Foreclosure and Lien Priority Case Study

July 18, 2019

The Law Firm of Feniger & Uliasz was recently called upon to test the New Hampshire foreclosure statute, RSA 479:26 in the case of Bank of New York Mellon, f/k/a The Bank of New York, as Trustee of the Certificate Holders of CWABS, Inc., Asset Backed Certificates Series 2007-5 v. Franklin Heights Condominium Association.

The primary issue addressed was whether a lien filed after the 60 day period for recording of the foreclosure deed expired was prior to the mortgage or wiped out by the foreclosure sale. To this point there had been no reported decisions to define an intervening lien. There was no dispute that the Bank neglected to file the foreclosure deed within the 60 days proscribed under the statute or that the lien holder filed its lien before the foreclosure deed was recorded.

The case was litigated through motions and cross motions for summary judgment. Feniger & Uliasz also filed a counterclaim for unjust enrichment on behalf of its client.

While the court ruled that the bank had priority over the pre-foreclosure portion of the lien it gave priority of the post foreclosure lien to the lienholder and found sufficient facts to proceed to trial on the issue of unjust enrichment.

Ultimately, the case settled following the trial management conference, prior to the filing of an appeal of the court’s ruling on the summary judgments or trial on the claim of unjust enrichment. The settlement was of significant benefit to the client of Feniger & Uliasz, allowing it to recover far more than was available before litigation.