2010-249 Deutsche Bank National Trust Company v. James Kevlik & a.

No. 2010-249

Derry District Court

Patricia Durgin, appeal an order of the Derry District Court (Coughlin CONBOY, J. The defendants, James Kevlik, Catherine Kevlik, and

William C. Sheridan

had been provided with an eviction notice; and (3) the defendants had refused (1) the plaintiff was entitled to possession of the property; (2) the defendants ___________________________ Through its attorney, the plaintiff filed a landlord and tenant writ, alleging that: The following facts are supported by the record or are undisputed.

estate located in Chester. See RSA 540:12 (2007). We reverse. Deutsche Bank National Trust Company, in its action for possession of real denying their motion to dismiss and granting judgment to the plaintiff,

defendants.

brief and orally), for the plaintiff. Orlans Moran, PLLC, of Boston, Massachusetts (John T. Precobb on the

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 Court accepted the payment. However, the Court accepted said payment with [h]earing on the [m]erits . . .[,] the tenants paid $348.84 into the Court and the the plaintiff. In its order, the trial court also stated that, “One week after the under advisement. Subsequently, the trial court ordered judgment in favor of the motion to continue as well as the motion to dismiss, and took the matter fairness, they should have an attorney here.” However, the trial court denied Plaintiff’s attorney did not oppose this request, stating that, “in the interest of superior court, but requested a continuance in order to consult with counsel. The Kevliks told the trial court they did not wish to pursue the matter in

court. the plaintiff of $348.84 per week pending their entry of an action in superior The trial court told the Kevliks that they would have to pay “recognizance” to characterizing the defendants’ argument as contesting title to the property. sale had occurred. The trial court, however, refused to consider this evidence, The Kevliks argued that they had videotape evidence that no foreclosure

“not from this area.” When questioned further on that point by the trial court, he admitted he was for the property, plaintiff’s attorney suggested five hundred dollars per month. agreement they had. When asked by the trial court to name a reasonable rent 2 Patricia Durgin, the mortgagor, and did not know what, if any, rental been. Until the hearing, he was not aware that the Kevliks were related to the foreclosure sale and that he did not know what the mortgage payments had authenticity. Plaintiff’s attorney acknowledged that his firm had not handled assignment documents were not certified and that he could not attest to their At the hearing, the plaintiff’s attorney admitted that the foreclosure and

June 12, 2009 foreclosure auction. describe a sale of the property from One West Bank, F.S.B., to the plaintiff at a to IndyMac Bank F.S.B. The July 20, 2009 foreclosure deed purports to Electronic Registration Systems, Inc. (as nominee of SouthStar Funding, LLC) transfer of a mortgage executed by defendant Patricia Durgin from Mortgage defendants’ objection. The assignment, dated on January 25, 2009, indicates a mortgage assignment, all of which the trial court allowed into evidence over the ownership,” a foreclosure deed with an attached statutory affidavit, and a proffered copies of the landlord and tenant writ with an “affidavit of Durgin did not appear. The plaintiff’s attorney appeared without his client and At the merits hearing, the Kevliks appeared without counsel. Defendant

motion to dismiss asserting that a foreclosure sale had never taken place. June 12, 2009.” On the day of the merits hearing, the defendants filed a foreclosure of a [m]ortgage, which foreclosure sale was held at the [p]roperty on alleged that it was the current owner of the property “as a result of the to deliver the property. In the eviction notice, attached to its writ, the plaintiff same . . . .” In Liam Hooksett, LLC v. Boynton p. 3 mortgagor, or other person in possession . . . after notice in writing to quit the of any [property] may recover possession thereof from a lessee, occupant, provides that, “[t]he owner, lessor, or purchaser at a mortgage foreclosure sale the subject property. Possessory actions are authorized by RSA 540:12, which does not relieve a possessory plaintiff of the obligation to establish ownership of Although the statute requires title issues to be resolved in superior court, it him.

