2012-451, Mark Case v. St. Mary's Bank

Act (CPA), see RSA ch. 358 - A (2009). We affirm. 540 - A:2 (2007), :3 (Supp. 2012), and the New Hampshire Consumer Protection judgment on his claims that the Bank engaged in trespass and violated RSA St. Mary’s Bank (the Bank), and denying his cross - motion for summary Superior Court (Garfunkel, J.) granting s ummar y judgment to the defenda nt, CONBOY, J. The plaintiff, Mark Case, appeals from an order of the

Catherine B. Cosgrove on the brief, and Mr. Nelson orally), for the defendant. Nels on, Kinder + Mosseau, PC, of Manchester (Richard C. Nelson and

brief and orally), for the plaintiff. Follender Law Offices, P.L.L.C., of Nashua (Richard C. Follender on the

No. 2012 - 451 Hillsborough - northern judicial district

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, Concor d, 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 p. 2 22 as 2

CPA, and for trespass. T he parties filed cross - motions for summary judgment. The plaintiff sued the Bank for violation s of RSA 540 - A: p. 2 2 and :3 and the

from the apartment until May 7. possessions were missing. The plaintiff did not remove all of his possessions apartment door was “wide open” and subsequently alleged that many of his the apartment to remove his possessions, the plaintiff observed that his remained at the property. On April p. 2 21, when the Bank allowed him access to Although he leased another apartment on February 19, most o f his possessions The plaintiff has not resided at the property since January 25, 2011.

another foreclosure sale at which there was a successful third - party bidder. boarded up the building ’ s e ntranceways. On April 13, the Bank conducted action.” That day, the Bank changed the locks to the outside doors and order will result in the issuance of ordinance violation citations and court written permission. The City informed the Bank: “Failure to comply with this “no re - occupancy of the dwelling units in [the property]” without the City’s it had previously issued for the property. The City directed that there could be disrepair of the premises,” it was revoking the “Certificate of Compliance” that repair it. The City stated that because of the “total lack of maintenance and uninhabitable and that Marcelin had ignored the City’s repeated requests to On March 17, the Bank was notified by the City that the property was

unsafe and prohibiting occupancy. City placed a legal notice on the property’s front door, stating that it was into the building. The plaintiff complied with this request. On February 7, the representative asked the plaintiff to allow her, a plumber, and an electrician about the problem to a Bank representa tive, and, on January p. 2 27, the Marcelin, who denied that he still owned the property. The plaintiff then spoke and electricity to the building. The plaintiff spoke about the problem to in the building, and, as a result, the City of Manchester (City) turned off water foreclosure sale, a pipe from the second floor apartment burst, causing a flood On January 25, more than two months before the rescheduled

was lifted, and another foreclosure sale was scheduled for April p. 2 2011. bankruptcy, which stayed any further action. On Ja nuary 26, 2011, the stay one of the mortgages. Before the foreclosure sale closed, Marcelin filed for In December 2010, the Bank conducted a foreclosure sale with r espect to

from the Bank. purchased the property in p. 2 2007 and fina nced his purchase with two mortgages third floor apartment in Manchester from Jean M. Marcelin. Marcelin The following facts are drawn from the record. The plaintiff rented a

I. Facts and Procedural History p. 3 3

up, the Bank acted as Marcelin’s agent. asserts that when the Bank changed the locks to the property and boarded it to the property or because it was a “mortgagee in possession.” Alternatively, he that the Bank was the “owner” of the property either because it had legal title neither an “owner” of the property nor Marcelin’s “agent.” The pla intiff argues trial court concluded that the Bank did not meet this definition because it was housing or space in a manufactured housing park to another person.” The thereof who rents or leases resident ial premises including manufactured RSA 540 - A:1, I, defines a “[l]andlord” as “an owner, lessor or agent

statutory scheme and not in isolation. Id. to include. Id. We also interpret a statute in the context of the overall legislature might have said or add language that th e legislature did not see fit legislative intent from the statute as written and will not consider what the ascribe the plain and ordinary meaning to the words used. Id. We interpret considered as a whole. Id. When examining the language of the statute, we arbiter of the intent of the legislature as expressed in the words of the statute of Atkinson v. Malborn Realty Trust, 164 N.H. 62, 67 (2012). We are the final provisions. We review the trial court’ s statutory interpretation de novo. Town Resolving this issue requires that we interpret the pertinent statutory the Bank was not a “landlord” within the meaning of RSA chapter 540 - A. The plaintiff first argues that the trial court erred when it decided that

