2009-930, Bank of New York Mellon v. Susan Cataldo & a.

No. 2009-930

Franklin District Court

plea of title to which the bank objected. The district court ruled: later instituted eviction proceedings in district court. The defendants filed a defendants’ mortgaged property at a foreclosure sale in December 2008 and The record supports the following facts. The bank purchased the

a judgment of the Franklin District Court (Gordon DUGGAN, J. The defendants, Susan Cataldo and David Russell, appeal Susan Cataldo and David Russell, by brief, pro

Shechtman Halperin Savage, LLP

Bank of New York Mellon (bank), a writ of possession. We affirm.

Camillo on the brief), for the plaintiff. THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 See

begun there.

the superior court in the same manner as if it were originally municipal court, but the action may be entered and prosecuted in

recognizance no further proceedings shall be had before the

After the filing of such plea and the entry of such

RSA 540:18 states:

awarded against him.

pending the action, and the damages and costs which may be said court, and to pay all rent then due or which shall become due the county at the next return day, and to prosecute his action in the court shall order, to enter his action in the superior court for recognize to the plaintiff, with sufficient sureties, in such sum as

defendant “forthwith recognize to the plaintiff, with sufficient sureties, in such possessory proceedings in district court. Rather, RSA 540:17 requires that the The filing of a plea of title in district court does not immediately halt the

interpretation of statutes, which presents a question of law that we review de question the title to the demanded premises he shall forthwith court from acting further in the case. Our decision depends upon the The defendants argue that filing a plea of title precluded the district

If the defendant shall plead a plea which may bring in

follow when a defendant raises the issue of title. RSA 540:17 states: RSA 540:17 and :18 (2007) detail the procedures district courts are to powers, and duties formerly possessed by the municipal courts). also RSA 502-A:34 (2010) (conferring on the district courts the jurisdiction,

foreclosure proceedings.” This appeal followed. The [bank] has provided documentation of its ownership as a result of [the bank’s] claim is a question of title. This cannot be decided in this Court. district court issued judgment in the bank’s favor, stating: “The only defense to After the defendants failed to file such an action in superior court, the

(2005). subject to modification.” Dalton Hydro v. Town of Dalton, 153 N.H. 75, 78 Id. “When the language of a statute is clear on its face, its meaning is not of the intent of the legislature as expressed in the words of the statute . . . .” novo. Kenison v. Dubois proceed to the final hearing., 152 N.H. 448, 451 (2005). “We are the final arbiter consolidation. In the [absence] of such a filing, the Court will

such an action is filed then this case will be transferred for action in said court. By directing the defendant to recognize to “enter” and p. 3 or promise, to enter his title action in superior court and to prosecute his 540:17 is to the contrary. It places the burden on the defendant to recognize, burden to enter their action in superior court, the plain language of RSA To the extent that the defendants argue that the district court bore the

was authorized to resume the possessory action. their title action in the superior court within the time allowed, the district court defendants failed to comply with the district court’s order by failing to enter require the defendants to recognize (i.e. been considered in the superior court. However, as explained above, when the Here, the defendants filed a plea of title on October 10. Rather than with the district court’s order. Had they done so, their title issues would have the district court, thereby permitting the defendants the opportunity to comply issuance of this order by the district court, no further proceedings were held in person promises to perform some act or observe some condition.” Black’s Law to be entered in the same manner as if it were originally begun there. Upon the A “recognizance” is a “bond or obligation, made in court, by which a consistent with RSA 540:18, which provides that the action in superior court is action in the superior court prior to December 1, 2009. This order is defendants enter a recognizance and directly ordered them to file their title return day, the district court in essence waived the requirement that the certain, that they would enter their action in the superior court at the next

such an absurd result. See Appeal of Carnahan, 149 N.H. 433, 435 (2003). court would also be unable to act. We refuse to construe the statutes to lead to since nothing had been filed in superior court by the defendant, the superior possessory action in limbo – the district court would be unable to act, and court may resume. To conclude otherwise would leave the plaintiff’s superior court, however, we hold that the possessory proceedings in the district the superior court. If the defendant then fails to enter his action in the proceedings shall be had in the district court and the action may be entered in that once such a promise is made via the entry of a recognizance, no further a monetary bond which may be unsecured or secured. RSA 540:18 provides return day and authorizes the district court to require that the defendant post promise to enter his action in the superior court for the county at the next Dictionary 1386 (9th ed. 2009). Thus, RSA 540:17 requires the defendant to

stayed. recognizance as ordered by the court, the possessory action in district court is the plea of title is filed in the district court and the defendant files such district court and the action may be entered in the superior court. Thus, once recognizance has been entered, no further proceedings shall be had in the county at the next return day . . . .” RSA 5 p. 4 40:18 provides that once the sum as the court shall order, to enter his action in the superior court for the 4

DALIANIS, HICKS and CONBOY, JJ., concurred.

Affirmed

possessory actions. See title and possession. The district court has the authority to adjudicate possession of real estate to the bank. This argument fails because it conflates cases involving title to real estate, the court does not have authority to award The defendants next argue that because the district court cannot hear. defendants have failed to demonstrate that it was raised below. See question. See district court. We decline to address this evidentiary argument because the RSA 5 p. 4 40:16 (2007). action in district court that may bring the title of the demanded premises in already determined and ruled that the matter [of title] could not be tried” in court, the defendants were prohibited from offering evidence in the possessory considered evidence of the bank’s ownership “since the [district court] had regard was harmless. Having failed to enter their title action in the superior Finally, the defendants argue that the district court improperly Oak Prop. Mgmt., 151 N.H. 248, 250 (2004). Furthermore, any error in this demonstrate that [they] raised [their] issues before the trial court.” Bean v. Red appealing [parties] . . . to provide this court with a record sufficient to . . . not presented in the lower court.” (quotation omitted)). “It is the burden of the consistently held that we will not consider issues raised on appeal that were LaMontagne Builders v. Brooks, 154 N.H. 252, 258 (2006) (“This court has

the superior court on the defendant. “prosecute” the action, the statute places the burden to institute the action in