JP Morgan Mortgage Acquisition Corp. v. Judy Thomas

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2013-0791, JP Morgan Mortgage Acquisition
Corp. v. Judy Thomas, the court on February 11, 2015, issued
the following order:

Having considered the briefs, oral argument, and the record on appeal,
the court concludes that a formal written opinion is unnecessary in this case.
The defendant, Judy Thomas, appeals an order of the Circuit Court (Spath, J.)
denying her motion in limine. We affirm.

The following facts are supported by the record. The plaintiff, JP Morgan
Mortgage Acquisition Corporation, represents that in April 2013, it commenced
an eviction action against the defendant. In June 2013, the defendant filed a
motion to dismiss, alleging that the plaintiff “lacks sufficient competent
evidence admissible under the New Hampshire Rules of Evidence to satisfy its
burden of proof that the Plaintiff is the owner of the property as a purchaser at
a valid foreclosure.” In October 2013, on the same day as the hearing on the
merits, the defendant filed a motion in limine to exclude the plaintiff’s
foreclosure affidavit on grounds that it was inadmissible hearsay,
untrustworthy, and not “a record of regularly conducted activity.” Following
the hearing, the trial court denied the motion in limine, finding that the
plaintiff’s foreclosure affidavit “is properly authenticated, is not hearsay, and
. . . establishes the possessory right of the plaintiff, and that no other
supporting testimony is necessary.”

On appeal, the defendant argues that the trial court erred in determining
that the plaintiff satisfied its burden to establish ownership. The defendant
asserts that “[t]he affidavit of foreclosure tendered at the hearing was patent
inadmissible hearsay not coming within any hearsay exceptions because the
affiant was not present at the foreclosure,” and that “[w]ithout ‘other
testimony,’” the plaintiff “failed to carry its burden of proof at the eviction
hearing that it was the owner of the property under RSA 540:12.” We disagree.

Under RSA 540:12, “The owner, lessor, or purchaser at a mortgage
foreclosure sale of any tenement or real estate may recover possession thereof
from a lessee, occupant, mortgagor, or other person in possession, holding it
without right, after notice in writing to quit . . . .” RSA 540:12 (2007). In
Deutsche Bank Nat’l Trust Co. v. Kevlik, 161 N.H. 800 (2011), and
subsequently in Wells Fargo Bank v. Schultz, 164 N.H. 608 (2013), we
addressed whether the plaintiff in a possessory action had satisfied the
“ownership” element of RSA 540:12. See Kevlik, 161 N.H. at 803-04; Schultz,
164 N.H. at 610-11.
 In Kevlik, to establish proof of ownership, the plaintiff presented
“uncertified copies of a foreclosure deed and affidavit and a mortgage
assignment.” Kevlik, 161 N.H. at 803. Holding that “the plaintiff [had] not
carried its burden to show ownership of the property,” we noted that the trial
court could have properly ruled on the question of possession “[h]ad the
plaintiff proffered authenticated documents, with supporting testimony if
necessary, regarding the foreclosure sale, or other proof of its ownership of the
property.” Id. at 804. Thereafter, in Schultz, to establish proof of ownership,
the plaintiff submitted a certified copy of its foreclosure deed. Schultz, 164
N.H. at 611. We concluded that “the plaintiff’s certified copy of the foreclosure
deed was sufficient to establish that it was a ‘purchaser at a mortgage
foreclosure sale’ eligible to seek possession under RSA 540:12.” Id. In doing
so, we rejected the defendant’s argument that “the mere provision of a
foreclosure deed should not be sufficient to establish the standing of a
possessory plaintiff to bring an eviction action.” Id. (quotation and ellipsis
omitted).

Here, in accordance with Schultz, the plaintiff carried its burden of
establishing ownership of the property by submitting certified copies of the
foreclosure deed and affidavit. We reject the defendant’s argument that the
certified copy of the affidavit is inadmissible hearsay, and that without “‘other
testimony’” the plaintiff “failed to carry its burden of proof at the eviction
hearing that it was the owner of the property.” See N.H. R. Ev. 902(4) (extrinsic
evidence of authenticity as a condition precedent to admissibility is not
required with respect to certified copies of public records). To the extent that
the defendant alleges title issues, the circuit court lacked jurisdiction over such
issues, see RSA 502-A:14, I (2010), and it is undisputed that the defendant
failed to transfer the case to superior court. RSA 540:17 (2007); see Bank of
N.Y. Mellon v. Cataldo, 161 N.H. 135, 139 (2010) (“Having failed to enter their
title action in the superior court, the defendants were prohibited from offering
evidence in the possessory action in district court that may bring the title of the
demanded premises in question.”). We decline to address the remaining issues
raised by the defendant because they are insufficiently developed to warrant
judicial review. See Granite State Mgmt. & Res. v. City of Concord, 165 N.H.
277, 288 (2013). Accordingly, we affirm the trial court’s order. We grant the
plaintiff’s motion to strike exhibits included in the defendant’s appendix and
identified in the plaintiff’s motion as items (a), (b), and (d) and deny the motion
as to item (c).

Affirmed.

DALIANIS, C.J., and HICKS, CONBOY, LYNN, and BASSETT, JJ.,
concurred.

Eileen Fox,
Clerk

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