Jillian Cohen Bergeron v. New York Community Bank
168 N.H. 63
| N.H. | 2015Background
- Plaintiff executed a 2006 promissory note for $176,250 and a mortgage with MERS named as mortgagee and nominee for lender DMA.
- Mortgage stated MERS held only legal title as nominee and could exercise lender rights, including foreclosure, on behalf of lender and successors.
- MERS later assigned the mortgage to the defendant, and the note was transferred multiple times, with an allonge showing endorsements.
- Plaintiff alleged defendant did not prove it owned the note and sought injunctions and loan-modification consideration.
- Trial court granted ex parte TRO and then a preliminary injunction, then lifted the injunction and allowed foreclosure to proceed.
- Court held the defendant, as agent of the noteholder, could foreclose, and affirmed the trial court’s lifting of the injunction and dismissal of the case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a foreclosure may be initiated by an agent of the noteholder under RSA 479:25 | Bergeron argues only the noteholder can foreclose; nominee relationship creates issue. | New Hampshire law permits an agent of the noteholder to foreclose. | Agency permissible; foreclose by agent upheld. |
| Whether the mortgage and note are severable for purposes of enforceability | Note and mortgage must be held by the same entity; severance unsupported. | Note/mortgage may be assigned separately; language permits future assignment. | Inseparability not required; agency can foreclose despite separate ownership. |
| Whether the mortgage language establishes an agency relationship between DMA and MERS | Nominee language does not show agency if MERS held merely title. | Mortgage language creates agency; MERS acts as nominee with power of sale. | Mortgage language establishes agency; MERS authorized to foreclose as lender’s agent. |
| Whether the trial court erred in lifting the injunction without determining the note’s valid assignment | Court failed to determine whether defendant held the note. | Agency finding suffices to foreclose; assignment validity not necessary for outcome. | Court’s implied agency finding sustainable; no remand needed. |
Key Cases Cited
- Southerin v. Mendum, 5 N.H. 420 (N.H. 1831) (note and mortgage thoughts tied to debt; mortgage passes with debt)
- Smith v. Moore, 11 N.H. 55 (N.H. 1840) (assignment of mortgage vests nothing without debt)
- Chase v. Ameriquest Mortgage Co., 155 N.H. 19 (N.H. 2007) (deference to trial court’s findings; law applied de novo)
- Dumont v. Town of Wolfeboro, 137 N.H. 1 (N.H. 1993) (interpretation of deeds/contracts from plain language)
- State v. Collyns, 166 N.H. 514 (N.H. 2014) (contract interpretation; parties’ intent from language absent ambiguity)
- Bouffard v. State Farm Fire & Cas. Co., 162 N.H. 305 (N.H. 2011) (agency relationship elements and evidence)
- Barabas v. Citimortgage, Inc., 975 N.E.2d 805 (Ind. 2012) (assignment of mortgage to current holder depends on mortgage as a whole)
- MetLife Home Loans v. Hansen, 286 P.3d 1150 (Kan. Ct. App. 2012) (agent foreclosing for noteholder permissible)