You never know what a court is going to do on any given day. That said, in reading the NH Supreme Order, this case was not about assignments or securitization or third party “scammers” as originally critiqued.
According to the NH Supreme Order, Scott Shultz unfortunately never brought an action to enjoin the original foreclosure. Under NH RSA 479:25, this is currently fatal to a foreclosure defense in the state.
479:25 Sale Under the Power.
II. Notice of the sale as served on or mailed to the mortgagor shall include the following language:
"You are hereby notified that you have a right to petition the superior court for the county in which the mortgaged premises are situated, with service upon the mortgagee, and upon such bond as the court may require, to enjoin the scheduled foreclosure sale.'' Failure to institute such petition and complete service upon the foreclosing party, or his agent, conducting the sale prior to sale shall thereafter bar any action or right of action of the mortgagor based on the validity of the foreclosure. (emphasis added)
The defect in this case is not a failed chain of title argument issue but failures of a.) the borrower to file a Motion for Temporary Enjoinment to halt the May 2011 foreclosure auction and b.) counsel to file a plea of title claim and/or request that the lower District court remand the case to Superior Court as, as discussed in the order, District had no jurisdiction over portions of the case. To wit:
RSA 540:17 (2007). Because the district division lacks jurisdiction to adjudicate issues related to title, we reject the proposition that a defendant in a possessory action before the district division can challenge a plaintiff’s chain of “record title” underlying a foreclosure deed other than by complying with the requirements of RSA 540:17.
For reference, NH RSA 540:17 states:
540:17 Plea of Title, Recognizance. – 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 (emphasis added) 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.
Had Mr. Shultz' counsel made the request to remand the case to Superior Court which did have jurisdiction to hear the necessary arguments and could have considered chain of title and securitization issues, if appropriate in the case, this case likely would not have appeared before NH Supreme in the genesis that it did.
Mr. Shultz' counsel should have been intimately familiar with the process and arguments involved as counsel had at least one other client who paid him for the privilege of losing their home for them several years ago. As those clients did file an original Motion for Temporary Enjoinment in Superior Court in their case, they were allowed to argue plea of title at the lower District court level and did so pro se. Their case was remanded to Hillsborough County Superior Court for further review. After several years as pro se litigants although not a perfect or incredibly clear order, the couple did, in fact, have title to the property restored to them.
This case was not about “scams” or a NH borrower being taken advantage of by third party, non-legal professionals. The arguments apparently made in the lower District Court post-foreclosure auction could and should have been made as part of an original foreclosure defense in Superior Court as allowed by NH RSA 479:25 and a plea of title claim, request for remand to Superior Court and other arguments made in the lower District Court. This case was about a.) a borrower failing, for whatever reason, to follow NH RSAs with regard to bringing a proper legal defense against a foreclosure action and b.) a borrower's counsel not being prepared to make the arguments necessary for a proper post-foreclosure eviction defense. In my own purely non-legal quarterbacking, this case had absolutely no business being appealed to the NH Supreme Court especially given the foundation that was laid in the lower court.