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2014-0782, Joseph Castagnaro v. The Bank of New York Mellon
a foreclosing entity to hold both the mortgage and note at the time 1) Does New Hampshire common law and/or RSA § 479:25 require
question s of law: Court of Appeals for the First Circuit (Howard, J.) certified to us the following DALIANIS, C. J. Pursuant to Supreme Court Rule 34, the United States
defe ndant. (Elizabeth T. Timkovich and Phoebe N. Coddington on the brief), for the Pappas on the brief), and Winston & Strawn, LLP, of Charlotte, North Carolina Primmer Piper Eggleston & Cramer, P.C., of Manchester (Thomas J.
on the brief), for the plaintiff. The Law Offices of Martin & Hipple, PLLC, of Concord (Stephen T. Martin
Opinion Issued: January 26, 2016 Submitt ed: January 7, 2016
THE BANK OF NEW YORK MELLON
v.
JOSEPH CASTAGNARO
No. 2014 - 0782 U.S. Court of Appeals for the First Circuit
___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
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 22 as 2
undated i ndorsement in blank. assignment from Countrywide Bank FSB to Countrywide Home Loans, and a n undated i ndorsement from American to Countrywide Bank FSB, an undated the second includes an undated assignment from Regency to American, an i ndorsement from Regency to American Residential Mortgage (American), and The record contains two versions of the note. The first shows an undated
The Bank of New York Mellon (Bank). The Bank is the current mortgagee. Servicing (BAC). BAC subsequently assigned the mortgage to the defendant, On December 3, 2010, MERS assigned the mortgage to BAC Home Loan
mortgage) traveled different routes. underlying agreement to repay the loan on the property secured by the (evidencing the security interest in the property) and the note (evidencing the Regency’s successors and assigns. From that point forward, the mo rtgage Registration Systems, Inc. (MERS) as nominee for Regency (the lender) and Mortgage Corporation (Regency) and a mortgage to Mortgage Electronic plaintiff, Joseph Castagnaro, executed a promissory note in favor of Regency The First Circuit’s order provides the following facts. In April 2007, the
153 N.H. 211, 212 (2006). question, we need not address the second question. See Therrien v. Sullivan, N.H. ___, ___, 121 A.3d 821, 825 - 27 (2015). In light of our response to the first adequate agency relationship. See Bergeron v. N.Y. Community Bank, 168 lender and lender’s successors and assigns” suffices on its own to show an requirement and language in the mort gage naming the mortgagee “nominee for between the note holder and the mortgage holder does meet any such note at the time of a non - judicial foreclosure because an agenc y relationship (amended 2015) require s a foreclosing entity to hold both the mortgage and not answer whether New Hampshire common law or RSA 479:25 (2013) For the reasons stated below, we answer the first question as follows: We need
onset of the transaction indicate such intent as a matter of law? the unity rule ? If so, does separating the mortgage and note at the requirement, can the parties’ intent to separate the two overcome holder and the mortgage holder does not satisfy such a foreclosure, and that an agency relationship between the note unity of th e mortgage and note at the time of a nonjudicial 2) Assuming that the common law and/or RSA § 479:25 requires a
relationship? assigns” suffice on its own to show an adequate agency mortgagee “nominee for lender and lender’s successors and requ irement, and does language in the mortgage naming the between the note holder and the mortgage holder meet that of a nonjudicial foreclosure? If so, can an agency relationship 3
826. held the N ote at the commencement of foreclosure.” Id. at ___, 121 A. 3d at agency relationship between NYCB and “any downstream assignee of DMA that explained that the mortgage alone conclusively establishe d that there was an solely upon the language of the mortgage. Id. at ___, 121 A.3d at 826 - 27. We court’s finding that NYCB was the agent of the unidentified noteholder based under RSA 479:25.” Id. at ___, 121 A.3d at 825. We also upheld the trial that “an agent of the noteholder may properly institute foreclosure proceedings even if it did not ho ld the note. See id. at ___, 121 A.3d at 823, 825. We held One issue in Bergeron was whether NYCB had the authority to foreclose
