2012-051, Wells Fargo Bank v. Scott Schultz

home in East Hampstead (the Property), and executed a promissory note and One Mortgage Corporation (Option One) in the amount of $312,000 to purchase a undisp uted. On October 19, 2006, the defendant obtained a loan from Option The following facts are supported by the record or are otherwise

possession of real estate. See RSA 540:12 (2007). We a ffirm. dismiss and granting judgment to th e plaintiff, Wells Fargo Bank, in its action for Circuit Court – Plaistow District Division (Coughlin, J.) denying his motion to CONBOY, J. The defendant, Scott S c hultz, appeals an order of the 10th

orally), for the defendant. MaroneyLaw, PLLC, of Manchester (Walter L. Maroney on the brief and

& a. on the brief, and Marissa I. Delinks orally), for the plaintiff. Hinshaw & Culbertson, LLP, of Boston, Massachusetts (Geoffrey M. Coan

No. 2012 - 051 10th Circuit Court – Plaistow District Division

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803 - 04. In s o ruling, however, we noted: plaintiff [had] not carried its burden to show ownership of the property.” Id. at comport with New Hampshire Rule s of Evidence 90 p. 2 2(4) or 1005, we held that “the mortgage assignment.” Id. at 803. Because the uncertified documents failed to as proof of ownership, uncertified copies of a foreclosure deed and affidavit and a See Kevlik, 161 N.H. at 803 - 04. In that case, “the plaintiff’s attorney presented, plaintiff in a possessory action satisfied the “ownership” element of RSA 540:12. without right, after notice in writing to quit.” In Kevlik, we addressed whether a from a lessee, occupant, mortgagor, or other person in possession, holding it foreclosure sale of any tenement or real estate may recover possession thereof Under RSA 540:12, “[t] he owner, lessor, or purchaser at a mortgage

statute de novo.” Id. meanings to the words used.” Id. “We review the trial court’s interpretation of a language of the statute, and, where possible, we ascribe the plain and ordinary the words of the statute considered as a whole.” Id. “We first examine the ( p. 2 2011). “We are the final arbiter of the intent of the legislature as expressed in interpretation. See Deutsche Bank N at’l Trust Co. v. Kevlik, 161 N.H. 800, 8 02 was the “owner” of the Property. The issue presents a question of statutory possessory action under RSA 540:12 because the plaintiff failed to prove that it motion to dismiss. He argues that the plaintiff lacked standing to bring a On appeal, the defendant argues that the trial court erred by denying his

judgment for the plaintiff. This appeal followed. judicial notice of the eviction notice. On December 16, p. 2 2011, the court entered plaintiff s ubmitted a certified copy of its foreclosure deed, and the trial court took trial court denied. Thereafter, the cour t held a hearing on the merits. The On October 24, 2011, the defendant moved for reconsideration, which the

to real estate. See RSA 50 p. 2 2 - A:14 (2010). because it found that it lacked jurisdiction to rule on issues directly affecting title October 18, 2011, the trial court denied the defendant’s motion to dismiss submitted several affidavits and documents in support of his motion. On upon two prior assignments that were “fatally defective, if not fraudulent.” He him. The defe ndant argued that the plaintiff’s alleged possessory right was based to d ismiss the action on the ground that the plaintiff lacked standing to evict Division seeking to evict the defendant from the Property. T he defendant moved filed a possessory action, pursuant to RSA 540:12, in the Plaistow District the defendant was served with an eviction notice. On July 22, 2011, the plaintiff purchased the Property, as evidenced by a foreclosure deed. On June 15, 2011, The foreclosure sale occurred on May 18, 2011, at which the plaintiff

the foreclosure. See RSA 479: p. 2 25, II (2001). sold at foreclosure. The defendant did not petition the superior c ourt to enjoin mortgage payments and in April 2009 was informed that the Property would be mortgage to Option One. In Decemb er 2008, the defendant fell b ehind on his p. 3 3

superior court, see Kevlik, 161 N.H. at 80 p. 3 3. In a possessory action in the district Mellon v. Cataldo, 161 N.H. 135, 139 (2010), issues of title must b e resolved in [division] has the authority to adjudicate possessory actions,” Bank of N.Y. issues of “title of real estate.” RSA 502 - A:14, I. Thus, a lthough “[t]he district In New Hampshire, the district division lack s jurisdiction to adjudicate

we find the cases unhelpful to our analysis. offer little guidance in construing our own statutory foreclosure scheme. Thus, forecl osures effected under a power of sale.”). A s the plaintiff notes, these cases (“Statutes play an especially significant role in connection with mortgage Eaton v. Federal Nat. Mortg. Ass ’n, 969 N.E.2d 1118, 1127 (Mass. 2012) cases were dependent upon interpretations of each state’s statutory scheme. See at *5 - 6 (Ala. Civ. App. Dec. 16, 2011). However, the re sults reached in these Sturdivant v. BAC Home Loans Servicing, LP, No. 2100245, 2011 WL 6275697, that a mortgagor may contest issues of title in a post - foreclosure proceeding. See 1985). We agree that t he cases cited b y the defendant stand fo r the proposition Manufacturers Hanover Mortg. Corp. v. Snell, p. 3 370 N.W.2d 401 (Mich. Ct. App. See, e.g., Bank of New York v. Bailey, 951 N.E.2d 331 (Mass. 2011); T he defendant relies on several out - of - state cases to support his position.

to the foreclosure sale. We disagree. to prove in the district division its “record title” through assignments leading up lender and the foreclosing entity.” He argues that the plaintiff should be required action, particularly where there are interve ning transfers between the original be sufficient to establish the standing of a possessory plaintiff to bring an eviction current mortgage market, the mere provision of a foreclosure deed . . . should not The defendant argues that even i f the plaintiff satisfied Kevlik, “in the

under RSA 540:12. See Kevlik, 161 N.H. at 804. it was a “purchaser at a mortgage foreclosure sale” eligible to seek possession the plaintiff’s certified copy of the foreclosure deed was sufficient to establish that demonstrating that it is one of the three enumerated entities. We conclude that (Emphasis added.) A plaintiff may recover possession under RSA 540:12 by purchaser at a mortgage foreclosure sale . . . may recover possession.” of its foreclosure deed. Further, RSA 540:12 pr ovides that an “owner, lessor, or fact, the defendant does not dispute that the plaintiff submitted a certified copy . . . regarding the foreclosure sale.” Id.; see also N.H. R. Ev. 902(4), 1005. In Unlike in Kevlik, here the plaintiff “proffered [an] authentic ated document

Id. at 804.

possession.. . . have properly ruled on the issue of the plainti ff’s entitlement to other proof of its ownership of the property, the trial court could supporting testimony if ne cessary, regarding the foreclosure sale, or Had the plaintiff proffered authenticated documents, with p. 4 4

D ALIANIS, C.J.