2014-0024, George Maroun, Sr. & a. v. Deutsche Bank National Trust Company

undisputed on the record before us. Prior to 1991, the plaintiffs owned The following facts are drawn from the trial court’s order or are otherwise

I. Background

The plaintiffs appeal, and w e af firm. judgment motion and grant ed the bank ’s cross - motion for summary judgment. wife. The Superior Court (McHugh, J.) den ied the plaintiffs’ summary National Trust Company (bank), from foreclosing on property owned by the Maroun (wife), filed a petition seeking to enjoin the defendant, Deutsche Bank CONBOY, J. T he plaintiffs, George Maroun, Sr. (husband) and Edith

and Justin M. Fabella on the brief, and Ms. Delinks orally), for the defendant. Hinshaw & Culbertson LLP, of Boston, Massachusetts (Marissa I. Delinks

Paul A. Petrillo, of Salem, by brief and orally, for the plaintiff s.

No. 2014 - 024 Rockingham

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

that the husband waive d or release d his homestead rights with respect to the On appeal, the plaintiffs argue that the trial court erroneously concluded

motion. granted the bank ’s motion for summary judgment and denied the pl aintiffs’ issues of material fact, and each moved for summary judgment. The trial court foreclosure sale o f the property. The parties agreed that there were no disputed mortgage debt, and requesting a permanent injunction against the bank ’s arguing that the husband’s homestead right has priority over the p. 2 2006 The plaintiffs filed a petition for injunctive relief in the superior court,

sought to foreclose up on the property. debt. Following her discharge, t he wife did not cure h er arrears, and the bank secured by the p. 2 2006 mortgage and to make certain ongoing payments on the protection, she was required to pay some prepetition arrearage amounts the 2006 mor tgage. When t he wife ultimately eme rged from bankruptcy right in the property and that the husband’s claim had a higher priority than her bankruptcy case that asserted that the husband possessed a homestead 2010, the wife filed amended schedules of assets with the bankruptcy court in listed the property as an asset o n the required schedule of real property. In In 2008, the wife filed an individual Chapter 13 bankruptcy petition that

address the status of the husband’s homestead right. p. 2 2009, the mortgage was assigned to the bank. The bank took no action to P roperty,” t he husband did not sign the note or the mortgage document. In spouse, if any, release all rights of homestead... and ... other interests in the Although the mortgage document also state s, “B orrower [wife], and Borrower’s mortgage document erroneously state s that the wife i s a single w oman. on the property (2006 mortgage), which are the subject of this litigation. The In 2006, the wife, alone, executed both a promissory note and a mortgag e

right and other interest s in the property. mortgage) that included the same language waiving the husband’s homestead p. 2 2002, the husband and wife executed a nother mortgage on the property (2002 mortgagor, hereby waive all rights of homestead and other interests herein.” In the property (2001 mortgage), which stated: “I, George C. Maro un, husband of Registry of Deeds. Also in 2001, the husband and wife executed a mortgage on mortgage on the property. The affidavit was filed with the Rockingham County only the 1991 deed, and the correction did n ot purport to relate to any specific made the 2001 affidavit “to correct said omission.” The affidavit referenced state that [he] released [his] homestead rights.” The husband purportedly wife and that, “t hrough accident, inadvertence or mistake, the deed did not which stated that at the time he executed the 1991 deed he was married to the years later, in 2001, the husband executed a notarized affidavit (2001 affidavit), deed (1991 deed) that conveyed his interest in the property to the wife. Ten property in Salem (the property) together. In 1991, the husband executed a p. 3 3

