2015-0485, The Bank of New York Mellon, as Trustee v. Eugene Dowgiert

I n 2005, Dowgiert refinanced a mortgage loan on his home with Decision One Dowgiert’s pleadings include, or the record supports, the following facts.

and RSA 47 9:25, II - a (2013). We hold that it did not, and, accordingly, affirm. erred in ruling that the plea is time - b arred under RSA 479:25, II (Supp. 2015) Bank of New York Mellon (bank), as Trustee. We consider whether the court response to a possessory action brought in the circuit court by the plaintiff, the Superior Court (Delker, J.) dismissing his plea of title, which he filed in HICKS, J. The defendant, Eugene Dowgiert, appeals an order of the

on the brief and orally), for the defendant. The Law Offices of Martin & Hipple, PLLC, of Concord (Stephen T. Martin

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

No. 2015 - 0485 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

moved to dismiss Dowgiert’s plea, arguing that it was time - barred. months had elapsed since the bank recorded the foreclosure deed. The bank purchased the property at the foreclosure sale, and nearly one year and seven superior court, nearly one year and eight months had elapsed since the bank the [foreclosure] prior to the [sale].” When Dowgiert filed his plea in the he had been incarcerated; thus, “he could not [have filed] a petit ion to enjoin Dowgiert also alleged that he had not receive d notice of th e foreclosure because that the bank possessed the “original ‘blue - ink’ note at the time of foreclosure.” specific assignment chain” required by the PSA; and (4) there was no evidence Service Agreement (PSA); (3) the “Note [was not] transferred through [the] years late, ther eby not conforming with” certain deadlines in the Pooling and and purported negotiation of the Note”; ( p. 2 2) “the Mortgage assignment was three mortgage because: (1) “Decision One ceased to exist prior to the assignment property. Specifically, he asserted that the bank had lacked legal title to the it, he alleged that the bank did not have the authority to foreclose on his Dowgiert filed his plea of title in the superior court on April 24, 2015. In

the “first Tuesday in May p. 2 2015.” granted. The court ordered Dowgiert to file his plea in the superior court by circumstances, and after consideration of all arguments,” th e motion should be he ld a hearing on the motion and determined that, “[u]nder a totality of the allowing him two weeks to file his plea of title in the superior court. The court counsel, moved in the circuit court for an order vacating the judgment and More than a month later, on November 21, Dowgiert, represented by

object, and the court granted the motion. bank moved in the circuit court for judgment in its favor. Dowgiert failed to Dowgiert failed to do so. More than a week after the deadline, on October 16, the “by the first Tuesday in October, p. 2 2014.” From the record, it appears that 540:17 (2007), the court ordered Dowgiert to file his plea in the superior court mortgage and that, therefore, the foreclosure was invalid. Pursuant to RSA plea of title asserting that the bank did not have the authority to foreclose on the remove Dowgiert from the property. Dowgiert, as a self - represented party, filed a I n July 2014, the bank f iled a possessory action in the circuit court to

to the sale. failed to petition the superior court for an order enjoin ing the foreclosure prior incarcerated and did not receive notice of the foreclosure. Accordingly, he Rockingham County Registry of Deeds. During this time, Dowgiert was around September p. 2 25, 201 p. 3 3, the bank filed the foreclosure deed wi th the mortgage and purchased Dowgiert’s property at the foreclosure sale. On or mortgage, and, o n or around September 3, 2013, the bank foreclosed on the 2011, MERS assi gned the mortgag e to the bank. Dowgiert defaulted on the (MERS) as nominee of Decision One. In 2007, Decision One ceased to exist. In Decision One and a mortgage to Mortgage Electronic Registration Systems Mortgage Company, LLC (Decision One). Dowgiert gave a promissory note to 3

right to petition the superior court. The mortgagor must “institute such The statute establishes a timeframe for the mortgagor to exercise his

omitted). superior court . . . to enjoin the scheduled foreclosure sale.” Id. (quotation notice, the foreclosing party advise the mortgagor of his right to “petition the [foreclosure] sale.” RSA 479:25, II. The statute also requires that, in the certified mail to his last known address . . . at least 25 days before the requires that notice be “served upon the mortgagor or sent by registered or of the foreclosure to the mortgagor. See RSA 479:25, I. RSA 479:25, II procedures require, among other things, that the foreclosing party give notice forecl o sure through the power of sale. See RSA 479:25 (Supp. 2015). Those apply to his plea of title. RSA 479:25 sets forth the procedures for mortgage Dowgiert’s principal argument is that RSA 479:25, II and II - a do not

