2014-0594, Jennifer Pike v. Deutsche Bank National Trust Company, as Trustee

she had a homestead right. See RSA 480:1 (2013) (amended 2015). We affirm. when it declined to enjoin the foreclosure, notwithstanding her assertion that lac ked standing to challenge the assignment of the mortgage to the Trust, and the petitioner argues that the trial court erred when it determined that she enjoin the foreclosure sale of real property located in New London. On appeal, Deutsche Bank National Trust Company, as Trustee (Trust), in her action to Superior Court (McNamara, J.) granting summary judgmen t to the respondent, DALIANIS, C. J. The petitioner, Jennifer Pike, appeals an order of the

the brief and orally), for the respondent. Haughey, Philpot & Laurent, P.A., of Laconia (Christopher J. Fischer on

Urbaitis on the brief and orally), for the petitioner. Howard & Urbaitis, PLLC d/b/a Courteous Law, of Henniker (Deb Bess

No. 2014 - 594 Merrimack

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

rights to challenge the assignment as the actual debtor, her ex - husband. F or debtor, but asserts that because she is the homeowner, she has the same 809, 817 (1991) (quotation and emphases omitted). The petitioner is not the those standing in his shoes.” Woodstock Soapstone Co. v. Carleton, 133 N.H. which merely render the assignment voidable at the election of the assignor or effective to pass legal title, the debtor cannot interp ose defects or objections the assignment ab solutely invalid or ineffective, . . . but, if the assignment is debtor may, generally, assert against an assignee. . . any matters rendering assignment of the mortgage to t he Trust. Under New Hampshire law, “[a] We first address whether the petitioner has standing to challenge the

I. Standing

review the trial court’ s application of the law to the facts de novo. Id. as a matter of law, we will affirm the grant of summary judgment. Id. We genuine issue of material fact, and if the moving party is entitled to judgment Com m’n, 166 N.H. 374, 376 ( p. 2 2014). If our review of that evidence discloses no in the light most fav orable to the non - moving party. Camire v. Gunstock Area the affidavits and other evidence, and all inferences properly drawn fro m them, In reviewing the trial court’ s grant of summary judgment, we consider

the Trust, and this appeal followed. mortga ge and is entitled to enforce the same. The trial court ruled in favor of entitled to judgment as a matter of law because it holds both the note and the Thereafter, the Trust moved for summary judgment, arguing that it was

remains in force. t he petitioner obtained a court order temporarily enjoining the sale. T hat order ( p. 2 2013). The foreclosure sale was scheduled for December 13, 2013; however, 11, 2013, the Trust began foreclosure proceedings pursuant to RSA 479:25 thereafter, the petitioner obtained the property – by quitclaim deed. On July O n July 2, 2013, the petitioner and her husband divorced. Shortly

assignment, dated April 15, p. 2 201 p. 3 3, identifies the Trust as the assignee. 20 0 5 FF2.” This initial assignment was subsequently corrected. The corrective Trustee for FF LMT Trust 2005 - FF2 Mortgage Pass - through Certificates, Series May 2009, the mortgage was assigned to “Deutsche Bank Nation Trust, as only the petitioner’s husband held title to the property by quitclaim deed. In multiple occasions before the bankruptcy filing, when he filed for bankruptcy, property had been conveyed between the petitioner and her husband on February 2007, the petitioner’s husband filed for bankruptcy. Although the mortgage with a mortgage loan from First Franklin Financial Corporation. In Mortgage Corporation. In 2004, the petitioner’s husband refinanced the petitioner and her husband granted a mortgage on the property to New Century originally purchased by the petitioner’s husband in August 2001. In 2003, the The parties do not dispute the following facts. The subject property was 3

Deutsche Bank Nat. Trust Co., No. 14 - cv - 262 - LM, 2015 WL 15 78920, at *8 - 9 (quotation omitted)); see also Patino, 2015 WL 2457886, at * 1; Monchgesan g v. violates the terms of a PSA is voidable rather than void” and citing cases ... have interpreted New York law to mean that a transfer into a trust that and not void. See Rajamin, 757 F. p. 3 3d at 88, 90 (explaining that “most courts alleged failure to comply with the PSA rendered the assignment merely voidable However, the weight of authority supports the Trust’s assertion that the

