Case v. St. Mary's Bank
164 N.H. 649
N.H.2013Background
- Plaintiff Mark Case rented a third-floor Manchester apartment from Marcelin, who financed the purchase with two Bank mortgages.
- In December 2010, the Bank foreclosed one mortgage; bankruptcy stayed then, lifted January 2011, scheduling a second foreclosure for April 2011.
- January 25, 2011, a water pipe burst, causing a building flood; City shut off water and electricity.
- Plaintiff reported problems to Marcelin and Bank; Bank representative entered with permission of plaintiff to assess and repair.
- March 17, City notified uninhabitable conditions and revoked the Certificate of Compliance; Bank changed locks and boarded entrances.
- April 13, 2011, another foreclosure sale occurred; plaintiff has not resided there since January 25, 2011, and later accessed the unit to retrieve belongings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bank was a landlord under RSA 540-A:1, I | Bank was owner (title theory) or mortgagee in possession. | Bank was neither owner nor mortgagee in possession; not a landlord. | Bank not a landlord under RSA 540-A:1, I. |
| Whether Bank’s entry was privileged, constituting non-trespass | Bank entry violated rights because not landlord. | Bank entry privileged under mortgage agreement for repairs/maintenance. | Trespass claim dismissed; entry privileged under mortgage agreement. |
Key Cases Cited
- Lyman v. Hibbard, 18 N.H. 233 (1846) (mortgagee not owner until possession asserted; mortgagor remains owner for many purposes)
- Orr v. Hadley, 36 N.H. 575 (1858) (mortgagee's title limited; mortgagor remains owner subject to mortgagee's rights)
- Snyder v. New Hampshire Savings Bank, 134 N.H. 32 (1991) (owner, in context, encompasses broad interests; legislative history consulted)
- Blackstone Valley National Bank v. Hanson, 445 N.E.2d 1093 (Mass. Ct. App. 1983) (mortgagee in possession test; visits for damage control insufficient for possession)
- Town of Atkinson v. Malborn Realty Trust, 164 N.H. 62 (2012) (statutory interpretation; plain meaning; legislative intent)
- Hill v. Dobrowolski, 125 N.H. 572 (1984) (methods of statutory interpretation; abrogation of common law requires clear expression)
- Kolozetski v. City of Concord, 159 N.H. 689 (2010) (mortgagee's title vs. owner's status under statutory scheme)