The court draws the following background from the parties' joint statement of undisputed facts1 and stipulated timeline2 and, where specifically indicated, evidence submitted before or during the preliminary injunction hearing.
A. The parties and the property Rubygold is a New York limited liability company with an official address for service of process in Melville, New York.3 Rubygold's sole member is Alexander Rubinstein, who resides in New York State.4 Rubinstein is also the sole member of Gates Road, NH Centaur Holding, LLC ("Centaur"), a New York limited liability company with the same official address for service of process as Rubygold.5 Rubygold owns property known as 5 Gates Road in Etna, New Hampshire (the "Property").6
Gardner is a New Hampshire limited liability company whose sole member is Brian Gardner, who resides in New Hampshire.7
In 2010, the Property was owned by Arrien (a/k/a Adriaan) and Robin Schiltkamp. That year, the Schiltkamps hired Gardner to renovate a house on the Property and entered into a "Construction Proposal and Contract" for the construction project.8 Two and a half years into the project, the Schiltkamps financed a portion of the construction with a $2 million loan fromMascoma Savings Bank.9 To secure the loan, the Schiltkamps granted Mascoma a mortgage on the Property and recorded the mortgage at the Grafton County Registry of Deeds on November 7, 2012.10
Mascoma disbursed money to Gardner as payment for invoices for its construction work on the project, and received mortgagor affidavits, as reflected in the following chart:11
Accordingly, out of the $2,000,000 loan, Mascoma disbursed $1,465,868.26 to Gardner for its construction work on the Property.12
After July 2013, the Schiltkamps entered into other agreements with Gardner for additional construction work on the Property, on the same time and material terms as agreed to in the April 2010 contract.13 Using funding sources other than the Mascoma loan, the Schiltkampspaid all invoices from Gardner for work performed between late-July 2013 and April 2014, and as of April 5, 2014 the Schiltkamps had a $17,211.91 credit with Gardner for the project.14
Gardner performed additional work on the Property between April 2014 and June 2015 and invoiced the Schiltkamps for this work as follows:15
The Schiltkamps partially paid these four invoices and applied their $17,211.91 credit, leaving a balance due of $245,476.85. Gardner secured and recorded a mechanic's lien in the usual manner16 for this unpaid work.17
In June of 2015, Gardner sued the Schiltkamps in Grafton County Superior Court to collect the unpaid balance due for the construction project and perfect its mechanic's lien.18 Gardner obtained a writ of attachment to perfect its mechanic's lien in the amount of $245,476.85 and recorded the writ on or about July 9, 2015 at the Grafton County Registry of Deeds.19 On October 19, 2016, Grafton County Superior Court Judge MacLeod entered a default judgment for Gardner in the amount of $382,848.54 plus costs and interest.20 His order noted that a "taxation of costs will be issued by the clerk once this order becomes final."21
D. Schiltkamp bankruptcy, and lender's relief from stay On October 31, 2016, less than 30 days after the state court's default judgment order, the Schiltkamps filed a Chapter 11 Petition in the United States Bankruptcy Court for the Southern District of New York, which later converted to a Chapter 7 liquidation proceeding.22 Gardner filed a proof of claim in the Schiltkamps' bankruptcy.23 Mascoma also filed a proof of claim, resulting from the Schiltkamps' default under the note and mortgage held by Mascoma.24Mascoma moved for relief from the automatic stay in order to pursue a foreclosure sale of the Property, to which Gardner objected.25 In August 2017, the Bankruptcy Court endorsed a stipulated order terminating the automatic stay as to Mascoma.26 The order provided in part that the "automatic stay of Bankruptcy Code § 362(a) shall be terminated as against Mascoma with respect to the Etna Property to permit Mascoma, its successors and assigns, to foreclose the Mortgage or otherwise avail itself of its available state law rights and remedies with respect to the Mortgage and Etna Property."27
The Schiltkamp bankruptcy proceeding is still pending.28 Gardner has not moved the Bankruptcy Court to terminate, modify, or annul the automatic stay.29
E. Foreclosure sale and subsequent transfers After obtaining relief from the automatic stay, Mascoma conveyed the Property by "Foreclosure Deed Under Power of Sale" to Centaur on November 21, 2017.30 Centaur paid $300,000 for the Property, and the sale was subject to "all existing liens taking precedence over the mortgage referred to herein."31 As a result of Centaur's failure to pay property taxes, the Town of Hanover acquired title to the Property through a Tax Collector's Deed.32 Centaur, however, retained redemption rights in the Property under N.H. RSA 80:89.33 On December 17, 2018, Centaur assigned its redemption rights in the Property to Rubygold.34 The Town of Hanover later conveyed the Property to Rubygold via a "Deed with No Covenants," and "subject to any liens of record against the property as of the time of the tax deed to the Town of Hanover . . . ."35
Notwithstanding the fact that the Schiltkamps' bankruptcy proceeding was still pending, and Gardner had not sought relief from the stay, Gardner moved to re-open the state court case and moved for entry of a Writ of Execution in that case in March 2019.36 By order dated April 2,2019, Superior Court Judge Bornstein re-opened the case and ordered Gardner to "furnish a copy of the [motion for a writ of execution] to [Rubygold] and certify it has done so."37 Gardner sent the motion and Superior Court's order to Rubygold by certified mail, return receipt requested to its address of record.38 On April 25, 2019, a representative of Rubygold signed for the certified mail package.39 Gardner's counsel then certified to the state court that it had furnished a copy of the motion for writ of execution to Rubygold. Rubygold did not appear in the state court case at that time, and Rubenstein - Rubygold's sole member - claims that he has "no recollection" of receiving a copy of the package.40
By order dated March 9, 2020, Superior Court Judge...