Care Assoc. v. Governor, 161 N.H. p. 3 378, 385 (2011). language of th e statute to discern legislative intent. See New Hampshire Health Favazza, 160 N.H. at 351. Absent an ambiguity, we will not look beyond the We interpret statutory provisions in the context of the overall statutory scheme. not see fit to include. Strike Four v. Nissan N. Am., 164 N.H. 729, 735 (2013). what the legislature might have said or add language that the legislature did We interpret legislative intent from the statute as written and will not consider possible, we ascribe the plain and ordinary meanings to the words used. Id. its meaning, we first examine the language f ound in the statute, and when expressed in the words of the statute considered as a whole. Id. In construing statutory interpretation, we are the final arbiters of the legislature’s intent as review de novo. Favazza v. Braley, 160 N.H. 349, 351 (2010). In matters of interpretation. The interpretation of a statute is a question of law, which we To resolve the issues before us, we must engage in statutory

dismiss. Id. for legal relief, we must hold that it was improper to grant the motion to pleadings against the applicable law, and if the allegations constitute a basis See i d. We then engage in a threshold inquiry that tests the facts in the true and construe all reasonable inferences in the light most favorable to him. LaBrie, 165 N.H. 194, 195 (201 p. 3 3). We assume that Dowgiert’s pleadings a re susceptible of a construction that would permit recovery. See Plaisted v. review is whether the allegations in Dowgiert’s pleadings are reasonably In reviewing the court’ s grant of the motion to dismiss, our standard of

barred under RSA p. 4 479:25, II - a. Dowgiert appealed. notice “within a year and a day of the recording of the foreclosure deed,” it is also ruled that, because Dowgiert did not bri ng his claim about the foreclosure because Dowgiert failed to bring the m prior to the foreclosure sale. The court concerning the bank’s title to the mortgage are barred under RSA 479:25, II The c ourt granted th e bank’s motion. It ruled that the claims in the plea 4

validity of the foreclosure.” after the foreclosure sale, “any action or right of action . . . based on the foreclose, RSA p. 4 479:25, II applies; the statute bars a mortgagor from bringing, a defense. B ecause, in the plea, Dowgiert challenges the bank’s authority to the defendant.” (quotation omitted)). Dowgiert’s plea is therefore an action, not 540:17 . . . places the burden to institute the action in the superior cour t on Loan Mortg. Corp. v. Willette, 168 N.H. ___, ___ (decided Jan. 12, 2016) (“RSA must “enter . . . and . . . prosecute” i n the superior court. Id.; see Fed. Home legislature instead characterized it as a separate “action” that the defendant action, the legislature did not characterize the plea as a defense. The procedure by which a plea of title may be filed in response to a circuit court RSA 540:17 (emphas e s added). E ven though the statute set s forth the

him. action, and the damages and costs which may be awarded against pay all rent then due or which shall become due pending the next return day, and to prosecute his action in said court, and to order, to enter his action in the superior court for the county at the plaintiff, with sufficient sureties, in such sum as the court shall title to the demanded premises he shall forthwith recognize to the If the defendant shall plead a plea which may bring in question the

specifically addresses the plea of title: circuit court action. Friedline v. Roe, 166 N.H. 26 p. 4 4, 266 (2014). RSA 540:17 court must follow when a defendant raises an issue of title in a plaintiff’s foreclose. RSA 540:17 and :18 (2007) set forth the procedures that the circuit the extent that, in the plea, Dowgiert challenges the bank’s authority to 479:25, II, not a defense, and, therefore, RSA 479:25, II applies to the plea to We hold that Dowgiert’s plea is an “action or right o f action,” RSA

Thus, Dowgiert asserts, the trial court “erred by dismissing [his] Plea of T itle.” limitation or repose, such as RSA p. 4 479:25, II and II - a, do not apply to defenses. periods do not apply. Dowgiert further argues that, generally, statutes of contends, the plea is a “defens e,” and, as such, the statutory limitations — all of which would be barred by” RSA 479:25, II or II - a. Instead, he Dowgiert argues that his plea is not “an action, right of action, or claim

sale.” RSA p. 4 479:2 p. 5 5, II - a (e mphase s added). year and one day from the date of the recording of the foreclosure deed for such conduct of the foreclosure sale shall be brought by the mortgagor . . . after one “[n] o claim challenging the form of notice, manner of giving notice, or the applies to any chall enge to the foreclosure notice. RSA 479:25, II - a states that validity of the foreclosure.” Id. (emphasis added). A separate time limitation thereafter bar any action or right of action of the mortgagor based on the petition. . . prior to sale.” Id. (emphasis added). Failure to do so “s hall 5

