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Mahmoud v. Town of Thornton

Supreme Court of New Hampshire

September 20, 2016

MAHER M. MAHMOUD
v.
TOWN OF THORNTON & a.

          Submitted: June 9, 2016

         Grafton

          Maher M. Mahmoud, self-represented party, by brief.

          Mitchell Municipal Group, P.A., of Laconia (Steven M. Whitley on the brief), for defendant Town of Thornton.

          Wadleigh, Starr & Peters, P.L.L.C., of Manchester (Robert E. Murphy, Jr. on the brief), for defendants Winwin Properties, LLC, Gary T. Shulman, Anita S. Shulman, Aaron Katz, and Jeremy Gavin.

          Primmer Piper Eggleston & Cramer PC, of Manchester (Thomas J. Pappas on the memorandum of law), for defendant Bank of New York, as Trustee for the Certificate Holders CWABS, Inc. Asset-Backed Certificates, Series 2006-15.

          CONBOY, J.

         The plaintiff, Maher M. Mahmoud, appeals an order of the Superior Court (MacLeod, J.) granting the summary judgment motion filed by defendants Winwin Properties, LLC (Winwin), Gary T. Shulman, Anita S. Shulman, Aaron Katz, and Jeremy Gavin, and denying the plaintiff's cross-motion for summary judgment. We affirm.

         The relevant facts follow. In 2004, the plaintiff acquired title to an approximately 17-acre parcel of land in Thornton. In April 2005, the plaintiff received subdivision approval from the Thornton Planning Board to create Lot 1, a 1.06-acre parcel; he recorded the subdivision as Plan 11808 at the Grafton County Registry of Deeds (registry of deeds). In July 2006, the plaintiff mortgaged Lot 1 to Mortgage Electronic Registration Systems, Inc. (MERS) by mortgage deed, recorded in the registry of deeds. The mortgage deed described the property as Lot 1 as depicted on Plan 11808. The mortgage deed further described the property:

TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property. All replacements and additions shall also be covered by this Security Instrument. All of the foregoing is referred to in this Security Instrument as the "Property."

         Thereafter, the plaintiff received approval from the Thornton Planning Board to further subdivide the approximately 17-acre parcel into a total of eight lots; he recorded the subdivision as Plan 12600 at the registry of deeds in December 2006. As part of this subdivision approval, the southerly boundary of Lot 1 was relocated. Plan 12600 shows both the original Lot 1 lot line and the new southerly lot line, and shows Lot 1 as consisting of 2.40 acres.

         The plaintiff subsequently defaulted on his loan, and MERS foreclosed on Lot 1. MERS conveyed Lot 1, pursuant to a foreclosure deed under power of sale dated March 2008, to defendant Bank of New York, as Trustee for the Certificate Holders CWABS, Inc. Asset-Backed Certificates, Series 2006-15 (Bank of New York). In June 2008, the Bank of New York conveyed Lot 1 to Winwin by quitclaim deed. The deed from the Bank of New York to Winwin included the same description as that contained in the 2006 mortgage deed, with the additional phrase, "[s]ubject to any and all matters, including setbacks if any, as shown on Plan No. 11808 and Plan No. 12600 recorded in [the registry of deeds]." Winwin conveyed the property in May 2009 to defendants Gary and Anita Shulman, and the Shulmans conveyed the property in April 2014 to the current owners of Lot 1, defendants Aaron Katz and Jeremy Gavin.

         In 2015, the plaintiff sued the defendants, asserting several claims relating to the size of Lot 1. Winwin moved for summary judgment on the plaintiff's petition to quiet title to Lot 1, asserting that it had previously held record title to the lot, which included the approximately 1.34 acres added to Lot 1 by the lot line adjustment (the disputed land), because the description of the property in the mortgage deed included any additions to the land. The plaintiff cross-moved for summary judgment, asserting that the foreclosure sale and mortgage deed were invalid, and that therefore he owns record title to Lot 1, including the additional disputed land. The trial court granted Winwin's motion, finding that because the 2006 mortgage deed included any additions to the land, "MERS obtained and could transfer the approximately 1.34 acres added to Lot 1 by the lot line adjustment reflected in Plan 12600." The trial court subsequently denied the plaintiff's motion for reconsideration, and this appeal followed.

         "In reviewing the trial court's rulings on cross-motions for summary judgment, we consider the evidence in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, we determine whether the moving party is entitled to judgment as a matter of law." Bovaird v. N.H. Dep't of Admin. Servs., 166 N.H. 755, 758 (2014) (quotation omitted). "If our review of that evidence discloses no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law, then we will affirm the grant of summary judgment." Id. (quotation omitted). "We review the trial court's application of the law to the facts de novo." Id. (quotation omitted).

         "A petition to quiet title quiets title as against the world with respect to the land at issue." Porter v. Coco, 154 N.H. 353, 357 (2006). "[T]he burden is on the [petitioner] to prove good title as against all other parties whose rights may be affected by the court's decree." Id. (quotation, brackets, and ellipses omitted). The interpretation of a deed in a dispute to quiet title is a question of law, which we review de novo. See Greenan v. Lobban, 143 N.H. 18, 21 (1998). We will uphold the trial court's determination in a quiet ...


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