A. R SA Chapter 540 - A Claims

(quotation omitted). a matter of law, then we will affirm the grant of summary judgment.” Id. genuine issue of material fact and if the moving party is entitled to judgment as judgment.” Id. (quotation omitted). “If our review of that evidence discloses no must be considered in the light most favorable to the party opposing summary presented in the record, as well as any inferences reasonably drawn therefrom, Bldg. & Dev. Corp., 160 N.H. 690, 692 (2010) (quotation omitted). “All evidence its summary judgment ruling.” Concord Gen. Mut. Ins. Co. v. Gre en & Co. “We review de novo the trial court’ s application of the law to the facts in

II. Discussion

trial court’s rulings – h e has abandoned his CPA claim. appeal followed. On appeal, the plain tiff challenges only the first two of the with him. The plaintiff unsuccessfully moved for reconsideration, and this to the plaintiff under the CPA because it never engaged in “trade or commerce” because its entry on the property was privileged; and ( p. 3 3) the Bank is not liable a “landlord” as defined in RSA 5 p. 4 40 - A:1, I (2007); (2) the Bank did not “trespass” ruled that: (1) the Bank i s not liable under RSA 540 - A:2 or :3 because it is not In grant ing the Bank’s motion and denying the plaintiff’s motion, the trial court 4

692 (2010). “Under the title theory, legal ‘ title ’ is in the mortgagee until the see Land America Commonwealth Title Ins. Co. v. Kolozetski, 159 N.H. 689, Nelson & D. Whitman, Real Estate Fina nce Law § p. 4 4.1, at 193 (5th ed. 2007); jurisdictions that follow some form of the “title” theory of mortgages. 1 G. purposes of RSA chapter 540 - A. New Hampshire is one of fewer than ten title to the property by virtue of its mortgage made it an “owner” for the We disagree with the plaintiff that the mere fact that the Bank had legal

(u nabridged ed. 2002). possessor or not.” Webster’s Third New International Dictionary 1612 defines an “owner” a s “one that has the legal or rightful title, whether the interpreted according to its plain meaning, observing that the dicti onary 5 p. 4 40 - A: 1, I, is warranted. Indeed, he contends that the word “owner” should be RSA 540 - A:1, I, is ambiguous and that resort to the l egislative history of RSA Moreover, the plaintiff does not argue tha t the word “owner” as used in

our interpretation of RSA 5 p. 4 40 - A:1, I. in the property. Id. The legislative history of RSA 479:25, II is not relevant to “owner” in RSA 479:25, II was intended to refer to “all persons” with an interest the legislative history of RSA 479:25, II, which led us to conclude that th e word The plaintiff ignores the fact that our decision in Snyder was based upon

“owns” it. We decline his invitation. hold that be cause the Bank clearly has an interest in the property, the Bank He urges us to apply this definition to the word “owner” in RSA 5 p. 4 40 - A:1, I, and RSA 47 9:25, II means “all persons who h ave an interest in the property.” Id. The plaintiff observes that in Snyder we stated t hat the word “owner” in

