105 A.3d 1057
N.H.2014Background
- Decedent Muriel R. Mills owned Manchester property subject to a 2006 home equity conversion mortgage with a statutory power of sale; mortgage barred personal liability and limited enforcement to sale of the property.
- Petitioner Walter Hebert was appointed executor on March 5, 2012 and notified the mortgagee (Financial Freedom) of the death, requesting payoff and assignment info.
- Financial Freedom did not file a probate claim under RSA chapter 556; later informed the estate it intended to foreclose under the mortgage power of sale and accelerated the note.
- On November 27, 2012 the mortgage was assigned to respondent Fannie Mae (Federal National Mortgage Association) and recorded.
- Petitioner sued in May 2013 to quiet title, arguing the mortgagee abandoned its interest by failing to present a claim under RSA chapter 556; respondent moved to dismiss and the trial court granted dismissal.
Issues
| Issue | Plaintiff's Argument (Hebert) | Defendant's Argument (Fannie Mae) | Held |
|---|---|---|---|
| Whether probate filing deadlines in RSA chapter 556 bar foreclosure by power of sale | Mortgages are not exempt from RSA 556; failure to present a claim or sue within statutory deadlines abandoned the mortgage interest | RSA 556 deadlines govern actions/suits against an administrator, not nonjudicial foreclosure under a mortgagee's statutory power of sale | Court held RSA 556 does not bar a mortgagee from enforcing a power of sale; nonjudicial foreclosure is not an "action" under RSA chapter 556 |
| Whether a decree pro confesso / default should be entered against Financial Freedom because it did not appear | Financial Freedom failed to appear/answer in the quiet title action, so a default and pro confesso should be entered | Financial Freedom was not a party at filing because it had assigned the mortgage; respondent (assignee) appeared and asserted its recorded interest | Court rejected default argument; assignee was proper party and appearance/motion to dismiss were appropriate |
Key Cases Cited
- Plaisted v. LaBrie, 165 A.3d 194 (N.H. 2013) (dismissal standard: pleadings must be reasonably susceptible to a construction permitting recovery)
- Wells Fargo Bank v. Schultz, 164 A.3d 608 (N.H. 2013) (statutory interpretation reviewed de novo; examine plain meaning)
- Bolduc v. Beal Bank, SSB, 994 F. Supp. 82 (D.N.H. 1998) (power of sale mortgages permit foreclosure without court proceedings)
- Porter v. Coco, 154 A.3d 353 (N.H. 2006) (necessary parties are those with an interest in the subject matter)
- Skrizowski v. Chandler, 133 A.3d 502 (N.H. 1990) (deadline for creditors to present claims to an estate; potential time-bar of claims)
- Stewart v. Farrel, 131 A.3d 458 (N.H. 1989) (RSA chapter 556 sets filing deadlines for claims against estates)