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In re Estate of Mills

Supreme Court of New Hampshire

November 13, 2014

In re Estate of Muriel R. Mills

Argued June 26, 2014.

Editorial Note:

Under New Hampshire procedural rule this decision is subject to motion for rehearing, as well as formal revision before publication in the New Hampshire reports.

9th Circuit Court -- Nashua Probate Division.

[167 N.H. 126] McDowell & Osburn, P.A., of Manchester ( Mark D. Morrissette on the brief and orally), for the petitioner.

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

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

OPINION

Page 1058

Conboy, J.

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

The following facts are drawn from the trial court's order and the record, or are otherwise undisputed. The decedent, Muriel R. Mills, died on January 20, 2012. At the time of her death, she owned property in Manchester. On September 6, 2006, the decedent granted a " home equity conversion mortgage" (the mortgage) on the property to Financial Freedom Senior Funding Corporation (Financial Freedom). The mortgage deed was recorded at the Hillsborough County Registry of Deeds. The terms of the mortgage included a statutory power of sale that allowed Financial Freedom to foreclose upon the property under certain enumerated circumstances, including the death of the borrower. The terms also provided that the " Borrower shall have no personal liability for payment of the debt secured by this Security Instrument" and that the " Lender may enforce the debt only through the sale of the Property."

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

On October 31, 2012, counsel for Financial Freedom sent a letter to the estate explaining that she had been instructed to foreclose on the mortgage in the name of the respondent under the power of sale contained in the mortgage. The letter also informed the estate that the note had been accelerated and the entire balance was " due and payable forthwith," and included the total amount of the balance due on the debt. In response, the petitioner's counsel wrote to Financial Freedom claiming that it, " or any of its related entities, abandoned any interest[] that it may have had in the property" because it failed to file a claim within six months after the grant of administration of the estate. See RSA 556:1, :3. On November 27, 2012, the mortgage was assigned to the respondent and thereafter recorded at the Hillsborough County Registry of Deeds.

[167 N.H. 127] On March 5, 2013, counsel for Financial Freedom wrote to the petitioner's counsel, stating that " the statutory power of sale contained in the mortgage ... is not a judicial remedy" and that " [t]he security instrument remains in place regardless of whether or not the lender filed a claim in the probate matter." It further informed the estate that the ...


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