Hangen v. Robinson, et al.

• Court: District Court, D. New Hampshire
• Decided: August 25, 1997
• Docket: CV-96-494-M
• Status: Published

Opinion

Hangen v. Robinson, et al. CV-96-494-M 08/25/97 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John R. Hangen and Ann Hangen

v. Civil No. 96-494-M

Wallace B. Robinson and Betty Ann Robinson, et al.

O R D E R

In this quiet title action, the plaintiffs, John and Ann

Hangen, move for summary judgment. They seek to clear an

attachment on their property obtained by defendants, Wallace and

Betty Ann Robinson. Defendants object. For the following

reasons, summary judgment is granted in favor of plaintiffs.

Discussion

Summary judgment is appropriate if the "pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c). The court construes the record in the light most

favorable to the non-moving party, the defendants in this case,

and draws all reasonable inferences and resolves factual dispute

in their favor. The Saenger Organization, Inc. v. Nationwide

Ins. Licensing Assoc., No. 962197, 1997 WL 394469 at *1 (1st Cir

July 18, 1997). When the moving party provides properly supported and undisputed facts that lead to only one plausible

legal conclusion, summary judgment is appropriate. Griqqs-Rvan

v. Smith, 904 F.2d 112, 115-16 (1st Cir. 1990) .

In August 1995, plaintiffs purchased a condominium unit in

Hampton, New Hampshire, that had been conveyed in 1992 to the

sellers (plaintiffs' grantors) by tax deed from the Town of

Hampton. Prior to the tax deed, while the property was owned by

Norman Breault, several attachments and liens were recorded,

including a lien by the United States Internal Revenue Service

and an attachment filed by Wallace and Betty Ann Robinson. The

Robinsons recorded their prejudgment attachment on the property

in connection with a suit in Hampton District Court against

Breault. Judgment was entered in that action on October 15,

1990, in the amount of $4,012.11 against Breault and in favor of

the Robinsons.

Plaintiffs brought this guiet title action1 to establish

that the tax deed from the Town of Hampton extinguished all prior

encumbrances on the title. In support of their summary judgment

motion, plaintiffs assert that the Robinsons' attachment expired

by operation of law on October 15, 1996, or six years after

judgment was entered in their favor. See N.H. Rev. Stat. Ann. §

511:55.2 Thus, whether the tax deed extinguished the Robinsons'

1 Plaintiffs filed their action in state court in August 1996. It was removed to federal court pursuant to 28 U.S.C.A. § 1444, as a foreclosure action against the United States.

2 The statute provides in pertinent part:

2 attachment or not, the attachment has plainly expired by

operation of law. Plaintiffs have provided unchallenged copies

of the recorded attachment and the judgment issued in favor of

the Robinsons against Breault.

In objecting, the Robinsons do not dispute any facts but

argue, without citation to any legal authority, that because

their attachment was still valid when the guiet title action was

first filed, its later expiration should not affect their

interest in the property. The court finds no support for the

Robinsons' theory. Instead, since the applicable limitation

period has expired without execution by the Robinsons, the

attachment is dissolved; it is no longer legally enforceable;

and, it cannot be revived. See Murphy v. Hill, 68 N.H. 544, 545

(18 96); Nihan v. Knight, 56 N.H. 167 (1875).

Accordingly, plaintiffs are entitled to judgment as a matter

of law. The Robinsons' attachment, previously recorded against

their property, has expired and is of no force or effect.

Conclusion

Real property attached shall be held until the expiration of 6 years and personal property until the expiration of 60 days from the time of rendering a judgment in the action in favor of the plaintiff on which he can take execution, and, if there are several attachments, the property shall be held for the creditors in the order in which their attachments were made. N.H. Rev. Stat. Ann. § 511:55, I (1997).

3 For the foregoing reasons, plaintiffs' motion for summary

judgment against defendants Wallace and Betty Ann Robinson

(document no. 11) is granted.

SO ORDERED.

Steven J. McAuliffe United States District Judge

August 25, 1997

cc: Peter J. Saari, Esg. T. David Plourde, Esg. Beth A. Westerman, Esg. Robert G. Tetler, Esg.