results and effectuate the legislative purpose of the statutes. Id. S tatutory they do not contradict each other, and so that they will lead to reasonable more statutes that deal with a similar subject matt er, we construe them so that so in harmony with the overall statutory scheme. Id. When interpreting two or used. Id. We do not construe statutes in isolation; instead, we attempt to do language of a statute, we ascribe the plain and ordinary meaning to the words Ameriquest Mortg age Co., 155 N.H. 19, 22 (2007). When examining the expressed in the words of the statute considered as a whole. Chase v. statutory interpretation, we are the fi nal arbiters of the legislature’ s intent as review de novo. Deyeso v. Cavadi, 165 N.H. 76, 79 (201 p. 3 3). In matters of interpretation and application of statutes present questions of law, which we homestead exemption. See RSA 480:1,:3 - a,:5 - a (2013),:4 (Supp. 2014). The Resolving this issue requires us to interpret a nd appl y the statutory

be valid.” frequently a written waiver or encumbrance of [the] homestead must occur to statute “does not contain conditional words or phrases regarding when or how waiver in the 2001 affidavit, to the 2006 mortgage because the homestead “imputed” the husband’s prior waivers of his homestead right, including the mortgage. On appeal, the plaintiffs argue that the trial court erroneously right s” was “sufficient to validly waive his homestead rights” as to the 2006 explaining that his intent in giving the deed was to release his homestead The trial cour t concluded that the husband’s notarized 2001 “affidavit

I I I. Waiver of Homestead Right

(quotation omitted). a matter of law, then we will affirm the grant of s ummary judgment.” Id. genuine issue of material fact and if the moving party is entitled to judgment as 282 (201 p. 3 3) (quotation omitted). “If our review of that evidence discloses no matter of law.” Granite State Mg mt. & Res. v. City of Concord, 165 N.H. 277, exists, we determine whether the moving party is entitled to judgment as a its capacity as the nonmoving party and, if no genuine issue of material fact judgment, “we consider the evidence in the light most favorable to each party in In reviewing the trial court ’ s ruling s on cross - motions for summary

I I. Standard of Review

address each argument in turn. plaintiffs assert that the erroneous reference “is not without relevance.” We woman in the 2006 mortgage document was probably a scrivener’s error, the court’s finding that an erron eous reference to the wife’s status as a single based upon rulings in the wife’s bankruptcy case. Finally, despite the trial the bank is estopped from foreclosing on the husband’s homestead rights find ing that, pursuant to the doctrine s of res judicata and collateral estoppel, 2006 mortgage. The plaintiffs also contend that the trial court erred by not p. 4 4

waiver of the homestead exemption); Perley v. Woodbury, 76 N.H. 23, 25 - 26 1998) (rejecting argument tha t a mortgage document must contain an explicit homestead right. See Verdolino v. Anderson, 12 F. Supp. 2d 205, 206 (D.N.H. requirement that the text of the deed contain an express waive r of the deed is signed by both spouses with the requisite formalities, there is no formalities required for the conveyance of land.” RSA p. 4 480:5 - a. Moreover, if a money, unless it is executed by the owner and wife or husband, if any, with the mortgage made at the time of purchase to secure payment of the purchase Additionally, “[n]o deed shall convey or encumber the homestead right, except a provi ded in this chapter.” RSA 480:4; see Deyeso, 165 N.H. at 79. made a charge thereon according to law”; and (4) “the levy of executions as improvement of the homestead”; (3) “the enforcement of mortgages which are mechanics and others for debts created in the construction, repair or right exemption: (1) “the collection of taxes”; (2) “the enforcement of liens of payment of debts.” The statute provides only four exceptions to the homestead sale on execution, and from liability to be encumbered or taken for the homestead right is exempt from attachment during its continuance from levy or In accord with the statute’s purpose, RSA 480:4 states that “[t]he

only one spouse legally owns the homestead. See RSA p. 4 480:3 - a. statute, therefore, contemplates a homestead right in both spouses, even when did not join because she “preserved her homestead right by occupation”). The plaintiff’ s homestead right was not affected by three mortgages in which she 480:3 - a; see Bothell v. Sweet, 6 A. 646, 64 8 (N.H. 1886) (concluding th at spouse is entitled to the homestead right during his or her lifetime. RSA right during the owner’s lifetime,” and, after the owner’s death, the surviving and the husband or wife of the owner are entitled to occupy the home stead who occupy the homestead but are not title owners of the property: “The owner The statutory protection of the homestead right also extends to spouses

