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Bilden Props., LLC v. Birin

Supreme Court of New Hampshire

August 21, 2013

Bilden Properties, LLC & a .
v.
S. Gerald Birin & a

Argued June 4, 2013.

Page 1144

Hillsborough-southern judicial district.

Coughlin, Rainboth, Murphy & Lown, P.A., of Portsmouth ( Kenneth D. Murphy on the brief and orally), for petitioner Bilden Properties, LLC.

Wacks & McHale PC, of Lynnfield, Massachusetts ( Kenneth D. Wacks and Michelle A. McHale on the brief, and John F. Willis orally), for petitioner TD Bank, N.A.

Hage Hodes, P.A., of Manchester ( Jamie N. Hage on the brief and orally), for the respondents.

DALIANIS, C.J. HICKS, CONBOY, LYNN and BASSETT, JJ., concurred.

OPINION

Page 1145

Dalianis, C.J.

The petitioners, Bilden Properties, LLC (Bilden Properties) and TD Bank, N.A. (TD Bank), appeal, and the respondents, S. Gerald and Gail Birin (the Birins), cross-appeal, an order of the Superior Court ( Nicolosi, J.) finding, among other things, that the petitioners are bona fide purchasers for value, who acquired interests in the subject property without notice of the Birins' mortgage on it. We affirm in part, reverse in part, vacate in part, and remand.

The trial court found or the record supports the following facts. The property at issue is 719 Daniel Webster Highway in Merrimack. On [165 N.H. 256] December 18, 2001, Austin James Properties, LLC acquired title to the property and granted first and second mortgages to Southern New Hampshire Bank. The managing member of Austin James Properties, LLC was Scott Desantis. In 2006, to secure a number of debts Desantis and entities that he controlled owed to the Birins, Austin James Properties, LLC granted a $1 million mortgage on the property to the Birins. The $1 million mortgage far exceeds the property's fair market value.

The Birins' mortgage deed is captioned incorrectly. Although the text of the deed identifies the grantor as " Austin James Properties, LLC," the caption identifies the grantor as " Austin James Development, LLC." (Emphases added.) Perhaps because of the caption error, the grantor index in the registry of deeds lists Austin James Development, LLC as the grantor of the Birins' mortgage instead of Austin James Properties, LLC.

In May and July 2007, Austin James Properties, LLC granted mortgages on the property to Blackfoot Capital, LLC. The May 2007 mortgage lists the grantor as Austin James Properties, LLC. ...


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