foreclosu re. Id. (quotation omitted). Thus, we reasoned, the lessee was entitled to notice of the concluded that the lessee was a “record owner of the premises.” Id. at 37 Id. (quotation omitted). Additionally, because the lease had been recorded, we conveyed a leasehold to the lessee, the lessee was a “grantee of the mor tgagor.” grantee of the mortgagor. Id. at 36 - 37. We decided that because the mortgagor upon our review of that history, we concluded that the phrase r eferred to the “potentially ambiguous,” we consulted legislative histo ry. Id. at 3 p. 5 5 - 36. Based omitted). Because we found the phrase “the then record owner” was then record owner of the premises.” Snyder, 13 p. 4 4 N.H. at 34 (quotation given statutory l anguage that required n otice be given to the mortgagor or “the whether a lessee with a recorded lease was entitled to notice of a foreclosure different statute – RSA 479:25, II (Supp. 1990). The issue in that case was Hampshire Savings Bank, 134 N.H. 32 (1991). In Snyder, we interpreted a making this argument, the plaintiff mistakenly relies upon Snyd er v. New the property under RSA 540 - A:1, I, b ecause the Bank had legal title to it. In We first address the plaintiff’s assertion that the Bank was the “owner” of 5

possession, the mortgagee “assume[s] the normal responsibilities of an owner (N.M. 1946) (quotations omitted). When a mortgagee becomes a mortgagee in contract between him and the mortgagor.” Davis v. Savage, 168 P.2d 8 p. 5 51, 863 a mortgagee who takes possession of the mortgaged land by virtue of the because it was a “mortgagee in possession.” “A mortgagee in possession . . . is We turn next to the plaintiff’s assertion that the Bank was an “owner”

legal title to the property. the plaintiff’s contention that the Bank was an “owner” merely be cause it held RSA p. 5 540 - A:1, I, to be consistent with our common law. Accordingly, we reject deemed an “owner” of real property, we construe the word “owner” as used in intention to abrogate our common law regarding when a “mortgagee” may be 572, 575 (1984). Because the legislature has not clearly expressed its the statute clearly expresses such an intention.” Hill v. Dobrowolski, 125 N.H. “[W] e will not construe a statute as abrogating the common law unless

through a foreclosure sale.”). undertakes the role of a mortgagee in possession or acquires ownership mortgagee does not incur responsibility for the mortgaged premises unless it T he L aw of Real Estate Financing § 12:17 (rev. ed. 2012) (“Generally, the mortgage [,] the mortgagor is the owner of the land.”); cf. 2 M.T. Madison e t a l., 7 p. 5 5 N.H. 220, 226 (1909) (“[U]ntil the mortgagee has entered under his “mortgagee in possession.” Lyman, 18 N.H. at 233, 234; see Lyford v. Laconia, sees fit to assert [its] r ight s as the owner of the estat e,” such as by becoming a common law, t he mortgagee is not deemed the “owner” until “the mortgagee theoretical purposes, is to be reg arded as the owner of the land.”). Under our mortgagee or one claimin g under him, the mortgagor, for practical and security purposes only, and that, except as between the mortgagor and the (“Title theory states today generally recognize that the mortgagee holds title for pur pose.” (quotation omitted)); 1 G. Nelson & D. Whitman, s upra § 4.1, at 193 anomalous, and exists only between him and the mortgagor and for a limited other purpose and against every other person. The title of the mortgagee is one purpose, while, at the same time, the mortgagor is the owner for every Co., 109 N.E. 696, 701 (Ill. 191 5) (“The mortgagee is the legal owner for only mo rtgaged.” Orr, 36 N.H. at 578; see City of Chicago v. Sullivan Machinery those holding his rights under the mortgage, is the owner of the estate “The mortgagor of real e state, as against all per sons except the mortgagee and 233, 233 (1846) (emphasis adde d); see Orr v. Hadley, 36 N.H. 575, 578 (1858). [it] is not to be regarded as the owner of the land.” Lyman v. Hibbard, 18 N.H. Alt hough a mortgagee has legal title to the property, “[w]e have held that

mortgagor, however, retains equitable title.” Kolozetski, 1 p. 5 59 N.H. at p. 6 692. conveyance that passes legal title to the property in fee to the mortgagee; the supra § 4.1, at 191. In New Hampshire, “a mortgage in theory is a conditional mortgage h as been satisfied or foreclosed. . . .” 1 G. Nelson & D. Whitman, 6

