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

Summary

The Supreme Court of New Hampshire held that a mortgagor’s plea of title challenging a foreclosure is an action rather than a defense and is subject to the time limits in RSA 479:25, II. The court also held that a challenge to the foreclosure notice was barred under RSA 479:25, II-a because it was filed more than one year and one day after recording of the foreclosure deed. The court affirmed dismissal of Eugene Dowgiert’s plea of title.

Holdings

1. A plea of title filed under RSA 540:17 is a separate action or right of action, not merely a defense, and RSA 479:25, II bars a mortgagor from bringing an action based on the validity of the foreclosure after the foreclosure sale.
2. A contention that the mortgagor did not receive foreclosure notice challenges the form or manner of giving notice and is barred if not brought within one year and one day after recording of the foreclosure deed.
3. Filing a plea of title in the circuit court does not toll RSA 479:25, II-a because the circuit court lacks jurisdiction to resolve title issues; the limitation period was not tolled until the plea was filed in superior court.

Questions Presented

1. Whether a plea of title challenging the foreclosing bank's authority to foreclose is an action or right of action subject to the pre-sale bar in RSA 479:25, II, rather than a defense exempt from the statutory limitation.
2. Whether a plea challenging the form or manner of foreclosure notice is subject to RSA 479:25, II-a's one-year-and-one-day limitation period.
3. Whether filing a plea of title in the circuit court tolls or preserves the statutory limitation period before the plea is filed in the superior court.
4. Whether the superior court properly dismissed Dowgiert's plea as time-barred.

Disposition

affirmed