145 A.3d 138
N.H.2016Background
- In 2005 Dowgiert refinanced his home; Decision One issued the note and MERS held the mortgage as nominee. Decision One ceased to exist in 2007. MERS assigned the mortgage to Bank of New York Mellon (the bank) in 2011.
- Dowgiert defaulted; the bank foreclosed and purchased the property at a sale around September 3, 2013, and recorded the foreclosure deed on or about September 25, 2013. Dowgiert was incarcerated and did not receive notice of the foreclosure.
- The bank filed a possessory action in circuit court in July 2014 to remove Dowgiert. He filed a plea of title in circuit court but missed the court-ordered deadline to prosecute that plea in superior court; the circuit court later vacated judgment and ordered him to file in superior court by May 2015.
- Dowgiert filed his plea of title in superior court on April 24, 2015 (about 19 months after the foreclosure sale and >1 year + 1 day after recording the deed), alleging the bank lacked authority to foreclose (chain-of-title/PSA nonconformity and lack of original note) and that he never received notice while incarcerated.
- The bank moved to dismiss as time-barred under RSA 479:25, II (bar action based on validity of foreclosure if not filed prior to sale) and RSA 479:25, II-a (bar claims challenging notice or manner of sale after one year and one day from recording). The superior court granted dismissal; Dowgiert appealed.
Issues
| Issue | Bank's Argument | Dowgiert's Argument | Held |
|---|---|---|---|
| Whether Dowgiert's plea of title is subject to RSA 479:25, II (bar on actions challenging foreclosure validity if not brought prior to sale) | Plea is an "action or right of action" challenging foreclosure validity and is barred because filed after the sale | Plea is a "defense," not an action; statutes of limitation/repose do not bar defenses | Court held the plea is an "action," not a mere defense, so RSA 479:25, II applies and bars the claim |
| Whether Dowgiert's notice challenge is subject to RSA 479:25, II-a (1 year + 1 day from recording) | Claim challenges form/manner of notice and is barred because filed more than one year + one day after recording | He preserved the notice claim by filing the plea in circuit court before the limitations period expired | Court held the notice claim is a "claim challenging the form or manner of notice," so II-a applies and is barred because superior-court filing was too late |
| Whether filing the plea in circuit court before the statute expired tolled or preserved the claim | Statute tolling requires filing in a court of competent jurisdiction; circuit court lacks authority over title issues so filing there does not toll the limitation | Filing plea in circuit court should preserve rights because the plea operates to transfer/act "as if originally begun" in superior court | Court held circuit court is not a court of competent jurisdiction for title claims; tolling did not occur and the initial circuit filing did not preserve the limitations period |
| Whether RSA 540:17–18 mean the circuit-court filing date controls for limitations purposes | Statutes require the defendant to enter and prosecute the separate action in superior court (plea is an action); RSA 540:18's "as if originally begun there" refers to the plaintiff's possessory action, not the defendant's plea | The phrase "as if originally begun there" means the defendant's initial circuit filing should control the timing | Court interpreted RSA 540:17–18 together and concluded the statutes refer to different "actions"; the defendant must file the separate superior action to preserve claims |
Key Cases Cited
- Plaisted v. LaBrie, 165 N.H. 194 (2013) (standard for reviewing motions to dismiss and construing pleadings in favor of pleader)
- Favazza v. Braley, 160 N.H. 349 (2010) (statutory interpretation principles; plain meaning and legislative intent)
- Strike Four v. Nissan N. Am., 164 N.H. 729 (2013) (courts will not add language the legislature omitted)
- New Hampshire Health Care Assoc. v. Governor, 161 N.H. 378 (2011) (avoiding consideration beyond statutory language absent ambiguity)
- Friedline v. Roe, 166 N.H. 264 (2014) (circuit court lacks jurisdiction to resolve title issues; they must be resolved in superior court)
- Gibson v. LaClair, 135 N.H. 129 (1991) (procedural context for removal/entry of possessory actions when plea of title filed)
- Jackson v. Astrue, 506 F.3d 1349 (11th Cir. 2007) (filing in a court without competent jurisdiction does not toll a statute of limitations)
- Appeal of Coos County Comm'rs, 166 N.H. 379 (2014) (distinguishing permissive "may" and mandatory "shall" in statutory construction)