landlord,” and was mortgagee in possession.). dominion and control over the property that is usually . . . exer cised by a and . . . collected rents from the tenant s of the buildings” exercised “the 1915) (M ortgagee who “employed janitors, provided fuel and elevator service, Id.; see Citizens Savings & Trust Co. v. Rogers, 155 N.W. 155, 159 - p. 6 60 (Wis. management d ecisions and receiving and responding to tenant complaints.” 65, 69 (Wash. Ct. App. 2003). “Additional factors could include making as “leasing, making repairs, and paying bills.” Coleman v. Hoffman, 64 P.3d possession include the indicia of control that landlords normally exhibit,” such suffice.” Id. “In an apartment building, factors indicating a mortgagee’s the collection of rent and active management of the real estate “will probably mortgagee may not render the mortg agee a mortgagee in possession; however, Whitman, s upra § 4.25, at 286. For instance, collection of rent alone by a property and, thus, possesse d it, “is a factual issue.” 1 G. Nelson & D. Whether a mortgagee has exercised dominion and control over the

dominion and control over the property.”). caused by unsafe conditions on the pr operty, the mortgagee must exercise 1 p. 6 68 (“In order for a mortgagee to be responsible for damages to third parties dominion and control over the property.”); 54A Am. Jur. 2d Mortgages, supra § must do so in compliance with the terms of the mortgage and must exercise Creditors § 8:7 (rev. ed. 2009) (“To obtain possession lawfully, the mortgagee Whitman, supra § 4.25, at 286; see 1 W.H. Brown, The Law of Debtors and ‘dominion and control’ over the mortgaged real estate.” 1 G. Nelson & D. standard is best expressed in terms of whether the mortgagee exercised implied, of the mortgagor.” 54A Am. Jur. 2d Mortgages § 152 (2009). “[T]he has possession under his or her mortgage and with the consent, express or possession of the premis es, is not a mortgagee in possession unless he or she general rule is that a holder of a mortgage, even though physically in possession without actually occupying the premises.” Id. Moreover, “t he & D. Whitman, s upra § 4.25, at 286. “[A] mortgagee can be a mortgagee in possession varies with the nature and condition of the property.” 1 G. Nelson have possession of the premises qua mortgagee. What constitutes such “In order to qualify as a mortgagee in possession, the mortgagee must

States, 315 F. Supp. 908, 911 (D. Vt. 19 p. 7 70). third parties, not just as to the mortgagor. See Town of Bristol v. U n ited mortgagee in possession, a mortgagee becomes the property’s “owner” as to Touma v. St. Mary’s Bank, 142 N.H. 7 p. 6 62, 768 (1998). In effect, by becoming a possession is responsible for repairing an d maintaining the property. See “assumes the duties of provident owner”). Thus, for instance, a mortgagee in see Brown v. Simons, 44 N.H. 475, 478 (1863) (mortgagee in possession or possessor of real estate.” 1 G. Nelson & D. Whitman, s upra § 4.46, at 375; 7

that the Bank violated RSA 540 - A:2, :3. err when it granted summary judgment to the Bank on the plaintiff’s claims not a “landlord” as defined by RSA 540 - A:1, I. Therefore, the trial court did not Because the Bank was neither an “owner” nor Marcelin’s “agent,” it was

“agent” as a matter of law. control over the Bank’s actions. Accordingly, the Bank was not Marcelin’s correctly concluded, there were no facts to establish that Marcelin had any shall not do.” Id. at 312 - 13 (quotation omitte d). Here, as the trial court principal manifesting some continuous prescription of what the agent shall or mean actual or physical control at every moment; rather, it turns upon the the agent’s actions.” Id. (quotation omitted). “Control by the principal does not act; and (3) the understanding that the principal is to exert some control over principal that the agent shall act for him or her; (2) the agent’s consent to so necessary fact ual elements to establish agency are: “(1) authorization from the Bouffard v. State Farm Fire & Cas. Co., 162 N.H. 305, 311 (2011). The agent. “[T] he existence of an agency relationship is a question of fact.” The plaintiff argues, in the alternative, that the Bank acted as Marcelin’s

