MAHER M. MAHMOUD
TOWN OF THORNTON & a.
Submitted: June 9, 2016
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.
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.
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."
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.
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.
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.
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.
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