*4 (Bankr. S.D. Tex. June 5, 201 p. 3 3). 449, 463 (Ct. App. 2013); In re Saldiv ar, No. 11 - 10689, 2013 WL 2452699, at WL 2134576, at *3; Glaski v. Bank of America, N at. Ass’n, 160 Cal. Rptr. 3d 2013) (unreported), rev ’ d, 127 A.D.3d 1176 (N.Y. App. Div. 2015); Auro r a, 2014 Erobobo, No. 31648/2009, 2013 WL 1831799, at * 7 - 8 (N.Y. Sup. Ct. Apr. 29, date of a trust is void under New York law. See Wells Fargo Bank, N.A. v. ca ses that have concluded that an assignment of a mortgage after the closing property of the Trust. See id. In making this argument, she relies upon a few the Trust, the assignment is void and the mortgage and note never became set forth in the PSA were not followed when the mortgage was transferred to beneficiary of it. See id. Rather, she asserts that, because the requirements is not a party to the PSA and does not argue that she is a third - party WL 4471560, at *5 (E.D.N.Y. Aug. 1, 2014). In the instant case, the petitioner Berezo v skaya v. Deutsche Bank Nat. Trust Co., No. 12 CV 0655 (KAM), 2014 indicating that the non - party is a third - party beneficiary” of the contract. evidencing an intent to allow enforcement by such a party, “such a s language standing to enforce the contract unless the contract contains clear language Generally, a non - party to a contract governed by New York law lacks

24 57886, at * 1 (N.Y. App. Div. May 27, 2015). see also Bank of America Nat. Ass’n v. Patino, No. 2014 - 0 p. 3 3453, 2015 WL Rajamin v. Deutsche Bank Nat. Trust Co., 757 F.3d 79, 86 - 90 (2d Cir. 2014); comply with the PSA rendered the assignment merely voidable, not void. See 2014) (un reported). The Trust counters that the Trust’s alleged failure to Scheller, No. 2009 - 22839, 2014 WL 2134576, at *3 (N.Y. Sup. Ct. May 22, T rusts Law § 7 - 2.4 (McKinney 2002); see also Auro r a Loan Services LLC v. later, the assignment is void under New York law. See N.Y. Est. Powers & because the assignment did not occur until May 2009, more than four years contends that the “closing date” relevant to this case was in April 2005, and, mortgages in its corpus by a date certain, known as the “closing date.” She the PSA, which is governed by New York law, requires the Trust to assemble all not comply with its Pooling and Servicing Agreement (PSA). She asserts that The petitioner argues that the assignment is void because the Trust did

the assignmen t is void or only voidable. See id. the petitioner has standing to challenge the assignment turns upon whether stands in the place of her ex - husband. Thus, with this assumption, whether the purposes of this app eal, we assume without deciding that the petitioner p. 4 4

entitled to $100,000 worth of his or her homestead, or of his or her interest of her homestead right. See RSA p. 4 480:1 (providing that “[e]very person is petitioner’s request that the court enjoin the foreclosure, despite her assertion We next address whether the trial cour t erred when it denied the

II. Homestead Right

standing to raise violations of a PSA). them); In re Correia, p. 4 452 B.R. 319, 324 - 25 (B.A.P. 1st Cir. 2011) (debtors lack au tho rity” holding that borrowers who are not parties to PSAs cannot challenge concluding that California Supreme Court would likely follow “the weight of re Dav ies, 565 F. App’x 630, 633 (9th Cir. 2014) (collecting cases and challenge such a transaction.” Berezovskaya, 2014 WL 4471560, at *8; see In to the PSA,” such as the petitioner in this case, “does not have standing to voidable at the election of either party to the agreement,” and that “a non - party of a loan to a trust after the trust’s closing date, renders the transaction law, “an action that violates the term of a trust agreement, such as a transfer Thus, we join those courts that have concluded that, under New York

Rptr. 3d 7 p. 4 45, 751 (Ct. App. 2014) (citing cases). unpersuasive” a nd have rejected its analysis. Kan v. Guild Mort g. Co., 178 Cal. courts analyzing” Glaski, 160 Cal. Rptr. 3d at 463 - 64, “have found it 127 A.D.3d 1176 (N.Y. App. Div. 2015). Additionally, the “vast majority of 1831799, at *7 - 8, has been reversed. See Wells Fargo Bank, N.A. v. Erobobo, Further, the principal case upon which the petitioner relies, Erobobo, 2013 WL also Auro r a, 2014 WL 2134576, at *3; Glaski, 160 Cal. Rptr. 3d at 463 - 64. Berezovskaya, 2014 WL 4471560, at *7 (referring to Erobobo and Saldivar); see vires act, thus making such an act voidable, rather than void. See consider, the well - settled rule that a beneficiary may ratify a trust ee’s ultra The cases upon which the petitioner relies do not address, or even

