mr. Kirshenbaum then filed the instant action on December 4, 2001. He contended that,
had Fidelity Bank granted him an assignment of the mortgage, he would have been able to
pursue his claim against the Araujos for the amount he paid in order to discharge the mortgage.
In his complaint, plaintiff claimed that he was entitled to damages equal to that amount
($53,460.93), plus interest, costs, and attorneys’ fees. He further asserted that he was entitled to
punitive damages because of defendant’s failure to assign the note and mortgage to him in
purported violation of §§ 34-26-4 and 34-26-5. 3 Subsequently, Fidelity Bank filed a motion for
summary judgment, and a hearing was held with regard to same.
On September 13, 2005, the hearing justice issued a bench decision, in which she found
that the plain language of § 34-26-4 did not entitle plaintiff to an assignment of the mortgage
because the statute permits assignment of a mortgage only to a third party and not to the
mortgagor. The hearing justice further noted that, pursuant to § 34-26-2, defendant was required
to issue a discharge of the mortgage once it had been paid in full. 	The trial justice further
determined that “even if the defendant had transferred the mortgage as the plaintiff requested, the
plaintiff’s status as an unsecured creditor of the Araujos would have been unchanged.” Based on
the 	foregoing 	conclusions, 	the 	hearing 	justice 	granted 	defendant’s 	motion 	for 	summary
3 It appears from the record that Mr. Kirshenbaum did not file suit against the Araujos;
rather, on January 10, 2002, he entered into a settlement agreement with them. 	In that
agreement, plaintiff agreed to relinquish all claims against the Araujos in return for the
agreement by the Arraujos to convey the property back to Marlene Hope, Inc. and to release
plaintiff from any tort claims associated with possible lead contamination of the property.

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judgment.4 Final judgment was entered on September 14, 2005, and Mr. Kirshenbaum filed a
timely appeal on September 30, 2005.
On appeal, plaintiff claims that the hearing justice’s agreement with defense counsel’s
statement that the facts are “ridiculously convoluted” demonstrates that summary judgment was
not appropriate in the instant case. The plaintiff also contends that the discharge of the mortgage
contained spelling and factual errors and that defendant could have assigned the mortgage to his
wife instead of discharging the mortgage.
Standard of Review
This Court reviews a hearing justice’s decision as to summary judgment on a de novo
basis. 	Lacey v. Reitsma, 899 A.2d 455, 457 (R.I. 2006); DelSanto v. Hyundai Motor Finance
Co., 882 A.2d 561, 564 (R.I. 2005). In carrying out that review, we employ the same standards
that the hearing justice employed. 	Lacey, 899 A.2d at 457. 	As such, we will affirm a grant of
summary judgment if, after reviewing the evidence in the light most favorable to the nonmoving
party, we conclude that there are no genuine issues of material fact to be decided and that the
moving party is entitled to judgment as a matter of law. 	Id.; see also Ruggiero v. City of
Providence, 893 A.2d 235, 237 (R.I. 2006).
4 The hearing justice made several other rulings in support of her grant of summary
judgment. 	Because we conclude that, based on the above-enumerated findings of the hearing
justice, summary judgment was completely appropriate in the instant case, we need not address
the other grounds upon which she predicated her decision.

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Analysis5
Mr. Kirshenbaum’s first contention is that Fidelity Bank violated §§ 34-26-4 and 34-26-5
when it discharged his mortgage rather than granting him an assignment as he had requested.
We disagree.
First and foremost, pursuant to § 34-26-2(a), it is legally mandated that “[e]very
mortgagee of real estate * * * having received full satisfaction for the money due on the
mortgage, shall, within thirty (30) days after final payment, discharge the mortgage * * *.”
(Emphasis added.) 	As such, we are in full agreement with the hearing justice’s ruling that
“defendant was required by statute to discharge the mortgage once plaintiff paid the debt in full.”
Secondly, the clear terms of § 34-26-4 provide that an assignment of a mortgage may
only be granted to a third party and not to the mortgagor. Section 34-26-4 provides in pertinent
part as follows:
“Where a mortgagor is entitled to redeem, he or she shall by virtue
of this section have power to require the mortgagee, instead of
discharging or reconveying, and on the terms on which he or she
would be bound to discharge or reconvey, to assign the mortgage
debt and convey the mortgaged property to such third person as the
mortgagor directs * * * .” (Emphasis added.)
5 We note that, in opposing defendant’s motion for summary judgment, plaintiff raised and
addressed the legal issues dealt with in the “Analysis” section of this opinion; however, in his
submission to this Court, plaintiff chose to set forth his contentions and reasoning in only the
most cursory manner. 	See Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129,
1131 n.1 (R.I. 2002) (“Simply stating an issue for appellate review, without a meaningful
discussion thereof or legal briefing of the issues, does not assist the Court in focusing on the
legal questions raised * * * .”); see also Ryan v. Roman Catholic Bishop of Providence, No.
2004-49-A., slip op. at 18 n.23 (R.I., filed Feb. 8, 2008); State v. Day, 925 A.2d 962, 974 n.19
(R.I. 2007); State v. Lorenzo, 891 A.2d 864, 872-73 (R.I. 2006); O’Rourke v. Industrial National
Bank of R.I., 478 A.2d 195, 198 n.4 (R.I. 1984). Nevertheless, in spite of plaintiff’s regrettable
failure to adhere to appellate requirements, we have chosen in this instance to address his
arguments.