___, 121 A. 3d at 822. at 822. The bank in Bergeron was N ew York Community Bank (NYCB). Id. at default on the mortgage, in itiated foreclosure proceedings. Id. at ___, 121 A.3d mortg age was ultimately assigned to a bank that, upon the homeowner’s successors and assigns. Id. at ___, 121 A.3d at 822. A nd, in both cases, the both cases, the mortgage was given to MERS, as nominee for the lender and its The mortgage in Bergeron is also similar to the mortgage in this case. In
___, 121 A. 3d at 822. at the commencement of the foreclosure proceedings is not identified. Id. at of i ndorsements. Id. at ___, 121 A.3d at 822. The holder of the Bergeron note been transferred a number of times as indicated by an allonge with a number (DMA). Id. at ___, 121 A.3d at 822. Like the note here, the Bergeron note had favor of a lende r; in Bergeron, the lender was Drew Mortgage Associates, Inc. ___, 121 A.3d at 822. Like the note here, the Bergeron note was executed in executed both a note and a mortgage on the same day. Bergeron, 168 N.H. at certified question. Like t he plaintiff in this case, the plaintiff in Bergeron The parties dispute whether our decision in Bergeron answers the first
court pursuant to Supreme Court Rule 34. Circuit and requested that the First Circuit certify qu estions of law to this mortgage contains a clause allowing it. The plaintiff appealed to the First “mortgagee” to conduct a non - judicial foreclosure when, as in this case, the proceed with the fo reclosure under RSA 479:25, which authorizes a federal district court ruled that because the Bank was the mortgagee, it could outset of the transaction trumped any common law rule requiring unity. The concluding that the parties’ intent to separate the mortgage and note at the moved to dismiss it. The federal district court granted the Bank’s mot ion, Once in federal court, the plaintiff amended his complaint, and the Bank
to federal court on diversity jurisdiction grounds. obtained an ex parte injunction in superior court. The Bank removed the case sought t o foreclos e. Days before the scheduled foreclosure sale, the plaintiff After the plaintiff failed to make certain mortgage payments, the Bank 4
HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.
Remanded.
respond to the questions of law transferred to us by the First Circuit. The merits of the plaintiff’s case are not before us, however. Our role is only to agency relationship was irregular or legitimately challenged by the plaintiff”). A.3d at 827 (declining to “address whether the defendant could foreclose if the case, unl ike NYCB in Bergeron, is not entitled to foreclose. See id. at ___, 121 agency relationship between the noteholder and the Bank, the Bank in this questions the validity of the assignment of the mortgage and, therefore, the In arguing for a different result, the plaintiff contends that, because he
obviates the need for us to answer the second certified question. holding in Bergeron is dispositive. Our answer to the first certified question unnecessary to answer this question in light of our holding in Bergeron. Our the mortgage and the note at the time of a non - judicial foreclosure, we find it either our common law or RSA 479:25 require s a foreclosing entity to hold both at 823, 825 - 27. Similarly, although the first certified question asks whether conclusively establishes the requisite agency relationship. Id. at ___, 121 A.3d mortgagee as “nominee for Lender and Lender’s successors and assigns” in itiate foreclosure proceedings; and (2) language in the mortgage naming the decide that question and held that: (1) an agent of the noteholder may properly mortgage is required in a non - judicial foreclosure, we found it unnecessary to Although Bergeron presented the issue of whether unity of note and
___, 121 A.3d at 826. limited way, thus evidencing the existence of an agency relationship.” Id. at language “plainly authorizes MERS to act on the Lender’s beh alf, albeit in a property. Id. at ___, 121 A.3d at 822. In Bergeron, we explained that this assigns) power of sale and the right to foreclose and sell the mortgaged expressly grant MERS (solely as nominee for the lender and its successor s and successors and assigns.” Id. at ___, 121 A.3d at 822. Both mortgages also separate corporation that is acting solely as a nominee for Lender and Lender’s to that of the mortgage in this case. Both mortgage s state that “MERS is a The language upon which we relied in the Bergeron mortgage is identical