Edward J. Keenan, Jr. v. Federal National Mortgage Association

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0633, Edward J. Keenan, Jr. v. Federal
National Mortgage Association, the court on May 12, 2015,
issued the following order:

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

The plaintiff, Edward J. Keenan, Jr., appeals the order of the Superior
Court (Garfunkel, J.) denying his petition to set aside a foreclosure sale
conducted by the defendant, Federal National Mortgage Association. He argues
that the trial court erred in: (1) finding that he received actual notice of the
foreclosure sale; (2) failing to exercise its equitable powers to address the
alleged unfairness of the foreclosure; (3) failing to rule that the defendant was
required to make an additional, good faith effort to ensure that he received
actual notice of the sale; (4) failing to rule that the notice provision of RSA
479:25 violated his right to due process under the State and Federal
Constitutions; and (5) finding that he waived his claim that the foreclosure sale
was invalid because it was not conducted on the mortgaged premises.

We first address the plaintiff’s argument that the trial court’s finding that
he received actual notice of the foreclosure sale is unsupported by the
evidence. The trial court issued its order following a bench trial. The plaintiff
failed to provide a transcript of the trial for our review. It is the burden of the
appealing party, here the plaintiff, to provide this court with a record sufficient
to decide his issues on appeal. Bean v. Red Oak Prop. Mgmt., 151 N.H. 248,
250 (2004); see also See Sup. Ct. R. 15(3) (“If the moving party intends to argue
in the supreme court that a finding or conclusion is unsupported by the
evidence or is contrary to the evidence, he shall include in the record a
transcript of all evidence relevant to such finding or conclusion.”). Although
the plaintiff denied receiving notice of the foreclosure sale, the court specifically
found, based upon “the uncontested circumstantial evidence” at trial, that he
received actual notice of the sale. Absent a transcript of the trial, we assume
that the evidence was sufficient to support the court’s finding. See Bean, 151
N.H. at 250.

We next address the plaintiff’s argument that the trial court erred in
failing to exercise its equitable powers to address the alleged unfairness of the
foreclosure. “The propriety of affording equitable relief rests in the sound
discretion of the trial court to be exercised according to the circumstances and
exigencies of the case.” Livingston v. 18 Mile Point Drive, 158 N.H. 619, 626
(2009) (quotation omitted). “We will uphold a trial court’s equitable order
unless its decision constitutes an unsustainable exercise of discretion.” Id.
The plaintiff asserts that the defendant’s failure to properly credit his account
with a wire transfer payment “was the proximate cause of the
misunderstanding that ultimately led directly to the foreclosure.” The
plaintiff’s argument contains factual components premised upon evidence
presented to the trial court. Absent a transcript of the trial, we cannot
conclude that the trial court unsustainably exercised its discretion. See id.

The plaintiff also argues that when the foreclosing mortgagee does not
obtain a signed certified mail return receipt verifying that the mortgagor
received the foreclosure notice, the foreclosure statute, RSA 479:25 (2013),
requires the mortgagee to make an additional, good faith effort to ensure that
the mortgagor receives actual notice of the foreclosure sale. He argues that
this provision was triggered because “for whatever reason[, he] received no
notice” of the foreclosure sale. However, as previously noted, the trial court
specifically found that the plaintiff received actual notice of the sale, and we
assume that the evidence was sufficient to support the court’s finding. See
Bean, 151 N.H. at 250. Accordingly, we need not address this issue. See
Duncan v. State, 166 N.H. 630, 641 (2014) (noting that we decide actual, not
hypothetical cases); see also In re Guardianship of R.A., 155 N.H. 98, 100-101
(2007) (discussing mootness doctrine). Likewise, we need not address the
plaintiff’s argument that the notice provision of RSA 479:25 violates his right to
due process under the State and Federal Constitutions by “allow[ing] a
mortgagee to foreclose upon property without ensuring that the mortgagor has
obtained knowledge of the sale.” See Whiting v. United States, 231 F.3d 70,
74-75 (1st Cir. 2000) (“notice in fact” sufficient to ensure a meaningful
opportunity to be heard will defeat a due process challenge); Elmco Properties,
Inc. v. Second National Federal Savings Assoc., 94 F.3d 914, 921-22 (4th Cir.
1996) (timely, actual notice defeats due process challenge); Richardson v. Town
of Eastover, 922 F.2d 1152, 1159 (4th Cir. 1991) (actual notice defeats claim of
prejudice or unfairness); cf. Malnati v. State, 148 N.H. 94, 98 (2002) (plaintiffs
suffered no injury due to alleged defect in notice because they had actual
notice and therefore lacked standing to challenge statutory notice provision).

Finally, we address the plaintiff’s argument that the trial court erred in
finding that he waived his claim that the foreclosure sale was invalid because it
was not conducted on the mortgaged premises. See RSA 479:25, III (“The sale
shall be held upon the premises except where a different place of sale is agreed
upon in the mortgage.”). The court first noted that in his petition to set aside
the sale, the plaintiff failed to allege that the sale was not conducted on the
premises. The court also noted that, therefore, the defendant had no
opportunity to rebut the plaintiff’s trial testimony that the sale could not have
been conducted on the premises because there was a chain across the
driveway. The trial court has broad discretion in managing the proceedings
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before it. In the Matter of Conner & Conner, 156 N.H. 250, 252 (2007). We
review a trial court’s rulings in this area under an unsustainable exercise of
discretion standard. Id. The plaintiff argues that he included this claim in his
complaint by alleging that he was “challenging the form of notice, the manner
of giving notice and the conduct of the foreclosure sale for the reasons set forth
above.” However, as the defendant correctly notes, the “reasons set forth
above” do not include any allegation that the sale was invalid because it was
not conducted on the premises. Accordingly, we conclude that the plaintiff has
failed to demonstrate that the trial court unsustainably exercised its discretion
in finding that he waived this claim. See id.

Affirmed.

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

Eileen Fox,
Clerk

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