Argued: January 10, 2019
Hillsborough-southern judicial district
Smith-Weiss Shepard, P.C., of Nashua (Robert M. Shepard and
Tanya L. Spony on the brief, and Mr. Shepard orally), for the
Law, PLLC, of Portsmouth (Jonathan M. Flagg on the brief and
orally), for the defendant.
plaintiff, Wayne Sabato, appeals, and the defendant, Federal
National Mortgage Association (FNMA), cross-appeals, orders
of the Superior Court (Temple, J.) in this action
brought by the plaintiff to establish his homestead right in
the subject property. We affirm.
following facts were recited by the trial court in its
orders. In 2001, the plaintiff's wife, Cheryl A. Sabato,
acquired the subject property in Pelham (the property). She
took title by a warranty deed that acknowledged she was a
"married person," and granted a purchase money
mortgage to a party not identified in the record (the
original mortgage), which the plaintiff did not sign. Both
Cheryl and the plaintiff have resided at the property since
January 2002, Cheryl refinanced the original mortgage,
executing a new mortgage securing the amount of $173, 250 to
HomeVest Mortgage Corporation (the first mortgage). The
plaintiff did not sign the first mortgage, which was
immediately assigned to CitiMortgage, Inc. The original
mortgage was discharged approximately four months later and
is not at issue in this appeal. All of the foregoing
transactions were recorded in the registry of deeds.
2005, Cheryl granted a mortgage to National City Bank to
secure a home equity line of credit with a maximum principal
amount of $65, 000 (the second mortgage). Both Cheryl and the
plaintiff signed the second mortgage. National City Bank was
acquired by PNC Bank National Association, which assigned the
second mortgage to Situs Investments, LLC (Situs) in 2013.
Meanwhile, in 2011, the first mortgage was assigned by
CitiMortgage, Inc. to FNMA.
2014, Situs foreclosed its mortgage, and purchased the
property at the foreclosure auction for $64, 872.01, taking
title subject to the first mortgage.Situs then sold its interest
in the property to FNMA. Accordingly, FNMA now holds title to
the property as well as the first mortgage thereon.
2016, FNMA notified the Sabatos that they might be evicted
from the property. The plaintiff then filed the instant
action seeking to establish his homestead right in the
property. Both parties moved for summary judgment. The
plaintiff contended that foreclosure of the second mortgage
did not affect his homestead right because he had not waived
that right in the first mortgage. FNMA argued that, because
the plaintiff waived his homestead interest in the second
mortgage, he could not now assert any homestead right.
court denied both motions, concluding that the summary
judgment record was insufficient to decide the issues before
it as a matter of law. Both parties moved for
reconsideration, supplying additional evidence.
upon the new evidence and concessions by FNMA at the motions
hearing, the trial court denied FNMA's motion but granted
the plaintiff's motion in part. The court concluded that
"prior to the execution of the second mortgage, the
plaintiff had an unencumbered homestead right." The
court also concluded that, "[u]nder settled New
Hampshire law, the plaintiff's signature was sufficient
to waive his homestead right relative to the second