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In view of the limited nature of this statutory provision, Fidelity Bank could not properly have
assigned the mortgage to Mr. Kirshenbaum. As the hearing justice stated: “Indeed, permitting a
transfer of the mortgage to the plaintiff would lead to an illogical result, one that would see the
plaintiff as both mortgagor and mortgagee on the same note * * *.” 6 Furthermore, in his letter to
Fidelity Bank, Mr. Kirshenbaum confusingly requested both a discharge and an assignment, and
he provided no information concerning the person(s), other than himself, to whom the
assignment should be directed. 	Mr. Kirshenbaum’s argument on appeal that the assignment
could have been made to his wife is of no present consequence; the plain and inexorable fact is
that he made no such request.
Finally, plaintiff’s contention that summary judgment was inappropriate because the facts
are “ridiculously convoluted”7 is utterly devoid of merit. The very nature of our judicial system
requires courts to confront cases that touch on virtually every aspect of our society; and, in so
doing, judges often must deal with extremely difficult and intricate factual questions. 	There is
no necessary correlation between the “convoluted” nature vel non of a case’s factual background
and the appropriateness of disposition pursuant to Rule 56 of the Superior Court Rules of Civil
Procedure. It is the duty of the courts, when presented with a motion for summary judgment, to
determine whether or not material issues of fact remain to be resolved, and, if not, whether
judgment should be granted as a matter of law. 	See McPhillips v. Zayre Corp., 582 A.2d 747,
6 We also observe that, even if defendant was required to assign the mortgage to plaintiff,
it would not have provided any security for plaintiff in seeking recovery from the Araujos. The
clear terms of the mortgage held by defendant state that the mortgage secured plaintiff’s
obligation to repay his loan to defendant; it did not provide security for the Araujos’ obligations
to plaintiff.
7 We note that the quoted descriptive language (with which the trial justice agreed) was
made by defense counsel; it referred to one particular issue—viz., the issue of whether or not the
Araujos had signed a promissory note with plaintiff. As no point was that descriptive language
used with respect to the case as a whole.

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749 (R.I. 1990). As a perusal of decided cases reveals, that duty can be (and often is) carried out
even when the factual background is “convoluted.” See, e.g., Chavers v. Fleet Bank (RI), N.A.,
844 A.2d 666, 668-69 (R.I. 2004) (upholding the grant of summary judgment even though there
were 	complex 	factual 	issues 	concerning 	a 	bank’s 	practices 	with 	respect 	to 	credit 	card
solicitations); Holliston Mills, Inc. v. Citizens Trust Co., 604 A.2d 331, 332-34 (R.I. 1992)
(upholding the grant of summary judgment in a case involving the terms of a complicated and
intricate loan agreement).
Although the facts in this case may be somewhat “convoluted,” there has been no
showing that any material facts are in dispute. In its pre-briefing statement filed with this Court,8
the defendant stated that it does not take “issue with the facts as recited by [the hearing justice] in
her September 13, 2005 decision.” The plaintiff’s recitation of the facts is also virtually identical
to the description of the facts made by the hearing justice and by the defendant. 	Summary
judgment was completely appropriate in this case; there were not any material facts at issue and,
as discussed above, the defendant was entitled to judgment as a matter of law.
Conclusion
For the reasons set forth herein, we deny the appeal and affirm the judgment of the
Superior Court. The papers in the case may be remanded to the Superior Court.
8 The “Statement of the Case” that is called for by Article I, Rule 12A of the Supreme
Court Rules of Appellate Procedure is commonly referred to as a “pre-briefing statement.” Rule
12A(1) provides in pertinent part as follows: “[T]he appellant, petitioner, or other moving party
shall file a statement of the case and a summary of the issues proposed to be argued * * *.”

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COVER SHEET
TITLE OF CASE: 	Sanford M. Kirshenbaum v. Fidelity Federal Bank,
F.S.B.
DOCKET SHEET NO.: 	2007-86-A
COURT: 	Supreme
DATE OPINION FILED: 	February 15, 2008
Appeal from
SOURCE OF APPEAL: 	Superior 	County: Providence
JUDGE FROM OTHER COURT: 	Judge Judith C. Savage
JUSTICES: 	Williams, CJ., Goldberg, Flaherty, Suttell, and Robinson, JJ.
WRITTEN BY: 	Justice William P. Robinson, III, for the Court
ATTORNEYS:
For Plaintiff: 	Sanford M. Kirshenbaum, Esq.
ATTORNEYS:
For Defendant: 	Brent Canning, Esq.