Id. at 80 (quotation and brackets omitted). encouraging property ownership and independence on the part of the citizen.” and ellipsis omitted). “It also promotes the stability and welfare of the state by citizens becoming paupers.” Deyeso, 165 N.H. at 79 - 80 (quotation, brackets, protects the family from destitution, and protects society from the danger o f its ... to protect and preserve inviolate ... a family home....”). “The exemption N.H. 62, 69 (1859) (“[T]he great and paramount object of the homestead act [is] homestead roof.” Deyeso, 165 N.H. at 79; see also Gunnison v. Twitchel, 38 exemption is to secure to debtors and their families the shelter of the Stewart v. Bader, 15 p. 4 4 N.H. 75, 88 (2006). “The purpose of the homestead “The homestead right is gener ally exempt from attachment or encumbrance.” her homestead, or of his or her interest therein, as a homestead.” RSA 480:1. In New Hampshire, “[e]very person is entitled to $100,000 worth of his or

their public p olicy objective. See Deyeso, 16 p. 5 5 N.H. at 80. homestead protections are universally held to be liberally construed to achieve 5

s ee also 31 Am. Jur. 2d Exemptions § 277 (2012) (noting that, “apart from an automobile by selling vehicle and converting asset into nonexempt property); 483 (Iowa 1946) (concluding widow waived deceased husband’ s exemption for constitutional or statutory restriction.” In re Kline’s Estate, 24 N.W. 2d 481, for the benefit of others or unless such waiver is against public policy or some “[o]ne has a right to waive an exemption in h is own favor unless he also holds it which the law gives to the owner”). O ther jurisdictions have concluded that “[t]he exemption of a homestead from attachment or levy is a personal privilege chattels); Currier v. Sutherland, p. 5 54 N.H. 475, 486 (1874) (recognizing that Wyman v. Gay, 37 A. 325, 326 (Me. 1897) (addressing exemption of certain Capps, 263 P. 411, 411 (Colo. 1928) (considering automobile exemption); right, are generally considered personal privileges of the debtor. See Pa ppas v. can be waived by contract). S tatutory exemptions, such as the homestead Funding, 150 N.H. 581, 584 (2004) (recognizing that statutory mechanic’ s lien statutory right to a revocation hearing); Duke/Fluor Da niel v. Hawkeye (1846); s ee, e.g., Debonis, 153 N.H. at 605 (noting that petitioner waived his individuals, may be waived by the m.” Fletcher v. Neally, 20 N.H. 464, 466 common sense, is, that a provision, made by law for the benefit of particular (2006). “[T] he general principle, recognized by repeated decisions and by a known right. See Debonis v. Warden, N.H. State Prison, 153 N.H. 603, 605 Waiver is the voluntary or intentional abandonment or relinquishment of

and continued to reside in the property with his wife. See RSA 480:3 - a,:4. notwithstanding the fact that the husband did not sign the mortgage document issue before us is whether th at waiver was effective as to the 2006 mortgage, to the conveyance of his entire int erest in the property to his wife. Thus, the homestead right, not with respect to a specific encumbrance, but with respect executing the 2001 affidavit, the husband purported to relinquish his statutory requirements of RSA 477:3 and RSA 480: p. 5 5 - a). In contrast, by constitute a charge on homestead according to law because it did not satisf y encumbrance. Cf. Chase, 155 N.H. at 22 - 23 (concluding mortgage could not waivers cannot be interpreted to act upon any other conveyance or mortgage waivers executed in compli ance with RSA 480:5 - a. Th e two mortgage The 2001 affidavit waiver is di stinguishable from the 2001 and 2002

agree. homestead right, by virtue of the waiver contained in his 2001 affidavit. We 2006 beca use he had waived all his interest in the property, including his argues, instead, that the husband did not have a homestead right to assert in property. See RSA 480: p. 5 5 - a. The bank does not challenge this proposition but did not convey or encumber any homestead right that the husband had in the mortgage. Therefore, the 2006 mortgage did not comply with RSA 480:5 - a and Here, there is no dispute that the husband did not sign the 2006

waiver is unnecessary to encumber or convey the homestead right). (1911) (recognizing that if the statutory requirements are satisfied, an express p. 6 6

