Brian Pellerin v. Bank of New York Mellon Trust Company

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2018-0630, Brian Pellerin v. Bank of New York
Mellon Trust Company, the court on June 14, 2019, issued the
following order:

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

The plaintiff, Brian Pellerin, appeals the order of the Superior Court
(Schulman, J.), following a hearing, entering judgment for the defendant, Bank
of New York Mellon Trust Company, on his complaint seeking to enjoin a
foreclosure sale. The plaintiff argues that the trial court erred in finding that:
(1) the defendant had standing to foreclose; (2) its counsel did not commit
fraud upon the court; and (3) the foreclosure sale was valid despite the prior
issuance of an injunction.

“The issuance of injunctions, either temporary or permanent, has long
been considered an extraordinary remedy.” Pike v. Deutsche Bank, Nat’l Trust
Co., 168 N.H. 40, 45 (2015) (quotation omitted). “The trial court retains the
discretion to decide whether to grant an injunction after consideration of the
facts and established principles of equity.” Id. (quotation omitted). “We will
uphold the decision of the trial court with regard to the issuance of an
injunction absent an error of law, unsustainable exercise of discretion, or
clearly erroneous findings of fact.” Id. (quotation omitted).

The plaintiff first argues that the defendant lacked standing to foreclose
because the 2004 assignment of the mortgage to the defendant was defective.
The defendant counters that, as part of a stipulation in the plaintiff’s
bankruptcy, the defendant agreed that the 2004 assignment was defective and
executed corrective assignments in 2013 and 2015, well in advance of the
foreclosure proceeding and the September 26, 2018 sale. The trial court found
that the purpose of the 2013 and 2015 assignments was to ensure that the
defendant became the plaintiff’s mortgagee. The record supports the trial
court’s finding that the defendant, as the holder of the mortgage by
assignment, had standing to foreclose. See id.

The plaintiff argues that the trial court’s findings are incomplete because
its order failed to account for a 2017 assignment to the defendant. The
defendant counters in its brief that the 2017 assignment was unnecessary,
given the effectiveness of the 2013 and 2015 corrective assignments. We note
that the plaintiff did not attend the hearing, and the record does not reflect
that he brought the 2017 assignment to the trial court’s attention as a basis for
enjoining the foreclosure sale. We further note that the defendant asserts in its
brief, and the plaintiff does not contest in his reply brief, that the chain of title
that the defendant submitted at the hearing included the 2017 assignment.

On this record, we conclude that the argument that the trial court failed
to account for a 2017 assignment to the defendant is not preserved. See Bean
v. Red Oak Prop. Mgmt., 151 N.H. 248, 250 (2004) (parties may not have
judicial review of matters not raised in trial court). Even if the plaintiff had
raised this issue in the trial court, however, we would assume that the trial
court found that the 2017 assignment was unnecessary or that it did not
otherwise deprive the defendant of standing to foreclose. See In the Matter of
Costa & Costa, 156 N.H. 323, 331 (2007) (we assume trial court made all
subsidiary findings necessary to support its decision). Moreover, on this
record, we reject the plaintiff’s argument that the defendant’s attorney
committed fraud upon the court by allegedly failing to bring the 2017
assignment to the trial court’s attention.

The plaintiff next argues that the trial court erred in validating the
foreclosure sale despite having issued a temporary restraining order the day
before the sale. The record shows that the plaintiff filed his complaint and
request for injunctive relief at 4:54 p.m. on September 24, 2018, two days prior
to the scheduled foreclosure sale. The following day, at 2:51 p.m., the plaintiff
moved for reconsideration of the court’s decision denying his request for ex
parte relief. Although, upon reconsideration, the court granted the request for
temporary injunctive relief, it later found that the September 26, 2018 sale was
valid because it occurred before the plaintiff served notice upon the defendant
or gave the defendant informal notice of the restraining order.

In his brief, the plaintiff asserts that he gave the defendant informal
notice of the restraining order prior to the sale. However, as the trial court
noted, the plaintiff had an opportunity to introduce evidence of such informal
notice at the hearing but chose not to attend. The record supports the court’s
finding that the defendant did not receive informal notice prior to the sale.
Accordingly, we cannot conclude that the court unsustainably exercised its
discretion in validating the sale. See Pike, 168 N.H. at 45.

The plaintiff further asserts that he did not appear at the hearing
because the court’s notice allegedly was defective. The plaintiff relies upon
language in the court’s order granting his motion for reconsideration, in which
it stated that it would issue a separate order granting temporary injunctive
relief “pending a hearing at which the defendant can be heard.” The plaintiff
claims that the court failed to issue a separate order. However, the plaintiff
does not contest that he received timely notice of the court’s summons, which
notified the parties of the time and date of the final hearing. The record

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supports the trial court’s finding that the plaintiff received notice of the
hearing. See id. Accordingly, we reject the plaintiff’s argument that the trial
court, by relying upon the representations of the defendant’s attorney at the
hearing, violated the plaintiff’s due process rights.

To the extent that the plaintiff’s brief raises additional arguments, we
conclude that the record is insufficient to address them, see Bean v. Red Oak
Prop. Mgmt., 151 N.H. 248, 250 (2004), that they are insufficiently developed,
see State v. Blackmer, 149 N.H. 47, 49 (2003), and that they warrant no
further consideration, see Vogel v. Vogel, 137 N.H. 321, 322 (1993); see also In
the Matter of Birmingham & Birmingham, 154 N.H. 51, 56 (2006) (self-
represented litigants are bound by the same procedural rules that govern parties
represented by counsel).

Affirmed.

Lynn, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.

Eileen Fox,
Clerk

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