2013-0649, In re Estate of Muriel R. Mills

statutory power of sale that allowed Financial Freedom to foreclose upon the Hillsborough County Registry of Deed s. The terms of the mortgage included a Corporation (Financial Freedom). T he mortgage deed was recorded at the (the mortgage) on the property to Financial Freedom Senior Fun ding September 6, 2006, the decedent granted a “home equity conversion mortgage” 20, 2012. At the time of her death, she owned property in Manchester. On or are otherwise undisputed. T he decedent, Mur iel R. Mills, died on January The following facts are drawn from the trial court’s order and the record,

the petitioner’s quiet title action. We affirm. motion of the respondent, Federal National Mortgage Association, to dismiss Muriel R. Mills, appeals an order of the Circuit Court (Patten, J.) granting the CONBOY, J. The petitioner, Walter Hebert, the executor of the E state of

DiGiampaolo on the brief and orally), for the respondent. Harmon Law Offices, P.C., of Newton Highlands, Massachusetts (Amie

brief and orally), for the p etitioner. McDowell & Osburn, P.A., of Manchester (Mark D. Morrissette on the

No. 2013 - 649 9th Circuit C ourt – Nashua Probate Division

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

had no standing as it had “no valid legal interest in the subject property.” “was without legal effect.” As a result, the petitioner claimed the respondent the underlying” mortgage and, thus, any interest granted to the respondent and any of its successors alre ady had abandoned and waived [their] interest in arguing that the respo ndent received the assignment “after Financial Freedom The petitioner moved to strike the appearance filed on behalf of the respondent, appearance on behalf of the respondent and moved to dismiss the petition. attorney who had previously represented Financial Freedom entered an in the decedent’s will could receive the property. Subsequently, the same could issue an order quieting title to the property so that the beneficiary named interest that it would have had in the property” and, therefore, the circuit court court, asserting that Financial Freedom had “waived, lost, or abandoned any In May p. 2 2013, the petitioner filed a petition to quiet title in the circuit

been put “on hold due to outstanding title issues.” probate matter.” It further informed the estate that the foreclosure effort had remains in place regardless of whether or not the lender filed a claim in the mortgage . . . is not a judicial remedy” and that “[t]he security instrument petitioner’s counsel, stating that “the statutory power of sale contained in the On March 5, p. 2 2013, counsel for Financial Freedom wrote to the

Deeds. respondent and thereafter recorded at the Hillsborough County Registry of RSA 556: 1, : 3. On November p. 2 27, 2012, the mortgage was assigned to the claim within six months after the g rant of administration of t he estate. See any interest[] that it may have had in the property” because it f ailed to f ile a Financial Freedom claiming that it, “or any of its related entities, abandoned of the balance due on the de bt. In response, the petitioner’s counsel wrote to entire balance was “due and payable forthwith,” and included the total amount The letter also informed the estate that the note had been accelerated and the the name of the respondent under the power of sale contained in the mortgage. estate explaining that she had been instructed to foreclose on the mortgage in On October 31, 2012, counsel for Financial Freedom sent a letter to the

pr esent a demand to the petitioner pursuant to RSA 556:1, :3 ( p. 2 2007). the mortgage.” Thereafter, Financial Freedom did not file notice of a claim or on the mortgage debt as well as any information regarding “any assignment of administration of her estate. Counsel also requested the cur rent balance due notified Financial Freedom of the decedent’s death and of the opening of the decedent’s estate (estate). In a letter dated March 14, counsel for the petitioner On March 5, 2012, the petitioner was appointed executor of the

the “Lender may enforce the deb t only through the sale of the P roperty.” liability for payment of the debt secured by this Security Instrument” and that borrower. The terms also provided that the “Borrower shall have no personal property under certain enumerat ed circumstances, including the death of the p. 3 3

1 p. 3 31 N.H. 458, 460 - 61 (1989) (explaining that RSA chapter 556 sets forth filing that mortgagee could petition trial court for an extension); Stewart v. Farrel, timely fashion, nor was action commenced within filing deadline, but noting the note” was potentially time - barr ed whe n demand was not presented in “[s]eeking to retain assets of the estate” and “demanding the balance due on N.H. 502, 503, 503 - 04 (1990) (finding second mortgagee ’s action against estate extension pursuant to RSA 556:28 (2007). See Sk rizowski v. Chandler, 133 time requirements in RSA 556:1, :3, and :5 or petition the court for an T o maintain a claim against an estate, a creditor must comply with the

used.” Id. (quotation omitted). and, where possible, we ascribe the plain and ordinary meanings to the words considered as a whole. See i d. “We first examine the language of the statute, arbiter s of the intent of the legislature as expressed in the words of the statute Wells Fargo Bank v. Schultz, 164 N.H. 608, 610 (201 p. 3 3). We are the final provisions. We review the trial court’s statutory interpretation de novo. See Resolving this issue requires that we interpret the pertinent statutory

