Maroun v. Deutsche Bank Nat'l Trust Co.

• Citation: 109 A.3d 203,167 N.H. 220
• Decision Date: 30 December 2014
• Docket Number: No. 2014–024,2014–024
• Parties: George MAROUN, Sr. & a. v. DEUTSCHE BANK NATIONAL TRUST COMPANY
• Court: Supreme Court of New Hampshire

167 N.H. 220

109 A.3d 203

George MAROUN, Sr. & a.

v.DEUTSCHE BANK NATIONAL TRUST COMPANY

No. 2014–024

Supreme Court of New Hampshire.

Argued: September 18, 2014

Opinion Issued: December 30, 2014

Paul A. Petrillo, of Salem, by brief and orally, for the plaintiffs.

Hinshaw & Culbertson LLP, of Boston, Massachusetts (Marissa I. Delinks and Justin M. Fabella on the brief, and Ms. Delinks orally), for the defendant.

CONBOY, J.

The plaintiffs, George Maroun, Sr. (husband) and Edith Maroun (wife), filed a petition seeking to enjoin the defendant, Deutsche Bank National Trust Company (bank), from foreclosing on property owned by the wife. The Superior Court (McHugh, J.) denied the plaintiffs' summary judgment motion and granted the bank's cross-motion for summary judgment. The plaintiffs appeal, and we affirm.

I. Background

The following facts are drawn from the trial court's order or are otherwise undisputed on the record before us. Prior to 1991, the plaintiffs owned property in Salem (the property) together. In 1991, the husband executed a deed (1991 deed) that conveyed his interest in the property to the wife. Ten years later, in 2001, the husband executed a notarized affidavit (2001 affidavit), which stated that at the time he executed the 1991 deed he was married to the wife and that, "through accident, inadvertence or mistake, the deed did not state that [he] released [his] homestead rights." The husband purportedly made the 2001 affidavit "to correct said omission." The affidavit referenced only the 1991 deed, and the correction did not purport to relate to any specific mortgage on the property. The affidavit was filed with the Rockingham County Registry of Deeds. Also in 2001, the husband and wife executed a mortgage on the property (2001 mortgage), which stated: "I, George C. Maroun, husband of mortgagor, hereby waive all rights of homestead and other interests herein." In 2002, the husband and wife executed another mortgage on the property (2002 mortgage) that included the same language waiving the husband's homestead right and other interests in the property.

In 2006, the wife, alone, executed both a promissory note and a mortgage on the property (2006 mortgage), which are the subject of this litigation. The mortgage document erroneously states that the wife is a single woman. Although the mortgage document also states, "Borrower [wife], and Borrower's spouse, if any, release all rights of homestead ... and ... other interests in the Property," the husband did not sign the note or the mortgage document. In 2009, the mortgage was assigned to the bank. The bank took no action to address the status of the husband's homestead right.

In 2008, the wife filed an individual Chapter 13 bankruptcy petition that listed the property as an asset on the required schedule of real property. In 2010, the wife filed amended schedules of assets with the bankruptcy court in her bankruptcy case that asserted that the husband possessed a homestead right in the property and that the husband's claim had a higher priority than the 2006 mortgage. When the wife ultimately emerged from bankruptcy protection, she was required to pay some prepetition arrearage amounts secured by the 2006 mortgage and to make certain ongoing payments on the debt. Following her discharge, the wife did not cure her arrears, and the bank sought to foreclose upon the property.

The plaintiffs filed a petition for injunctive relief in the superior court, arguing that the husband's homestead right has priority over the 2006 mortgage debt, and requesting a permanent injunction against the bank's foreclosure sale of the property. The parties agreed that there were no disputed issues of material fact, and each moved for summary judgment. The trial court granted the bank's motion for summary judgment and denied the plaintiffs' motion.

On appeal, the plaintiffs argue that the trial court erroneously concluded that the husband waived or released his homestead rights with respect to the 2006 mortgage. The plaintiffs also contend that the trial court erred by not finding that, pursuant to the doctrines of res judicata and collateral estoppel, the bank is estopped from foreclosing on the husband's homestead rights based upon rulings in the wife's bankruptcy case. Finally, despite the trial court's finding that an erroneous reference to the wife's status as a single woman in the 2006 mortgage document was probably a scrivener's error, the plaintiffs assert that the erroneous reference "is not without relevance." We address each argument in turn.