This a ffidavit is given to correct said omission.” Th us, th e document expressly mistake, the [1991] deed did not state that I released my homestead rights. t he 2001 affidavit, the husband states: “[T]hrough accident, inadvertence or language of the 2001 affidavit and the circumstances surrounding its filing. In W hether the hus band waived his homestead right here turns on the

of waiver is required. RSA 480:5 - a. “with the formalities required for the conveyance of land,” no fu r ther evidence 7 p. 6 6 N.H. at 25 - 26. Thus, if a mortgage document is signed by both spouses, such an unequivocal intention. S ee Verdolino, 12 F. Supp. 2d at 206; Perley, encumbrance of the homestead right by deed, obviates the need for proof of course, compliance with RSA 480:5 - a, which allow s for conveyance or which evidences an unequivocal intention to do so.” Id. (quotation omitted). Of may waive the homestead right broadly, as was the case here, “only by an act further hold that there is a presumption against such a waiver, and a party waived”). However, given the protective purpose of the homes tead right, we the Minnesota Supreme Court has “said that homestead rights may be Union v. Detlefson - Delano, 830 N.W.2d 859, 865 (Minn. 2013) (recognizing that public policy or some constituti onal or statutory restriction. See Marine Credit be waived by the holder of the right, unless such a waiver would be against Therefore, we hold that homestead rights, like other statutory rights, may

permitted under Virginia constitution). (29 Gratt.) 719, 72 4 - 2 7 (1878) (concluding that waiver of exemption was spouse are entitled to exercise. See Reed v. Union Bank of Winchester, 70 Va. casts the homestead right as a personal privilege, which the homeowner and therein, as a home stead.” RSA 480:1 (emphasis added). Thus, the statute is entitled to $100,000 worth of his or her homestead, or of his or her interest the homestead right statute is also instructive. It provides that “[e]very person (200 7) (allowing waiver of homestead right before marriage). T he language of vests in surviving spouse upon the owner - spouse’s death); RSA 5 p. 6 60:15, :16 right); RSA 560:14 (2007) (allowing waiver of homestead right after the right RSA 480:5 - a (providing approach for conveying or encumbering the homestead homestead right with respect to a security interest i n manufactured housing); statutory provisions. See RSA 477:44, IV (2013) (contemplating waiver of limited waiver s of the homestead right are specifically provided for under other 480, however, expressly prohi bits a waiver of the homestead right. Further, rights under RSA chap ter 540 to “be null and void”). Nothing in RSA chapter elsewhere in the statute); RSA 540:28 (2007) (declaring any waiver by tenant of (prohibit ing waiver of statutory right to payment of wages, except as provided the power to limit, or even prohibit such waivers. See, e.g., RSA 275:50 (2010) Although, generally, statutory rights may be waived, t he legislature has

to public policy”). waive o r may be estopped to assert” an exemption unless “it would be contrary attempt to do so by executory agreement,” a debtor “has the option to claim or p. 7 7

preclusive effect of the bankruptcy court’s order confirming the wife’s Chapter the bank from foreclosing on the property due to what they assert is the The plaintiffs next argue that res judicata and collateral estoppel prevent