the estate under RSA 556:5. We disagree. respondent did not timely bring an action against him as the administrator of demand to the estate as a creditor pursuant to RSA 556:1, : p. 3 3, and because the Financial Freedom did not provide ti mely notice of its claim and present a that the respondent is barred from fo reclosing on the mortgage because T he petitioner first contends that the trial court erred by failing to find

the motion to dismiss. Id. constitute a basis for legal relief, we must hold that it was improper to grant tests the facts in the petition against the applicab le law, and if the allegations light most favorable to him. Id. We then engage in a threshold inquiry that petitioner’s pleadings are true and construe all reasonable inferences in the 165 N.H. 194, 195 (20 1 p. 3 3). We assume that the facts set forth in the susceptible of a construction that would permit recovery. Plaisted v. LaBrie, of review is whether the allegations in the petitioner’s pleadings are reasonably In reviewing the trial court’s grant of a motion to dismiss, our standard

and a default judgment “against Financial Freedom, its agent and its assigns.” failing to enter a decree pro confesso pursuant to Probate Division Rule 1 p. 3 31 556:5 (2007). The p etitioner further contends that the trial court erred by administrator wit hin one year of the grant of administration as required by RSA pursuant to RSA 556:1 and :3, and the respondent did not file s uit against the Freedom did not provide notice of a claim and present a demand to the estate find that the respondent’s foreclosure action is barred because Financial On appeal, the petitioner argues that the trial court erred by failing to

dismiss, and this appeal followed. Following a hearing, the circuit court granted the respondent ’s motion to p. 4 4

decree pro confesso and a default judgment “against Financial Freedom, its The petitioner next argues that the tria l court erred by not entering a

not cognizable under a petition to quiet title. and when the respondent took action unde r the power of sale, such claim is of time between when he notified Fi nancial Freedom of the decedent’s death the extent the petitioner may have a claim for damages based upon the length constitute a valid basis for quieting title against the respondent. Further, to respond ent to comply with the requirements of RSA chapter 556 did not property. W e conclude, therefore, that any failure of Financial Freedom or the to bring suit under RSA 556:5 in order to enforce its right to foreclose on the to present a demand pursuant to RSA 556:3, nor was the respondent required mortgage on the property – wh ich included a power of sale – were not required action. Thus, the respondent or its predecessors, as record holder s of the under RSA p. 4 479:25 because a sale under th at provision does not require judicial plain meaning of their terms, apply to a foreclo sure pursuant to a power o f sale :3, :5 (emphasis added). Sections 1, 3, and 5 of RSA chapter 556 do not, by the deadlines only for an “action” or “suit” against the administrator. RSA 556:1, limitation.” T h e relevant provisi ons of RSA chapter 556, however, go vern filing that those statutes “apply to the demand, claim s, and actions without any claims or interests relating to mortgages or other secured claims.” He contends “do not exempt or except out of the notice and demand requirements the The petitioner maintains that the relevant provisions of RSA chapter 556

decree of sale.” Bolduc, 99 p. 4 4 F. Supp. at 90. statutory power of sale is equivalent to, and done instead of, bringing suit for a foreclosure.” See also RSA 479:22 (2013). “In other words, exercising the power, including the giving of a foreclosure deed upon the completion of said condition, give such notices and do all acts as are authorized or required by the [bringing su it in court], the mortgagee or his assignee may, upon breach of the 477:29, III (2013). RSA 479:25 (2013) provides, in relevant part: “Instead of foreclose by sale under the provisions of RSA 479:25 - 27 - a inclusive.” RSA of the performance of. . . any. . . condition contained in the mortgage, to executors, administrators, successors and assign s the right, upon a ny default ‘ statutory power of sale ’ shall be understood as giving the mortgagee and property without a court order in the event of a default.”). “The words which confers upon the trustee or mortgagee the power to sell the mortgaged ‘power of sale’ is a contractual arrangement in a deed of trust or mortgage Supp. 82, 90 (D.N.H. 1998); see 55 Am. Jur. 2d Mortgages § 47 1 (2009) (“A foreclosure without any court proceedings.” Bolduc v. Beal Bank, SSB, 99 4 F. “Under New Hampshire law, power of sale mortgages permit mortgage

sale of the property under the power of sale. debt. Rather, t he only remedy for the m ortgagee to enforce the debt i s through the mortgage, there can be no action against the borrower for payment of the deadlines for claims against estate). Here, however, as stated in the terms of p. 5 5

DALIANIS, C.J.