Janice Karlsen and Roy Karlsen v. The Money Source, Inc. d/b/a TMS

2022 DNH 140

• Court: District Court, D. New Hampshire
• Decided: November 9, 2022
• Docket: 22-cv-157-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COUR T FOR THE DISTRICT OF NEW HAMPSHIRE

Janic e Karlsen and Ro y Karlsen

v. Case No. 22-cv-157-PB Opinion No. 2022 DNH 140 The Mo ney So urc e, Inc . d/b/a TMS

MEMOR ANDUM AND OR DER

Roy and Janice Karlsen filed a state court petition to enjoin the

transfer of title to their personal residence following a foreclosure sale. The

defendant, The Money Source, Inc., removed the case to this court and filed a

motion to dismiss.

The Karlsens assert that they are entitled to relief because they did not

receive advance notice of the foreclosure sale. As The Money Source notes,

however, the pertinent foreclosure statute, N.H. Rev. Stat. Ann. § 479:25, II,

does not require that a mortgagor receive actual notice of the proposed sale if

the mortgagee follows the statute’s notice requirements. See Dugan v.

Manchester Fed. Sav. & Loan Ass’n, 92 N.H. 44 (1942) (construing P.L. Ch.

215, § 23); Butterfield v. Deutsche Bank Nat’l Tr., 2017 D.N.H. 54, 2017 WL

1066579, at *2 (D.N.H. 2017); Bradley v. Wells Fargo Bank, N.A., 2014 DNH

41, 2014 WL 815333, at *3 (D.N.H. 2014). The Karlsens do not allege that The Money Source failed to comply with the statutory notice requirements.

Therefore, their petition cannot survive in its current form.

As The Money Store argues, the Karlsens’ petition also may be barred

by N.H. Rev. Stat. Ann. § 479:25, II(c), because they did not file it prior to the

foreclosure sale. See Bank of N.Y. Mellon v. Dowgiert, 169 N.H. 200, 205-06

(2016); Moody v. PennyMac Loan Servs., LLC, 2018 WL 10812614, at *6

(D.N.H. 2008). The New Hampshire Supreme Court has determined that this

bar to suit applies only to the extent that the plaintiff’s claim is “based on

facts which the mortgagor knew or should have known soon enough to

reasonably permit the filing of a petition prior to the sale.” Murphy v. Fin.

Dev. Corp., 126 N.H. 536, 540 (1985). The Karlsens allege that they did not

have advance knowledge of the foreclosure sale, but their petition does not

contain any factual allegations about whether, under the circumstances, they

should have known of the sale. Accordingly, I cannot determine on the

present record whether their claim is barred by N.H. Rev. Stat. Ann.

§ 479:25, II(c).

For the reasons set forth in this Memorandum and Order, the

defendant’s motion to dismiss is granted. Within 14 days, the defendant shall

provide plaintiffs with any evidence in its possession supporting its claim

that it provided plaintiffs with statutory notice of the foreclosure sale.

Plaintiffs shall have 14 days from the receipt of the defendant’s evidence to

2 file an amended complaint correcting the deficiencies identified in this

Memorandum and Order.

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

November 9, 2022

cc: Counsel of Record