II. Standard of Review

In reviewing the trial court's rulings on cross-motions for summary judgment, "we consider the evidence in the light most favorable to each party in its capacity as the nonmoving party and, if no genuine issue of material fact exists, we determine whether the moving party is entitled to judgment as a matter of law." Granite State Mgmt. & Res. v. City of Concord, 165 N.H. 277, 282, 75 A.3d 1112 (2013) (quotation omitted). "If our review of that evidence discloses no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law, then we will affirm the grant of summary judgment." Id. (quotation omitted).

III. Waiver of Homestead Right

The trial court concluded that the husband's notarized 2001 "affidavit explaining that his intent in giving the deed was to release his homestead rights" was "sufficient to validly waive his homestead rights" as to the 2006 mortgage. On appeal, the plaintiffs argue that the trial court erroneously "imputed" the husband's prior waivers of his homestead right, including the waiver in the 2001 affidavit, to the 2006 mortgage because the homestead statute "does not contain conditional words or phrases regarding when or how frequently a written waiver or encumbrance of [the] homestead must occur to be valid."

Resolving this issue requires us to interpret and apply the statutory homestead exemption. See RSA 480:1, :3–a, :5–a (2013), :4 (Supp. 2014). The interpretation and application of statutes present questions of law, which we review de novo. Deyeso v. Cavadi, 165 N.H. 76, 79, 66 A.3d 1236 (2013). 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. Chase v. Ameriquest Mortgage Co., 155 N.H. 19, 22, 921 A.2d 369 (2007). When examining the language of a statute, we ascribe the plain and ordinary meaning to the words used. Id. We do not construe statutes in isolation; instead, we attempt to do so in harmony with the overall statutory scheme. Id. When interpreting two or more statutes that deal with a similar subject matter, we construe them so that they do not contradict each other, and so that they will lead to reasonable results and effectuate the legislative purpose of the statutes. Id. Statutory homestead protections are universally held to be liberally construed to achieve their public policy objective. See Deyeso, 165 N.H. at 80, 66 A.3d 1236.

In New Hampshire, "[e]very person is entitled to $100,000 worth of his or her homestead, or of his or her interest therein, as a homestead." RSA 480:1. "The homestead right is generally exempt from attachment or encumbrance." Stewart v. Bader, 154 N.H. 75, 88, 907 A.2d 931 (2006). "The purpose of the homestead exemption is to secure to debtors and their families the shelter of the homestead roof." Deyeso, 165 N.H. at 79, 66 A.3d 1236 ; see also Gunnison v. Twitchel, 38 N.H. 62, 69 (1859) ("[T]he great and paramount object of the homestead act [is] ... to protect and preserve inviolate ... a family home ...."). "The exemption protects the family from destitution, and protects society from the danger of its citizens becoming paupers." Deyeso, 165 N.H. at 79–80, 66 A.3d 1236 (quotation, brackets, and ellipsis omitted). "It also promotes the stability and welfare of the state by encouraging property ownership and independence on the part of the citizen."

Id. at 80, 66 A.3d 1236 (quotation and brackets omitted).

The statutory protection of the homestead right also extends to spouses who occupy the homestead but are not title owners of the property: "The owner and the husband or wife of the owner are entitled to occupy the homestead right during the owner's lifetime," and, after the owner's death, the surviving spouse is entitled to the homestead right during his or her lifetime. RSA 480:3–a ; see Bothell v. Sweet, 6 A. 646, 648 (N.H.1886) (concluding that plaintiff's homestead right was not affected by three mortgages in which she did not join because she "preserved her homestead right by occupation"). The statute, therefore, contemplates a homestead right in both spouses, even when only one spouse legally owns the homestead. See RSA 480:3–a.

In accord with the statute's purpose, RSA 480:4 states that "[t]he homestead right is exempt from attachment during its continuance from levy or sale on execution, and from liability to be encumbered or taken for the payment of debts." The statute provides only four exceptions to the homestead right exemption: (1) "the collection of taxes"; (2) "the enforcement of liens of mechanics and others for debts created in the construction, repair or improvement of the homestead"; (3) "the enforcement of mortgages which are made a charge thereon according to law"; and (4) "the levy of executions as provided in this chapter." RSA 480:4 ; see Deyeso, 165 N.H. at 79, 66 A.3d 1236. Additionally, "[n]o deed shall convey or encumber the homestead right, except a mortgage made at the time of purchase to secure payment of the purchase money, unless it is executed by the owner and wife or husband, if any, with the formalities required for the conveyance of land." RSA 480:5–a. Moreover, if a deed is signed by both spouses with the requisite formalities, there is no requirement that the text of the deed contain an express waiver of the homestead right. See Verdolino v. Anderson, 12...