I V. Res Judicata and Collateral Estoppel

subordinate to the mortgage held by [the bank].” concluding “that any homestead rights possessed by [the husband are] was effective as to the 2006 mortgage, and that the trial court did not err by (2012). We, therefore, hold that the husband’s waiver of his homestead right law.” RSA 480:4; see Walbridge v. Estate of Beaudoin, 163 N.H. 804, 806 order to comply with RSA 480:5 - a and to be a “charge thereon according to mortgage, the mortgage deed was not required to be signed by the husband in not have a homestead right in the property when the wife executed the 2006 right that he could assert against future creditors. Because the husband did homestead right by executing the 2001 affidavit, and that he no longer had a Accordingly, we conclude that the husband effectively waived his

the policy underlying the homestead right. W e, consequently, conclude that the affidavit waiver in this case did not violate upon the husband relinquishing all future claims to a homestead exemption. the 2001 affidavit was coerced or that the 2001 mortgage was conditione d mortgagee requested the affidavit. Moreover, the plaintiffs do not allege that executed at the request of the mortgagee, the record is unclear as to which Further, although the trial court found that the 2001 affidavit was

underlying the homestead right. Thus, we do not conclude that the waiver, in and of itself, violates the policy indicia o f coercion, fraud, economic abuse, or other misconduct by the wife. relinquished the statutory protections under circumstances that bear no Bybee, p. 7 78 S.W. 579, 584 (Mo. 1904). Here, the non - owner spouse expressly the non - owner spouse and dependent childre n. See Meyer Bros. Drug Co. v. the fact that the homestead laws were prim arily enacted for the protection of compelled by ill treatment to abandon her husband”). Our solicitude reflect s notwithstanding wife’s absence from the homestead, because “she was petitio nee ’s claim of ownership through deed executed only by the husband, Atkinson, 37 N.H. 434, 436 (1859) (recognizing wife’s homestead right over right without the consent of the non - owner spouse. See, e.g., Atkinson v. of the homestead right when an owner - spouse has attempted to relinquish the whether th is waiver violates public policy. Historically, w e have been protective violate d any other statutory or constitutional provision, w e next consider homestead right statute, and the plaintiffs have not argued that this waiver Because we have concluded that a waiver is permissible u nder the

respect to the 1991 conveyance to his wife. conveys the husband’s unequivocal intention to waive his homestead right with p. 8 8

husband’s homestead right. This right, however, was based only upon an Here, the wife’s amended bankruptcy schedules listed as a “claim” the

preclusion). full and fair adjudication in the initial action” is an exception to issu e § 2 p. 8 8 (1982) (recognizing that inadequate “opportunity or incentive to obtain a collateral estoppel in sentencing hearings); Restatement (Second) of Judgments F.3d 295, 305 (2d Cir. 1999) (considering incentive to litigate with respect to opportunity to litigate their claims”); S.E.C. v. Monarch Funding Corp., 192 fully and vigorously” and concluding that they “received a ‘full and fair’ other factors, that “petitioners h ad every incentive to litigate the SEC lawsuit Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 - 32 (1979) (noting, among in the first proceeding, courts consider the party’s incentive to litigate. See determining whe ther a party had a full and fair opportunity to litigate the claim (1982); Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 758 (1st Cir. 1994). When See Kremer v. Chemical Construction Corp., 456 U.S. 461, 480 - 81 & n.22 that party must first have had a full and fair opportunity to litigate the claim. decision to be given preclusive effect against a party as to a particular claim, judicata and collateral estoppel rest upon the principle that, in order for a prior the bank’s challenge to the husband’s claimed homestead right. Both res appeal, they have not persuaded us that res judicata or collateral estoppel bar s Moreover, even assuming that the plaintiffs preserved this argument for

