Summary
In Roberts Construction, Inc., our Supreme Court was confronted with a similar scenario to the case at hand but dealing with the previous version of § 34-28-16 and not the amended version at issue in the present case.Id. at 221.
Summary of this case from N. SITE CONTRACTORS v. SBER ROYAL MILLSOpinion
No. 91-449-A.
June 18, 1992.
Appeal from the Superior Court, Providence County, Pfeiffer, J.
Charles H. White, Ernest Pratt, Blais, Cunningham Crowe, Providence, for plaintiff.
Robert Corrente, Corrente, Brill Kusinitz, Gerard Visconti, Visconti Petrocelli, Joseph Reale, Jr., Jeffrey Gladstone, Partridge, Snow Hahn, Providence, for defendant.
Before FAY, C.J., KELLEHER, WEISBERGER, MURRAY AND SHEA, JJ.
OPINION
This case came before the court for oral argument May 5, 1992, pursuant to an order that had directed both parties to appear and show cause why the issues raised by the appeal should not be summarily decided.
Roberts Construction, Inc. (Roberts), had filed a petition to enforce a mechanics' lien on April 27, 1990. The mortgagee, Fleet National Bank (Fleet), failed to answer the petition (although it was duly served) within the twenty days required by G.L. 1956 (1984 Reenactment) § 34-28-16. In fact an answer was not filed by Fleet until October 1990. Fleet's motion to be allowed to answer out of time was granted by a Superior Court justice on December 13, 1990. In August of 1991 Fleet moved for leave to foreclose on the property free of Roberts's lien. Roberts appealed from the order allowing Fleet to file its claim out of time and also from the order allowing Fleet to foreclose.
Section 34-28-16 provides that the time to answer a petition to enforce a mechanics' lien and file a claim by a mortgagee may be extended for only thirty days and that failure to make a timely response will render the mortgage "void and wholly lost." This statute has since been amended by P.L. 1991, ch. 328, § 1, and now provides that in the event of failure to file a timely answer and statement of claim the mortgage will be subordinated to the mechanics' lien. This amendment is not applicable to the current controversy.
We are of the opinion that the provision that renders a mortgage void and wholly lost in respect to all parties as opposed to subordinating it to the mechanics' lien holder raises serious due process issues since voiding such an interest in regard to parties other than the mechanics' lien holder would serve no useful purpose and would indeed be both arbitrary and capricious.
Consequently, upon considering the arguments of counsel and the memoranda filed by the parties, we hold not only that the trial justice did not err in allowing the petition to foreclose but also that Fleet's interest should be subordinated to that of Roberts. Roberts's appeal is sustained in part and denied in part. The papers in the case may be remanded to the Superior Court for further proceedings.