The Bank of New York Mellon Trust Company, NA v. Nicholas Cohen

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0229, The Bank of New York Mellon Trust
Company, NA v. Nicholas Cohen, the court on February 19,
2015, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm.

The defendant, Nicholas Cohen, appeals an order of the Circuit Court
(Yazinski, J.) awarding the plaintiff, The Bank of New York Mellon Trust
Company, N.A., a writ of possession. The defendant argues that he properly
asserted a plea of title and that because the circuit court lacks jurisdiction to
resolve title disputes, the court erred by ruling on the merits of his plea of title
and depriving him of an opportunity to enter his action in superior court.

The record shows that the plaintiff filed a landlord-tenant writ, which the
sheriff served upon the defendant on January 7, 2014. On January 30, 2014,
the defendant filed a plea of title, challenging the plaintiff’s title to the subject
property.

RSA 540:17 and :18 (2007) set forth the procedures the circuit court
must follow when a defendant raises an issue of title. See Bank of N.Y. Mellon
v. Cataldo, 161 N.H. 135, 137 (2010); see also RSA 490-F:3 (Supp. 2013)
(conferring upon circuit courts the powers and duties of former district courts).

RSA 540:17 states:

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 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.

RSA 540:18 states:

After the filing of such plea and the entry of such recognizance no
further proceedings shall be had before the municipal court, but
 the action may be entered and prosecuted in the superior court in
the same manner as if it were originally begun there.

See also RSA 502-A:34 (2010) (repealed 2011) (conferring on district courts the
jurisdiction, powers, and duties formerly possessed by municipal courts);
RSA 490-F:3.

The filing of a plea of title in the circuit court does not immediately halt
the possessory proceedings. See Cataldo, 161 N.H. at 137. Rather, RSA
540:17 places the burden to institute the action in the superior court on the
defendant. See id. at 138. Because the circuit court lacks jurisdiction to
decide a plea of title, when a defendant raises such a claim, the circuit court
must provide the defendant with an opportunity to promise to enter his action
in the superior court. Friedline v. Roe, 166 N.H. 264, 267-68 (2014). If the
defendant fails to enter his action in the superior court, then the circuit court
may resume the possessory proceedings. See Cataldo, 161 N.H. at 138.

In this case, the defendant argues that the trial court deprived him of an
opportunity to enter his action in the superior court by entering judgment for
the plaintiff. We disagree. In Cataldo, the plaintiff bank instituted an eviction
action against the defendants in district court after purchasing the defendants’
property at a foreclosure sale. See id. at 136. When the defendants filed a plea
of title, the court ruled:

[The defendants] should file an action at the Superior Court with
regard to title prior to the final hearing on December 1, 2009. If
such an action is filed then this case will be transferred for
consolidation. In the absence of such a filing, the Court will
proceed to the final hearing.

Id. (brackets omitted). When the defendants in Cataldo failed to file an action
in superior court within the time allowed, the district court issued a judgment
in the bank’s favor. Id. We held that the district court committed no error
because it was authorized to resume the possessory action after the defendants
failed to enter their action in superior court. Id. at 138.

In this case, in response to the defendant’s plea of title, the court ruled:

I’m going to enter a judgment for the Plaintiff. And I’ve provided
that a writ of possession will issue on March 31st of 2014. It’s
basically a 60-day period for you to figure out what you’re going to
do. If you think you have a case to take to Superior Court, do so
within that time period. Otherwise, [the plaintiff] is going to be
able to get a writ of possession and the sheriff will serve it.

The trial court’s instructions in this case were essentially the same as
the instructions in Cataldo. Although the court in this case stated that it
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would enter a judgment for the plaintiff, it is clear from the context of the
court’s instructions that the plaintiff would be allowed approximately sixty
days to file an action in superior court before proceedings would resume in the
circuit court. In context, we construe the trial court’s ruling as granting the
plaintiff a conditional judgment, requiring the passage of sixty days without a
properly-filed plea of title from the defendant in order to become final. When
the defendant failed to file an action in superior court within the allotted time,
therefore, the circuit court was authorized to issue the writ of possession in the
possessory action. See id.

The defendant argues that the court’s oral instructions were
“contradicted and undermined by its written order” issued after the hearing, in
which the court stated, “The plaintiff has title pursuant to foreclosure,” without
including qualifying or conditional language, or instructions to file his plea of
title in superior court. He asserts that this order was “undeniably a judgment
rejecting the merits of his plea of title.” We disagree with the defendant’s
contentions. The record shows that the defendant asserted in his plea of title
that the plaintiff lacked authority to foreclose on the property because the
mortgage assignment was void. Although the court questioned whether the
defendant could raise this issue at this stage in the proceedings if he did not
petition to enjoin the foreclosure prior to the foreclosure sale, see RSA 479:25,
II (2013), nothing in the record shows that the circuit court rejected the merits
of his plea of title.

We conclude that the trial court gave the defendant a sufficient
opportunity to enter his action in superior court and that, given the
defendant’s failure to take such action within the time allowed, the court was
authorized to resume the possessory action. See Cataldo, 161 N.H. at 138.

Affirmed.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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