As Corrected December 11, 2014.
As Amended May 12, 2015.
APPEAL FROM THE UNITED STATES DISTRICT COURT. FOR THE DISTRICT OF NEW HAMPSHIRE. Hon. Joseph A. DiClerico, Jr. U.S. District Judge.
Stephen T. Martin, with whom The Law Offices of Martin & Hipple, PLLC was on brief, for appellant.
Elizabeth T. Timkovich, with whom Phoebe N. Coddington and Winston & Strawn LLP were on brief, for appellee.
Stephanie A. Bray and New Hampshire Legal Assistance on brief, amicus curiae in support of appellant.
Before Howard, Lipez and Barron, Circuit Judges.
HOWARD, Circuit Judge.
This case presents the labyrinthine question of whether New Hampshire law requires a foreclosing entity to hold both mortgage and note before it can exercise a power of sale under N.H. Rev. Stat. Ann. (" RSA" ) § 479:25. In turn, that issue splinters into two distinct inquiries: whether either the common law or state statute mandates the unity of the two and, if so, whether parties can override that baseline rule by agreement. Because controlling state precedent does not provide definitive guidance on how to resolve these queries, and since consequential federalism interests are implicated, we will certify the questions to the New Hampshire Supreme Court. N.H. S.Ct. R. 34.
In April 2007, Plaintiff-Appellant Joseph Castagnaro executed a promissory note in favor of Regency Mortgage Corporation (" Regency" ) and a mortgage to Mortgage Electronic Registration Systems, Inc. (" MERS" ) as nominee for the lender and lender's successors and assigns. From that point forward, the mortgage document (evidencing the security interest in the property) and the note (evidencing the underlying agreement to repay the loan on the property secured by the mortgage) traveled different routes.
On December 3, 2010, MERS assigned the mortgage to BAC Home Loan Servicing (" BAC" ). Subsequently, it was assigned to Defendant-Appellee Bank of New York Mellon (" BNYM" ). BNYM is the current mortgagee.
Two versions of the note are found in the record. The first shows an undated indorsement from Regency to American Residential Mortgage. The phrase " certified true copy" has been excised in this version. The second version includes an undated assignment from Regency to American Residential Mortgage, and an undated indorsement to Countrywide Bank FSB. An allonge (in essence, an attachment) to this note reveals an undated assignment from Countrywide Bank FSB to Countrywide Home Loans, followed by an undated indorsement in blank.
After Castagnaro failed to make certain mortgage payments, BNYM moved to foreclose. Just days before the scheduled foreclosure sale, however, ...