Argued: March 8, 2016
Haughey, Philpot & Laurent, P.A., of Laconia (Christopher
J. Fischer on the brief and orally), for the plaintiff.
Law Offices of Martin & Hipple, PLLC, of Concord (Stephen
T. Martin on the brief and orally), for the defendant.
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.
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.
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.
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."
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.
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.
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.
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
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).
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 . ...