defenses constitutes waiver). defenses); Super. Ct. Civ. R. p. 9 9(d) (recognizing that failure to plead affirmative (2010) (stating that both res judicata and collateral estoppel a re affirmative forum of trial.” (quotation omitted)); see also Gray v. Kelly, 161 N.H. 160, 164 rule that parties may not have judicial review of matters not raised in the Asset Fin ance Co. v. Wyner, 156 N.H. 46 p. 8 8, 472 (2007) (“It is a long - standing conclude that this issue was not properly preserved for appeal. See Singer regarding the lack of preclusive effect of the bankruptcy court’s decision, we filed a motion for reconsideration addressing the trial court’s observation did not argue res judicata or collateral estoppel before the trial court, and never trial court’s ruling on their judicial estoppel argument. Because the plaintiffs the only argument asserted by the plaintiffs. The plaintiffs do not appeal the have no preclusive effect, it rejected the plaintif fs’ judicial estoppel argument – bankruptcy court’s decision on the bank’s motion for relief from stay could judicata or collateral estoppel. Although the trial court observed that the and brackets omitted)). The plaintiffs made no argument base d upon res relying upon a contradictory argument to prevail in another phase” (quotation party from prevailing in one phase of a case using one argument and then (recognizing that judicial estoppel “protects judicial integrity by preventing a (Emphasis added.) But see In re Zachary G., 159 N.H. 146, 152 (2009) alternate position from that taken by th e [wife] in her earlier bankruptcy case.” to the trial court that the bank should be “judicially estopped from asserting an 13 plan. However, i n their motion for summary judgment, the plaintiffs argued 9

invalidati ng deeds or mortgages that contai n clerical error s, and we will not requirements for conveyances of real estate, does not contain a provision RSA 477:4 - a to:4 - h (2013). RSA chapter 477, which sets forth the well as compliance with various notification and disclosure requirements, see execution, acknowledgement, and recording, see RSA 477: 1, : 3, :3 - a (2013), as land.” The statutor y formalities required for the conveyance of land include deed must be executed “with the formalities required for the conveyance of RSA 480:5 - a requires that, to convey or encumber the homestead right, a

no further, perhaps to their peril.” We are not persuaded. woman’ presumes that a bona fide purchaser or future mortgagees need look not without relevance” because “[r]eferencing the [wife] simply as ‘a single the description of the wife’s marital status in the 2006 mortgage do cument “is formalities of a land conveyance.” See RSA 480:5 - a. They further assert that homestead right, to execute the [encumbrance] of a homestead with the requiring the mortgagor and his/her spo use, in order to properly encumber the 2006 mortgage with the error is inconsistent “with the statutory scheme plaintiffs do not dispute these findings; rather, they argue that enforcing the respect to her marital status,” which neither she nor the bank identified. The and concluded that “the probability is that there was a scrivener’s error with the reference to the wife as a single woman was an “erroneous representation” woman, was without independent legal significance. The trial court found that misstatement in the 2006 mortgage, which referenced the wife as a sing le The plaintiffs also argue that the trial court erred by concluding that the

V. Misstatement in 2006 Mortgage Document

bar the bank’s challenge to the husband’s homestead right. redeem”). We, therefore, decline to apply res judicata or collateral estoppel t o creditor “has no way to anticipate whether the judgment debtor will choose to of homestead claim before the end of the redemption period because the p. 9 967 (Wash. 1967) (declining to require judgment cred itor to challenge validity preclusive reach of a confirmed plan.”); cf. Costanzo v. Harris, 427 P.2d 963, default, like many other post - confirmation events, does not come within the Carvalho, 335 F.3d 45, 5 0 (1st Cir. 2003) (“A debtor’s post - confirmation husband’s homestead claim in the wife’s bankruptcy proceeding. See In re confirmation default provide d the bank sufficient incentive to litigate the the circumstances, we cannot conclude that the mere possibility of a post husband still resided with his wife in the property at th e time of default. Under the bank if the wife defaulted on the terms of her Chapter 13 plan and if the Therefore, the husband’s homestead right would only emerge as an issue for stated,” the plan made no mention of the husband’s homestead right. secured creditors shall retain the liens securing their claims unless otherwise included a plan to cure her home mortg age arrearage and stated that “[a] ll 126 (1882) (quota tion omitted). Although the wife’s amended Chapter 13 plan “inchoate and imperfect right” in the property. Cross v. Weare, 62 N.H. 125, p. 10 10

DALIANIS, C.J.