justia.com | July 31, 2015
|Court: New Hampshire Supreme Court Docket: 2014-018
||Opinion Date: July 24, 2015
|Areas of Law: Real Estate & Property Law
Plaintiff Jillian Bergeron appeals a Superior Court order lifting a preliminary injunction on the foreclosure sale of her home and dismissing her case. Plaintiff executed a promissory note in favor of Drew Mortgage Associates, Inc. The Mortgage identified Drew Mortgage as the lender, plaintiff as the mortgagor, and Mortgage Electronic Registration Systems, Inc. (MERS) as the mortgagee. MERS later assigned the Mortgage to defendant New York Community Bank. The Note was also apparently transferred a number of times, because an allonge with a number of endorsements appears in the record. Defendant notified plaintiff of the foreclosure sale. On or about April 15, 2013, plaintiff filed a verified petition to enjoin the foreclosure sale and for an ex parte restraining order. She admitted falling behind on her payments, but challenged defendant’s authority to foreclose because “[i]t appears that at the very least, [the defendant] does not own the note.” Following denial of plaintiff’s loan modification application, defendant requested that the court lift the injunction and allow the foreclosure sale to proceed. The court did so, ruling, in relevant part, that defendant “has the authority to foreclose whether it actually holds the note or is merely acting as an agent for the entity which holds the note.” On appeal, plaintiff argued that the trial court erred in: (1) ruling that the entity foreclosing a mortgage need not hold both the mortgage and the note; (2) finding that plaintiff clearly intended that the Note and Mortgage be held by separate entities; and (3) failing to make the necessary finding that defendant was entitled to enforce the Note. These specific arguments, however, were largely subsumed within plaintiff’s more general contention that because “the mortgage and note are not severable,” a mortgagee must be entitled to enforce the promissory note in order to conduct a foreclosure sale pursuant to RSA chapter 479. The Supreme Court affirmed. Because the Mortgage evidenced an agency relationship between the lender (Drew Mortgage) and the mortgagee (MERS), and the Mortgage contemplated that both the lender and MERS could assign their interests, and plaintiff did not challenge the validity of the assignment of either the Note or the Mortgage, the Court concluded that defendant has the authority, as agent of the noteholder, to exercise the power of sale. Therefore, the Court held that the trial court did not err in lifting the injunction and dismissing the action. The Court did not address whether defendant could foreclose if the agency relationship was irregular or legitimately challenged by the plaintiff. We also need not decide whether, absent an agency relationship between the noteholder and the mortgage holder, a party who holds only the mortgage has the authority to foreclose.
Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager
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