The Bank of New York Mellon, as Trustee v. Eugene Dowgiert

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 2015-0485
THE BANK OF NEW YORK MELLON, AS TRUSTEE
v.
EUGENE DOWGIERT
Argued: March 8, 2016
Opinion Issued: June 28, 2016
Haughey, Philpot & Laurent, P.A., of Laconia (Christopher J. Fischer on
the brief and orally), for the plaintiff.
The Law Offices of Martin & Hipple, PLLC, of Concord (Stephen T. Martin
on the brief and orally), for the defendant.
HICKS, J. The defendant, Eugene Dowgiert, appeals an order of the
Superior Court (Delker, J.) dismissing his plea of title, which he filed in
response to a possessory action brought in the circuit court by the plaintiff, the
Bank of New York Mellon (bank), as Trustee. We consider whether the court
erred in ruling that the plea is time-barred under RSA 479:25, II (Supp. 2015)
and RSA 479:25, II-a (2013). We hold that it did not, and, accordingly, affirm.
Dowgiert’s pleadings include, or the record supports, the following facts.
In 2005, Dowgiert refinanced a mortgage loan on his home with Decision One
Mortgage Company, LLC (Decision One). Dowgiert gave a promissory note to
Decision One and a mortgage to Mortgage Electronic Registration Systems
(MERS) as nominee of Decision One. In 2007, Decision One ceased to exist. In
2011, MERS assigned the mortgage to the bank. Dowgiert defaulted on the
mortgage, and, on or around September 3, 2013, the bank foreclosed on the
mortgage and purchased Dowgiert’s property at the foreclosure sale. On or
around September 25, 2013, the bank filed the foreclosure deed with the
Rockingham County Registry of Deeds. During this time, Dowgiert was
incarcerated and did not receive notice of the foreclosure. Accordingly, he
failed to petition the superior court for an order enjoining the foreclosure prior
to the sale.
In July 2014, the bank filed a possessory action in the circuit court to
remove Dowgiert from the property. Dowgiert, as a self-represented party, filed a
plea of title asserting that the bank did not have the authority to foreclose on the
mortgage and that, therefore, the foreclosure was invalid. Pursuant to RSA
540:17 (2007), the court ordered Dowgiert to file his plea in the superior court
“by the first Tuesday in October, 2014.” From the record, it appears that
Dowgiert failed to do so. More than a week after the deadline, on October 16, the
bank moved in the circuit court for judgment in its favor. Dowgiert failed to
object, and the court granted the motion.
More than a month later, on November 21, Dowgiert, represented by
counsel, moved in the circuit court for an order vacating the judgment and
allowing him two weeks to file his plea of title in the superior court. The court
held a hearing on the motion and determined that, “[u]nder a totality of the
circumstances, and after consideration of all arguments,” the motion should be
granted. The court ordered Dowgiert to file his plea in the superior court by
the “first Tuesday in May 2015.”
Dowgiert filed his plea of title in the superior court on April 24, 2015. In
it, he alleged that the bank did not have the authority to foreclose on his
property. Specifically, he asserted that the bank had lacked legal title to the
mortgage because: (1) “Decision One ceased to exist prior to the assignment
and purported negotiation of the Note”; (2) “the Mortgage assignment was three
years late, thereby not conforming with” certain deadlines in the Pooling and
Service Agreement (PSA); (3) the “Note [was not] transferred through [the]
specific assignment chain” required by the PSA; and (4) there was no evidence
that the bank possessed the “original ‘blue-ink’ note at the time of foreclosure.”
Dowgiert also alleged that he had not received notice of the foreclosure because
he had been incarcerated; thus, “he could not [have filed] a petition to enjoin
the [foreclosure] prior to the [sale].” When Dowgiert filed his plea in the
superior court, nearly one year and eight months had elapsed since the bank
purchased the property at the foreclosure sale, and nearly one year and seven
months had elapsed since the bank recorded the foreclosure deed. The bank
moved to dismiss Dowgiert’s plea, arguing that it was time-barred.
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The court granted the bank’s motion. It ruled that the claims in the plea
concerning the bank’s title to the mortgage are barred under RSA 479:25, II
because Dowgiert failed to bring them prior to the foreclosure sale. The court
also ruled that, because Dowgiert did not bring his claim about the foreclosure
notice “within a year and a day of the recording of the foreclosure deed,” it is
barred under RSA 479:25, II-a. Dowgiert appealed.
