Cited by

The issue of whether Situs, as foreclosing mortgagee, exercised due diligence to obtain a fair price at auction is not before us. See Murphy v. Financial Development Corp., 126 N.H. 536, 541, 495 A.2d 1245 (1985).

Hampshire law, the plaintiff’s signature was sufficient to waive his homestead right relative to the second mortgage.” That waiver, the court determined, was “only to the extent necessary to enforce the second mortgage.” 1 The issue of whether Situs, as foreclosing mortgagee, exercised due diligence to obtain a fair price at auction is not before us. See Murphy v. Financial Development Corp., 126 N.H. 536, 541 (1985).

In that situation, we have held mortgagees executing a power of sale to a duty that is “essentially that of a fiduciary” under the “often-repeated rule that a mortgagee executing a power of sale is bound both by the statutory procedural requirements and by a duty to protect the interests of the mortgagor through the exercise of good faith and due diligence.” Murphy v. Financial Development Corp., 126 N.H. 536, 540-41 (1985).

action to enjoin a scheduled foreclosure sale “prior to sale shall thereafter bar any action or right of action of the mortgagor based on the validity of the foreclosure.” We have held that RSA 479:25, II “bars any action based on facts which the mortgagor knew or should have known soon enough to reasonably permit the filing of a petition prior to the sale.” Murphy v. Financial Development Corp., 126 N.H. 536, 540 (1985).

They argue that they were entitled to have the foreclosure deed set aside because, they claim, the foreclosure sale was not “public” and, thus, that it necessarily violated RSA 479:25 and the defendant’s obligations under Murphy v. Financial Development Corp., 126 N.H. 536 (1985).

As to the foreclosure sale, a mortgagee “must exert every reasonable effort to obtain a fair and reasonable price under the circumstances.” Murphy v. Financial Development Corp., 126 N.H. 536, 541 (1985) (quotation omitted).

Murphy v. Financial Development Corp., 126 N.H. 536, 541, 495 A.2d 1245, 1249 (1985).

Murphy v. Financial Development Corp., 126 N.H. 536, 541, 495 A.2d 1245, 1249-50 (1985) (discussing mortgagee’s duty to receive a fair and reasonable price at foreclosure sale).

“In his role as a seller, the mortgagee’s duty of good faith and due diligence is essentially that of a fiduciary.” Murphy v. Financial Development Corp., 126 N.H. 536, 541, 495 A.2d 1245, 1249 (1985).

In Murphy v. Financial Development Corp., 126 N.H. 536, 495 A.2d 1245 (1985), we held that, in the context of a foreclosure sale, the mortgagee owes the mortgagor a fiduciary duty of good faith and due diligence.

s claim in their brief, “nor were there any provable allegations of fact to support a claim of bad faith.” Specifically, the defendants argue that, while the plaintiffs made many claims that the selectmen acted wrongfully or illegally, they made no allegation that the selectmen acted with malice or with evil intent, an essential component of “bad faith.” See Murphy v. Financial Development Corp., 126 N.H. 536, 542, 495 A.2d 1245, 1250 (1985) (bad faith defined as “intentional disregard of duty o

Further, the plaintiff argues that the holding of Murphy v. Financial Development Corp., 126 N.H. 536, 495 A.2d 1245 (1985) should be extended to include foreseeable creditors of the mortgagor as parties to whom a foreclosing bank owes the duties of due diligence and good faith.

ust and confidence and owes an obligation of undivided loyalty, a relationship like that of a lawyer to a client and a trustee to a beneficiary, Crowley v. Global Realty, Inc., 124 N.H. 814, 474 A.2d 1056 (1984); that the duty of good faith and due diligence of a mortgagee in conducting a foreclosure sale of real estate is “essentially that of a fiduciary,” Murphy v. Financial Development Corp., 126 N.H. 536, 495 A.2d 1245 (1985); and that a fiduciary duty exists when a person acts pursuant to a

Harkeem makes it clear, moreover, that for purposes of justifying a fee award “bad faith” is not limited to its narrow sense of an intentional disregard of duty or an intent to injure, see Murphy v. Financial Development Corp., 126 N.H. 536, 542, 495 A.2d 1245, 1250 (1985), but may be said to exist whenever “an individual is forced to seek judicial assistance to secure a clearly defined and established right, which should have been freely enjoyed without such intervention----” Harkeem v. Adams,