Castagnaro v. Bank of New York Mellon
Annotate this CaseThe United States Court of Appeals for the First Circuit certified two questions of New Hampshire law to the New Hampshire Supreme Court. In April 2007, plaintiff Joseph Castagnaro executed a promissory note in favor of Regency Mortgage Corporation and a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Regency (the lender) and Regency’s successors and assigns. From that point forward, the mortgage and the note traveled different routes. MERS assigned the mortgage to BAC Home Loan Servicing. BAC subsequently assigned the mortgage to defendant, The Bank of New York Mellon (Bank). The record contained two versions of the note. The first showed an undated indorsement from Regency to American Residential Mortgage, and the second included an undated assignment from Regency to American, an undated indorsement from American to Countrywide Bank FSB, an undated assignment from Countrywide Bank FSB to Countrywide Home Loans, and an undated indorsement in blank. After plaintiff failed to make certain mortgage payments, the Bank sought to foreclose. Once in federal court, the plaintiff amended his complaint, and the Bank moved to dismiss it. The federal district court granted the Bank’s motion, concluding that the parties’ intent to separate the mortgage and note at the outset of the transaction trumped any common law rule requiring unity. The federal district court ruled that because the Bank was the mortgagee, it could proceed with the foreclosure under RSA 479:25, which authorized a “mortgagee” to conduct a non-judicial foreclosure when, as in this case, the mortgage contained a clause allowing it. Plaintiff appealed to the First Circuit and requested that the First Circuit certify questions of law to the New Hampshire Supreme Court. The First Circuit asked whether New Hampshire common law and/or RSA 479:25 required a foreclosing entity to hold both the mortgage and note at the time of a nonjudicial foreclosure. If so, could an agency relationship between the note holder and the mortgage holder meet that requirement, and did language in the mortgage naming the mortgagee “nominee for lender and lender’s successors and assigns” suffice on its own to show an adequate agency relationship? In addition, assuming that the common law and/or RSA 479:25 required a unity of the mortgage and note at the time of a nonjudicial foreclosure, and that an agency relationship between the note holder and the mortgage holder did not satisfy such a requirement, could the parties’ intent to separate the two overcome the unity rule? The New Hampshire Court determined it did not have to answer whether New Hampshire common law or RSA 479:25 (2013) (amended 2015) required a foreclosing entity to hold both the mortgage and note at the time of a non-judicial foreclosure because an agency relationship between the noteholder and the mortgage holder met any such requirement and language in the mortgage naming the mortgagee “nominee for lender and lender’s successors and assigns” sufficed on its own to show an adequate agency relationship.
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