an “owner” within the meaning of RSA chapter 540 - A. possession. Because the Bank was not a mortgagee in possession, it was not are insufficient to support a finding that the Bank was a mortgagee in respons e to the City’s revocation of the property’s “Certificate of Compliance” inspect the damage from the wa ter pipe bursting and the Bank’s actions in 1093 - 94. Similarly, here, we conclude that the Bank’s representative ’s visits to support a finding that the mortgagee was a mortgagee in possession. Id. at and the flooding of a building,” the court ruled that this was insufficient to for emergency repairs and clean up work following the breaking of water pipes four occasions, asked the tenant to ‘keep an eye on it,’ and arranged and paid although a representative of the mortgag ee “visited the property on three or from the plaintiff here. Blackstone, 445 N.E.2d at 1093. In Blackstone, the tenant in that case, so too the Bank neither demanded nor received rent Just as th e mortgagee in Blackstone neither demanded nor received rent from its power of sale. Blackstone, 445 N.E.2d at 1093; see RSA 4 p. 7 79:22 (2001). Blackstone, like the Bank in this case, foreclosed on the property by exercising by which mortgagee may foreclose by possession). T he mortgagee in Blackstone, 445 N.E.2d at 1093; see RSA 479:19 (2001) (setting forth process “had not made an entry into possession for the purpose of foreclosure.” Blackstone instructive. In Blackstone, as in this case, the mortgagee (a bank) National Bank v. Hanson, 445 N.E.2d 1093 (Mass. Ct. App. 19 p. 8 83), we find Because the facts of this case are similar to those in Blackstone Valley 8

determination was erroneous, we uphold it. Therefore, we affirm the trial off.” In light of the plaintiff’s failure to argue that the trial court’s other code violations or dangerous conditions, and have utilities turned on or board up doors and windows, drain water from pipes, eliminate buil ding or property by “entering the Property to make repairs, change locks, replace or virtue of its mortgage agreement, which expressly allowed it to secure the Here, the trial court determined tha t the Bank was privileged to enter by

under RSA chapter 540 - A, he is mistaken. have been privileged to enter the property unless it was the property’s owner Accordingly, to the extent that the plaintiff argues that the Bank could not public nuisance. See Restatement (Second) of Torts, supra §§ 191 - 211. regardless of the actor’s interest in the land, such as to abate a private or Restatement (Second) of Torts, supra § 1 p. 8 87. A third form of privilege arises reasonable time and in a reasona ble manner in order to demand . . . the rent.” privileged, upon default in payment of rent, to enter the leased land at a Restatement (Second) of Torts, supra §§ 185 - 1 90. For instance, “[a] landlord is of pr ivilege derives from an actor’s interest in the property at issue. to the entry. Restatement (Second) of Torts, supra §§ 167 - 1 84. Another form (citations omitted). One form of privilege is based upon the possessor’s consent acts or refrains from acting.” Restatement (Second) of Torts, supra comment e possessor, or may be given by law because of the purpose for whic h the actor it is privileged. Such a privilege may be derived from the consent of the “Conduct which would otherwise constitute a trespass is not a trespass if

Restat ement (Second) of Torts § 15 p. 8 8 (1965).

duty to remove. (c) fails to remove from the land a thing which he is under a (b) remains on the land, or or a third person to do so, or (a) enters land in the possession of the other, or causes a thing of the other, if he intentionally of whether he thereby causes harm to any legally protected int erest One is subject to liability to another for trespass, irrespective

Restatement (Second) of Torts: Moulton v. Groveton Papers Co., 112 N.H. 50, 54 (1972). Under the “[A] trespass [is] an intentional invasion of t he property of another.”

entranceways, and, therefore, was liable for trespass. We disagree. chapter 540 - A, it had no right to change the locks or board up the building’s The plain tiff contends that unless t he Bank was an “owner” under RSA

B. Trespass p. 9 9

D ALIANIS, C.J.