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United States Bank National Association v. Bickford

United States District Court, D. New Hampshire

March 31, 2015

U.S. Bank National Association,
Harry John Bickford, et al.


PAUL BARBADORO, District Judge.

This case concerns a mortgage that ambiguously describes the mortgaged property by including a street address and tax map number for one parcel but a deed reference for a different parcel held by the same owner. After the mortgagor defaulted, U.S. Bank foreclosed the mortgage and then purchased the property that the mortgage identified by street address and tax map number at the foreclosure sale. The issue I must resolve is whether the ambiguous description of the property in the mortgage leaves U.S. Bank's title subject to federal tax liens that accrued after the mortgage was recorded.


Harry Bickford owned property located at 9 Elm Street in Winchester, New Hampshire. He acquired title through two separate deeds, the first in 1982 and the second in 1987. The first deed is recorded with the Cheshire County Registry of Deeds at Book 1025, Page 605, and the second is recorded at Book 1180, Page 107. Both deeds provide a detailed metes-and-bounds description of the property. In 2003, Bickford also acquired title to 19 Elm Street, a separate property that is located across the street from 9 Elm Street. The deed for 19 Elm Street is recorded at Book 2005, Page 704.

Bickford granted a mortgage (the "Bickford mortgage") to Aegis Funding Corporation in 2003, which then recorded the mortgage in the same year. As recorded, the mortgage provides the following information regarding the "described property": "SEE LEGAL DESCRIPTION ATTACHED HERETO AND MADE A PART HEREOF." Doc. No. 29-3 at 10. Immediately thereafter, the mortgage identifies the location of the property as "9 ELM STREET, WINCHESTER, NEW HAMPSHIRE 03470." Id . The attached legal description lists the address of the mortgaged property as 9 Elm Street and provides the correct tax map number for that parcel. In what appears to be a mistake, however, the legal description also provides a book and page reference for the deed to 19 Elm Street.

Aegis assigned its mortgage to U.S. Bank in 2011. After Bickford defaulted, U.S. Bank conducted a foreclosure sale on 9 Elm Street, at which it purchased the property itself. U.S. Bank recorded its foreclosure deed to 9 Elm Street in January 2012.

In the meantime, the Internal Revenue Service ("IRS") made the following assessments against Bickford for unpaid taxes:

Taxable Year Amount Date Assessed Date Recorded 2000 $9, 184.49 10/24/2005 1/24/2006 (plus $34.00 in ($34.00 in collection collection fees fees) assessed on 2/13/2006) 2002 $22, 483.50 6/14/2004 3/18/2014; (plus $336.24 ($336.24 refiled on failure to pay failure to pay 5/7/2014 penalty) penalty assessed on 10/29/2007) 2003 $44, 295.28 7/9/2007 10/14/2008 (plus $2, 327.65 ($2, 327.65 in in interest) interest assessed on 7/29/2013)

Doc. No. 29-1 at 4.

U.S. Bank filed a complaint against Bickford and the IRS in state court seeking to reform the mortgage and foreclosure deed. It also sought a declaratory judgment that the tax liens are subordinate to the mortgage and foreclosure deed. The IRS removed the complaint to this Court, and the parties subsequently filed cross motions for summary judgment. Neither side argues that material facts remain in genuine dispute.


Summary judgment is appropriate when the record reveals "no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The evidence submitted in support of the motion must be considered in the light most favorable to the nonmoving party, drawing all reasonable inferences in its favor. See Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).

A party seeking summary judgment must first identify the absence of any genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A material fact "is one that might affect the outcome of the suit under the governing law.'" United States v. One Parcel of Real Prop. with Bldgs., 960 F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). If the moving party satisfies this burden, the nonmoving party must then "produce evidence on which a reasonable finder of fact, under the appropriate proof burden, could base a verdict for it; if that party ...

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