In reviewing the court’s grant of the motion to dismiss, our standard of
review is whether the allegations in Dowgiert’s pleadings are reasonably
susceptible of a construction that would permit recovery. See Plaisted v.
LaBrie, 165 N.H. 194, 195 (2013). We assume that Dowgiert’s pleadings are
true and construe all reasonable inferences in the light most favorable to him.
See id. We then engage in a threshold inquiry that tests the facts in the
pleadings against the applicable law, and if the allegations constitute a basis
for legal relief, we must hold that it was improper to grant the motion to
dismiss. Id.
To resolve the issues before us, we must engage in statutory
interpretation. The interpretation of a statute is a question of law, which we
review de novo. Favazza v. Braley, 160 N.H. 349, 351 (2010). In matters of
statutory interpretation, we are the final arbiters of the legislature’s intent as
expressed in the words of the statute considered as a whole. Id. In construing
its meaning, we first examine the language found in the statute, and when
possible, we ascribe the plain and ordinary meanings to the words used. Id.
We interpret legislative intent from the statute as written and will not consider
what the legislature might have said or add language that the legislature did
not see fit to include. Strike Four v. Nissan N. Am., 164 N.H. 729, 735 (2013).
We interpret statutory provisions in the context of the overall statutory scheme.
Favazza, 160 N.H. at 351. Absent an ambiguity, we will not look beyond the
language of the statute to discern legislative intent. See New Hampshire Health
Care Assoc. v. Governor, 161 N.H. 378, 385 (2011).
Dowgiert’s principal argument is that RSA 479:25, II and II-a do not
apply to his plea of title. RSA 479:25 sets forth the procedures for mortgage
foreclosure through the power of sale. See RSA 479:25 (Supp. 2015). Those
procedures require, among other things, that the foreclosing party give notice
of the foreclosure to the mortgagor. See RSA 479:25, I. RSA 479:25, II
requires that notice be “served upon the mortgagor or sent by registered or
certified mail to his last known address . . . at least 25 days before the
[foreclosure] sale.” RSA 479:25, II. The statute also requires that, in the
notice, the foreclosing party advise the mortgagor of his right to “petition the
superior court . . . to enjoin the scheduled foreclosure sale.” Id. (quotation
omitted).
The statute establishes a timeframe for the mortgagor to exercise his
right to petition the superior court. The mortgagor must “institute such
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petition . . . prior to sale.” Id. (emphasis added). Failure to do so “shall
thereafter bar any action or right of action of the mortgagor based on the
validity of the foreclosure.” Id. (emphasis added). A separate time limitation
applies to any challenge to the foreclosure notice. RSA 479:25, II-a states that
“[n]o claim challenging the form of notice, manner of giving notice, or the
conduct of the foreclosure sale shall be brought by the mortgagor . . . after one
year and one day from the date of the recording of the foreclosure deed for such
sale.” RSA 479:25, II-a (emphases added).
Dowgiert argues that his plea is not “an action, right of action, or claim
— all of which would be barred by” RSA 479:25, II or II-a. Instead, he
contends, the plea is a “defense,” and, as such, the statutory limitations
periods do not apply. Dowgiert further argues that, generally, statutes of
limitation or repose, such as RSA 479:25, II and II-a, do not apply to defenses.
Thus, Dowgiert asserts, the trial court “erred by dismissing [his] Plea of Title.”
We hold that Dowgiert’s plea is an “action or right of action,” RSA
479:25, II, not a defense, and, therefore, RSA 479:25, II applies to the plea to
the extent that, in the plea, Dowgiert challenges the bank’s authority to
foreclose. RSA 540:17 and :18 (2007) set forth the procedures that the circuit
court must follow when a defendant raises an issue of title in a plaintiff’s
circuit court action. Friedline v. Roe, 166 N.H. 264, 266 (2014). RSA 540:17
specifically addresses the plea of title:
If the defendant shall plead a plea which may bring in question the
title to the demanded premises he shall forthwith recognize to the
plaintiff, with sufficient sureties, in such sum as the court shall
order, to enter his action in the superior court for the county at the
next return day, and to prosecute his action in said court, and to
pay all rent then due or which shall become due pending the
action, and the damages and costs which may be awarded against
him.