action, and the damages and costs which may be awarded against

the statute considered as a whole. Kenison v. Dubois are the final arbiter of the intent of the legislature as expressed in the words of The issue before us presents a question of statutory interpretation. We

should have permitted them to challenge the plaintiff’s “offer[s] of proof.” pay all rent then due or which shall become due pending the unauthenticated hearsay.” Further, the defendants assert, the trial court next return day, and to prosecute his action in said court, and to order, to enter his action in the superior court for the county at the plaintiff, with sufficient sureties, in such sum as the court shall title to the demanded premises he shall forthwith recognize to the If the defendant shall plead a plea which may bring in question the

establish ownership because the evidence was based on “incompetent and the documents submitted by the plaintiff’s attorney were insufficient to plaintiff is not entitled to judgment. Specifically, the defendants maintain that 3 burden of demonstrating that it was the owner of the property, and, thus, the On appeal, the defendants argue that the plaintiff failed to carry its addressed the required ownership element of a possessory action brought

RSA 540:17 (2007) provides:

trial court’s interpretation of a statute de novo. Id. ascribe the plain and ordinary meanings to the words used. Id. We review the (2005). We first examine the language of the statute, and, where possible, we

defendants. The court denied this motion. the foreclosure sale and therefore did not have standing to evict the defendants argued that the plaintiff could not have purchased the mortgage at five minutes, and then drove away. No buyer or anyone else appeared. The auctioneer arrived thirty minutes late for the scheduled sale, sat in his car for foreclosure sale had not, in fact, taken place. They explained that the The defendants moved for reconsideration, again asserting that a

Landlord/Tenant action and not a plea of title transfer to the Superior Court.” regards to an appeal to the New Hampshire Supreme Court regarding the file a title action in superior court. The defendants would not have been able to p. 4 entitlement to possession because the defendants stated they did not wish to the trial court could have properly ruled on the issue of the plaintiff’s regarding the foreclosure sale, or other proof of its ownership of the property, proffered authenticated documents, with supporting testimony if necessary, We note the limited nature of our holdings herein. Had the plaintiff

decision to grant judgment to the plaintiff. to show ownership of the property. Accordingly, we reverse the trial court’s On this record, we conclude that the plaintiff has not carried its burden

trial court to admit and rely on that document. See it was actually signed by another individual, “C.M.S.” Thus, it was error for the oath. Further, the initials next to the name on the signature line indicate that subject property, but the purported affidavit was not notarized or signed under that plaintiff’s attorney was “certifying” that the plaintiff was the owner of the and attachments, including an “affidavit of ownership.” This “affidavit” stated Plaintiff’s attorney also submitted a copy of the landlord and tenant writ

628. and found it to be correct. See accompanied by the testimony of a witness who has compared it to the original Liam Hooksett, 157 N.H. at either: (1) certified as correct by a custodian or other authorized person; or (2) evidence provide that a copy of a public record is admissible only when it is documents and presented no other proof of their authenticity. The rules of not, however, have first-hand knowledge as to the authenticity of the copies of a foreclosure deed and affidavit and a mortgage assignment. He did Here, the plaintiff’s attorney presented, as proof of ownership, uncertified

upon these documents. satisfied neither requirement, the trial court erred in admitting and relying

foreclosure sale’ of the property.” Id. The same is true here. was required to prove that it was the ‘owner, lessor, or purchaser at a mortgage seeking possession of the property. Thus, to prevail in this action, the plaintiff that it was the actual owner of the property. Id. “The plaintiff filed a writ record, we agreed that the plaintiff had not carried its burden to demonstrate was not notarized, signed under oath, or admitted into evidence. Id. On that that purported to “certify” that the plaintiff was the owner, but the document 628. Rather, she presented to the court an “Affidavit of Ownership/Tenancy” but she did not testify that the plaintiff was the owner of the property. Id. at 1 p. 5 57 N.H. at 627. At the hearing, the plaintiff’s manager appeared on its behalf, individual other than the plaintiff actually owned the property. Liam Hooksett, pursuant to RSA 540:12. In that case, the defendants asserted that an 5

DALIANIS, C.J.