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Bank of New York Mellon v. Dowgiert

Supreme Court of New Hampshire

June 28, 2016

THE BANK OF NEW YORK MELLON, AS TRUSTEE
v.
EUGENE DOWGIERT

          Argued: March 8, 2016

         Rockingham

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

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

          HICKS, J.

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

         Dowgiert's pleadings include, or the record supports, the following facts. In 2005, Dowgiert refinanced a mortgage loan on his home with Decision One Mortgage Company, LLC (Decision One). Dowgiert gave a promissory note to Decision One and a mortgage to Mortgage Electronic Registration Systems (MERS) as nominee of Decision One. In 2007, Decision One ceased to exist. In 2011, MERS assigned the mortgage to the bank. Dowgiert defaulted on the mortgage, and, on or around September 3, 2013, the bank foreclosed on the mortgage and purchased Dowgiert's property at the foreclosure sale. On or around September 25, 2013, the bank filed the foreclosure deed with the Rockingham County Registry of Deeds. During this time, Dowgiert was incarcerated and did not receive notice of the foreclosure. Accordingly, he failed to petition the superior court for an order enjoining the foreclosure prior to the sale.

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

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

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

         The court granted the bank's motion. It ruled that the claims in the plea concerning the bank's title to the mortgage are barred under RSA 479:25, II because Dowgiert failed to bring them prior to the foreclosure sale. The court also ruled that, because Dowgiert did not bring his claim about the foreclosure notice "within a year and a day of the recording of the foreclosure deed, " it is barred under RSA 479:25, II-a. Dowgiert appealed.

         In reviewing the court's grant of the motion to dismiss, our standard of review is whether the allegations in Dowgiert's pleadings are reasonably susceptible of a construction that would permit recovery. See Plaisted v. LaBrie, 165 N.H. 194, 195 (2013). We assume that Dowgiert's pleadings are true and construe all reasonable inferences in the light most favorable to him. See id. We then engage in a threshold inquiry that tests the facts in the pleadings against the applicable law, and if the allegations constitute a basis for legal relief, we must hold that it was improper to grant the motion to dismiss. Id.

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

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

         The statute establishes a timeframe for the mortgagor to exercise his right to petition the superior court. The mortgagor must "institute such petition . . . prior to sale." Id. (emphasis added). Failure to do so "shall thereafter bar any action or right of action of the mortgagor based on the validity of the foreclosure." Id. (emphasis added). A separate time limitation applies to any challenge to the foreclosure notice. RSA 479:25, II-a states that "[n]o claim challenging the form of notice, manner of giving notice, or the conduct of the foreclosure sale shall be brought by the mortgagor . ...


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