RSA 540:17 (emphases added). Even though the statute sets forth the
procedure by which a plea of title may be filed in response to a circuit court
action, the legislature did not characterize the plea as a defense. The
legislature instead characterized it as a separate “action” that the defendant
must “enter . . . and . . . prosecute” in the superior court. Id.; see Fed. Home
Loan Mortg. Corp. v. Willette, 168 N.H. ___, ___ (decided Jan. 12, 2016) (“RSA
540:17 . . . places the burden to institute the action in the superior court on
the defendant.” (quotation omitted)). Dowgiert’s plea is therefore an action, not
a defense. Because, in the plea, Dowgiert challenges the bank’s authority to
foreclose, RSA 479:25, II applies; the statute bars a mortgagor from bringing,
after the foreclosure sale, “any action or right of action . . . based on the
validity of the foreclosure.”
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We further hold that RSA 479:25, II-a applies to the contention in
Dowgiert’s plea that the foreclosure notice was inadequate because he did not
receive it while he was incarcerated. This contention is a “claim challenging
the form of notice” or the “manner of giving notice” under the statute, and,
thus, it applies. RSA 479:25, II-a.
Dowgiert filed his plea in the superior court in April 2015 — after the
September 2013 foreclosure sale, and more than one year and one day after
the bank recorded the foreclosure deed in September 2013. Because Dowgiert
failed to file his plea within either of the statutory timeframes set forth in RSA
479:25, II and II-a, the trial court correctly ruled that the plea is time-barred.
To conclude otherwise would permit an “end-run” around the statutes —
a result that the legislature could not have intended. See Appeal of Town of
Salem, 168 N.H. ___, ___ (decided Feb. 18, 2016) (interpreting a statute to
preclude a common law right of action that would have otherwise allowed
parties to “create an end-run around [a] legislative grant of exclusive
enforcement jurisdiction”). Under Dowgiert’s interpretation, even a mortgagor
with notice could wait until well after the sale to challenge the foreclosure in an
action filed in response to a possessory action. The mortgagor could also wait
to challenge the foreclosure notice in that same action even if more than a year
and a day had passed since the recording of the foreclosure deed. Given that
the statutes unambiguously set forth timeframes after which these types of
“action[s]” and “claim[s]” are barred, the legislature could not have intended for
a mortgagor to elude the timeframes merely by characterizing the same types of
actions and claims as “defenses” against the possessory action of the owner
after foreclosure. RSA 479:25, II, II-a.
Dowgiert next argues that, even if the statutory time limitations apply, he
complied with RSA 479:25, II-a with respect to his notice claim because he
raised that claim in the plea of title that he filed in the circuit court “more than
one month before the limitations period ran.” According to Dowgiert, “filing a
Plea of Title in the [circuit court] before [RSA 479:25, II-a’s] limitation[s] period
expires is sufficient to preserve a defendant’s right to defend a possessory
action . . . even if the possessory action is not transferred to Superior Court
until after [RSA 479:25, II-a’s] limitations period expires.”
We disagree. Generally, a limitations period does not toll until a party
files his action in a court of competent jurisdiction. See Jackson v. Astrue, 506
F.3d 1349, 1358 (11th Cir. 2007) (citing several cases in which the court has
held that “filing in a court without competent jurisdiction did not toll the

We reject Dowgiert’s argument that his plea was not barred under RSA 479:25, II because he did
not receive notice of the foreclosure while he was incarcerated. This argument is a restatement of
Dowgiert’s claim that the foreclosure notice was inadequate, which, we conclude, is barred under
RSA 479:25, II-a.
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[relevant] statute of limitations” (quotation omitted)). Here, the circuit court is
not the court of competent jurisdiction over Dowgiert’s plea because “it does
not have jurisdiction to resolve issues of title,” which issues “must be resolved
in superior court.” Friedline, 166 N.H. at 266, 267 (quotation omitted). Thus,
RSA 479:25, II-a could not have been tolled until Dowgiert filed his plea in the
superior court, which he did in April 2015 — months after the limitations
period had expired upon the foreclosure sale.
Dowgiert asserts that, “because filing the Plea of Title in Superior Court[]
acts to transfer the possessory action to Superior Court as if originally brought
there, the initial filing date of the Plea of Title in the [circuit court] should
control.” This assertion mischaracterizes the relevant procedural law. When a
defendant raises a plea of title and “files such recognizance as ordered by the
[circuit] court, the [plaintiff’s] possessory action in the [circuit court] is stayed.”