RSA 479:2 p. 5 5, II - a. Dowgiert’s claim that the foreclosure notice was inadequate, which, we conclude, is barred under not receive notice of the foreclosure while he was incarcerated. This argument is a restatement of We reject Dowgier t’s argument that his plea was not barred under RSA 479:25, II because he did 

held that “filing in a court without competent jurisdiction did not toll the F.3d 1349, 13 p. 5 58 (11th Cir. 2007) (citing several cases in which the court has files his action in a court of competent jurisdiction. See Jackson v. Astrue, 506 We disagree. Generally, a limitations period does not toll until a party

until after [RSA 479:2 p. 5 5, II - a’s] limitations period expires.” action . . . even if the possessor y action is not transferred to Superior Court expires is sufficient to preserve a defendant’s right to defend a possessory Plea of Title in the [circuit court] before [RSA 479:25, II - a’s] limitation [s] period one month before the limitations period ran.” According to Dowgiert, “filing a raised that claim in the plea of title that he filed in the circuit court “more than complied with RSA 479:25, II - a with respect to his notice claim because he Dowgiert next a rgues that, even if the statutory time limitations apply, he

after foreclosure. RSA 479:2 p. 5 5, II, II - a. actions and claims as “defense s” against the possessory action of the owner a mortgagor to elude the timeframes merely by characterizing the same types of “action[s]” and “claim[s]” are barred, the legislature could not have intended for the statutes unambiguous ly set forth timeframes after which thes e types of and a day had passed since the recording of the foreclosure deed. Given that to challenge the foreclosure notice in that same action even if more than a year action filed in response to a possessory action. The mortgagor could also wait with notice could wait until well after the sale to challenge the foreclosure in an enforcement jurisdiction”). U nder D owgiert’s interpretation, even a m ortgagor parties to “create an end - run around [a] legislative grant of exclusive preclude a common law right of action that would have otherwise allowed Salem, 168 N.H. ___, ___ (decided Feb. 18, 2016) (interpreting a statute to a result that the legislature could not have intended. See Appeal of Town of To conclude otherwise would permit an “end - run” around the statutes —

479:2 p. 5 5, II and II - a, the trial court correctly ruled that the plea is time - barred. failed to file his plea within either of the statutory timeframes set forth in RSA the bank recorded the foreclosure deed in September 2013. Because Dowgiert September 2013 foreclosure sale, and more than one year and one day after Dowgiert filed his plea in the superior court in April 2015 — after the

thus, it applies. RSA 479:2 p. 5 5, II - a.  the form of notice” or the “manner of giving notice” under the statute, and, receive it while he was incarcerated. This contention is a “claim challenging Dowg iert’s plea that the foreclosure notice was inadequate because he did not We further hold that RSA 479:25, II - a applies to the contention in p. 6 6

of title. legislature could not have intended for “action” to refer to the defendant’s plea possessory action. Id. Given the statutory framework, we conclude that the “action” cannot be the same as the “plea.” Rather, it must refer to the court before the op portunity to enter and prosecute the “action” arises, the statute, the defendant must have already filed the plea of title in the superior prosecuted in t he superior court.” Id. (emphasis added). Because, under the circuit court proceedings have halted, “the action may be entered and before the [circuit court].” Id. Finally, RSA 540:18 states that, even though the Then, “[a]fter the filing” of the plea of title, “no further proceedings shall be had plea and the entry of such recognizance” in the superior court. RSA 540:18. provisions relating to the filing of title claims. The first is the “filing of such instead to the plaintiff’ s possessory action. RSA 540:18 contains three However, t he plain language of RSA 540:18 shows that “action” refers

540:18 refers to the same “action” as that in RSA 540:17 — the plea of title. added). Implicit in Dowgiert’s argument is the notion that “action” in RSA court in the same manner as i f it were originally begun there.” Id. (emphase s [circuit] court, but the action may be entered and prosecuted in the superior entry of such recognizance no further proceedings shall be had before the begun there.” RSA 540:18 states that, “[a] fter the filing of such plea and the Dowgiert also misinterprets the phrase “as if [the action] were originally

was not, as Dowgiert contends, transfer red to the superior court. bank’s possessory action remained in the circuit court. The possessory action added). Thus, when Dowgiert filed his plea of tit le in the superior court, the court on the defendant.” Id. (quotation s and ellipsis omitted) (emphasis court but, rather, places the burden to institute the action in the superior require the [circuit court] to transfer or otherwise enter the action in superior [circuit court] may resume.” Id. (quotation omitted). “RSA 540:17 . . . does not enter [his] action in the superior court, then the possessory proceedings in the Willette, 1 p. 6 68 N.H. at ___ (quotation omitted). And, “[i]f the defendant fails to [circuit] court, the [plaintiff’s] possessory action in the [circuit court] is stayed.” defendant raises a plea of title and “files such recognizance as ordered by the control.” This assertion mischaracte rizes the relevant procedural law. W hen a there, the initial filing date of the Plea of Title in the [circuit court] should acts to transfer the possessory action to Superior Court as if originally brought Dowgiert asserts that, “because filing the Plea of Title in Superior Court []

period had expired upon the foreclosure sale. superior court, which he did in April 2015 — months after the limitations RSA 4 p. 7 79:25, II - a could not have been tolled until Dowgiert filed his plea in the in superior court.” Friedline, 1 p. 6 66 N.H. at 266, 26 7 (qu otation omitted). Thus, not have jurisdiction to resolve issue s of title,” which issues “must be resolved not the court of competent jurisdiction over Dowgiert’s plea because “i t does [relevant] statute of limit ations” (quotation omitted)). Here, the circuit court is 7

DALIANIS, C.J.