thus voidable”). law, “the acts of a trustee in contravention of a trust may be ratified, and are majority of courts to consider the issue” have concluded that, under New York Co. Americas, 7 p. 4 48 F.3d 28, 37 n.8 (1st Cir. 2014) (observing that “the vast by the beneficiary.” Id. (quotation omitted); see Butler v. Deutsche Bank Trust ratification,” an unauthorized act by a trustee “is not void but merely voidable otherwise unauthorized act,” and because “a void act is not subject to New York law, because “a trust’s beneficiaries may ratify the trustee’s power to in terfere with the beneficiaries’ right of ratification.” Id. Thus, under a stranger to the trust also had such standing, the stranger would have the only trust beneficiaries have standing to claim a breach of trust.” Id. at 89. “If be ratified by the beneficiaries is harmonious with the overall principle that Rajamin, 7 p. 5 57 F.3d at 88. “The principle that a trustee’s unauthorized acts may acts by trustees are generally subject to ratification by the trust beneficiaries.” (D.N.H. Apr. 9, 2015). This is because, under New York law, “unauthorized 5

est ablished as against all persons”). Nor will the foreclosure automatically record of the proceedings being made in the registry of deeds, the right shall be order” to “appoint appraisers and cause the homestead right to be set off, and a such owner, or upon petition of a judgment creditor and such no tice as it may “upon petition of the owner of a homestead or the wife or husband surviving homestead right. See RSA 480:8 - a (2013) (empowering the superior court, 4 80:8 - a, the fact that the foreclos ure took place” will not impair her alleged assuming that the petitioner “brings and prevails in a proceeding under RSA denied her request that the court enjoin the foreclosure. As the Trust explains, unsustainabl y exercised its discretion or erred as a matter of law when it The petitioner’s arguments fail to persuade us that the trial court

judicial economy.” Proceeding in this manner, the petitioner contends, “fulfills the interest of $100,000 homestead exemption as a condition of the injunction being lifted.” an order could be issued mandating that the [respondent] pay [her] for her injunction remains in place, she could either remain in the home indefinitely or ab out how [her] homestead right will be preserved.” She posits that “[i]f the allow the injunction to remain in place so that she can be given “assurances will receive the benefit of her homestead right is unjust,” and asks that we she argues that “[a] llowing [the Trust] to foreclose without assurance that [she] The petitioner does not challeng e this determination directly. Instead,

property is premature.” foreclosure proceedings,” and “her assertion of her homestead interest in the and, thus, her “right to remain in the premises is not jeopardized by the proceeding itself would not result i n the “automatic ejectment” of the petitioner, N.H. at 437 (quotation omitted). The court explained that the foreclosure occurred, she was in “immediate danger of irreparable harm.” ATV Watch, 1 p. 5 55 permanent injunction because she failed to establish that, if the foreclosure The trial court determined that the pe titioner was not entitled to a

omitted), petition for cert. docketed (U.S. May 2 p. 6 6, 201 p. 5 5). Dep’t, 16 7 N.H. ___, ___, 113 A.3d 239, 243 (2015) (quotation and brackets discretion, or clearly erroneous findi ngs of fact.” Dupont v. Nashua Police issuance of an injunction absent an err or of law, unsustainable exercise of omitted). “We will uphold the decision of the trial court with regard to the the facts a nd established principles of equity.” Id. at 437 - 38 (quotation the discretion to decide whether to grant an injunction “after consideration of merits.” Id. (quotation, ellipses, and brackets omitted). The trial court retains remedy at law[,] and the party seeking an injunction is likely to succeed on the of irreparable harm to the p arty seeking injunctive relief, the re is no adequate omitted). “An injunction should not issue unless there is an immediate danger N.H. Dep’t of Resources & Econ. Dev., 155 N.H. 434, 437 (2007) (quotation permanent, has long been consi dered an extraordinary r emedy.” ATV Watch v. therein, as a homestead”). “The issuance of injunctions, either temporary or 6

HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.

proceed. would be in immediate danger of irreparable harm if the foreclosure were to trial court erred when it determined that the petitioner failed to show that she result in the petiti oner’s removal from the home. Thus, we cannot say that the