Willette, 168 N.H. at ___ (quotation omitted). And, “[i]f the defendant fails to
enter [his] action in the superior court, then the possessory proceedings in the
[circuit court] may resume.” Id. (quotation omitted). “RSA 540:17 . . . does not
require the [circuit court] to transfer or otherwise enter the action in superior
court but, rather, places the burden to institute the action in the superior
court on the defendant.” Id. (quotations and ellipsis omitted) (emphasis
added). Thus, when Dowgiert filed his plea of title in the superior court, the
bank’s possessory action remained in the circuit court. The possessory action
was not, as Dowgiert contends, transferred to the superior court.
Dowgiert also misinterprets the phrase “as if [the action] were originally
begun there.” RSA 540:18 states that, “[a]fter the filing of such plea and the
entry of such recognizance no further proceedings shall be had before the
[circuit] court, but the action may be entered and prosecuted in the superior
court in the same manner as if it were originally begun there.” Id. (emphases
added). Implicit in Dowgiert’s argument is the notion that “action” in RSA
540:18 refers to the same “action” as that in RSA 540:17 — the plea of title.
However, the plain language of RSA 540:18 shows that “action” refers
instead to the plaintiff’s possessory action. RSA 540:18 contains three
provisions relating to the filing of title claims. The first is the “filing of such
plea and the entry of such recognizance” in the superior court. RSA 540:18.
Then, “[a]fter the filing” of the plea of title, “no further proceedings shall be had
before the [circuit court].” Id. Finally, RSA 540:18 states that, even though the
circuit court proceedings have halted, “the action may be entered and
prosecuted in the superior court.” Id. (emphasis added). Because, under the
statute, the defendant must have already filed the plea of title in the superior
court before the opportunity to enter and prosecute the “action” arises, the
“action” cannot be the same as the “plea.” Rather, it must refer to the
possessory action. Id. Given the statutory framework, we conclude that the
legislature could not have intended for “action” to refer to the defendant’s plea
of title.
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Moreover, the provisions of RSA 540:18 must be read in conjunction with
the provisions of RSA 540:17. Under RSA 540:17, the “action” must be entered
and prosecuted in the superior court after the defendant “plead[s] a plea which
may bring in question the title to the demanded premises” in the circuit court.
RSA 540:17. In contrast, under RSA 540:18, the “action may be entered and
prosecuted . . . in the same manner as if it were originally begun” in the
superior court. RSA 540:18 (emphasis added); cf. Appeal of Coos County
Comm’rs, 166 N.H. 379, 386 (2014) (“The general rule of statutory construction
is that the word ‘may’ makes enforcement of a statute permissive and that the
word ‘shall’ requires mandatory enforcement.” (quotation omitted)). Because
filing the “action” in the superior court under one statute is mandatory and
filing the “action” under the other statute is not, the statutes must refer to
different proceedings.
Moreover, RSA 540:18 states that, after the defendant files the plea and
enters recognizance, “no further proceedings shall be had before the [circuit
court].” RSA 540:18. Once proceedings have been stayed in the circuit court,
one of two things could occur concerning the possessory action. Either the
possessory action could remain stayed in the circuit court pending the outcome
of the superior court’s adjudication of the plea of title, see Willette, 168 N.H. at
___, or the possessory action “may be entered and prosecuted . . . in the same
manner as if it were originally begun” in the superior court, RSA 540:18, and
the superior court could consolidate and adjudicate the plea and the
possessory action in one proceeding. Cf. Gibson v. LaClair, 135 N.H. 129, 130
(1991) (reversing on other grounds an order of the superior court “granting a
writ of possession in favor of the plaintiff” after the plaintiff’s “underlying
eviction action” was “removed to the superior court when the defendant entered
a plea of title”). Because, under the statutory scheme, the possessory action
may be adjudicated in either the superior or the circuit court, the “action” that
“may be entered and prosecuted in the superior court” under RSA 540:18 must
be the possessory action. RSA 540:18 (emphasis added).
Accordingly, we reject Dowgiert’s argument that “the initial filing date of
the Plea of Title in the [circuit court] should control.”
Because Dowgiert failed to file his plea of title in the superior court
within the timeframes set forth in RSA 479:25, II and II-a, the plea is not
reasonably susceptible of a construction that would permit recovery. See
Plaisted, 165 N.H. at 195. We therefore affirm the trial court’s dismissal.
Affirmed.
DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.
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