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Foreclosures And Evictions

On Behalf of | Mar 12, 2013 | Real Estate Law

New Hampshire is not immune to the wave of foreclosures that is sweeping the country. As such, New Hampshire courts have had to deal with how a foreclosing entity can prove it is the actual owner of the property. In Wells Fargo Bank v. Schultz, the defendant, Scott Schultz obtained a mortgage to purchase a home in East Hampstead. After he fell behind on his mortgage payments, the lender instituted a foreclosure proceeding. Wells Fargo purchased the property at a foreclosure sale and shortly thereafter sought to evict Mr. Schultz from his house.

Mr. Schultz attempted to argue that Wells Fargo did not have the ability to evict him because it could not show that it had valid title to the property. The District Court denied Mr. Schultz’s request that the action be dismissed and eventually ordered the him to vacate the property. On appeal, the Supreme Court held that Wells Fargo need only produce proof that it was the purchaser of the foreclosed property which, in this case, it did through a certified copy of the Foreclosure Deed. The District Court did not have jurisdiction to resolve issues of title which Mr. Schultz attempted to raise as a defense to the foreclosure action.

This case stands for the proposition that should a person who is being foreclosed upon wish to assert that the foreclosing entity does have the authority to institute a foreclosure action; he or she must immediately bring this matter to the Superior Court in an effort to enjoin the foreclosure.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].