Verdolino v. Anderson

• Court: District Court, D. New Hampshire
• Decided: April 14, 1998
• Docket: CV-98-015-B
• Status: Published

Opinion

Verdolino v. Anderson CV-98-015-B 04/14/98 P

UNITED STATE DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

JoAnn Verdolino

v~ C-98-015-B

Karl H . Anderson

MEMORANDUM AND ORDER

Any effort to enforce New Hampshire's homestead exemption in

bankruptcy against a former spouse with a secured claim raises a

host of complex questions of state and federal law. See, e.g.,

Nagvi v. Fisher, 192 B.R. 591 (Bankr. D.N.H. 1995); see

generally, Sheryl S. Wolf, Divorce, Bankruptcy, and Metaphysics:

Avoidance of Marital Liens Under § 522(f) of the Bankruptcy Code,

31 Earn. L.Q. 513 (1997). Karl H. Anderson, the debtor in this

bankruptcy case, focuses his appeal on a single state-law issue.

He argues that the second mortgage his former wife obtained on

his home as a result of their divorce is not enforceable against

his homestead interest because the mortgage does not contain an

express waiver of the homestead exemption. Confining my analysis

to this narrow issue, I affirm the judgment of the bankruptcy

court. New Hampshire law grants homeowners a $30,000 homestead

exemption. N.H. Rev. Stat. Ann. § 480:1 (Supp. 1997). Although

the homestead interest generally is exempt from encumbrance, it

does not affect "mortgages which are made a charge thereon

according to law." N.H. Rev. Stat. Ann. § 480:4 (III) (1992).

Two types of mortgages are immune from the homestead exemption:

(1) a mortgage that is made "at the time of purchase to secure

payment of the purchase money;" and (2) any other mortgage that

"is executed by the owner and wife or husband, if any, with the

formalities reguired for the conveyance of land." N.H. Rev.

Stat. Ann. § 480:5-a (1992).

Although the statute does not expressly reguire that a

mortgage contain an explicit waiver of the homestead exemption to

defeat it, Anderson argues that such a reguirement must be

inferred. I reject this contention because it is inconsistent

with controlling precedent and sound principles of statutory

construction. In Perlev v. Woodbury, 76 N.H. 23 (1911), the New

Hampshire Supreme Court considered this issue when construing a

predecessor statute that was identical in all material respects

section 480:5-a. In holding that the predecessor statute did not

reguire a mortgage to contain an express waiver of the homestead

exemption to defeat the exemption, the court stated: What is there in the statute that requires a clause in a deed of a homestead place specifically releasing the homestead right? It is not necessary to search far for an answer, for there is nothing in the statute indicating any such intention. The statute simply provides that in a conveyance of a homestead place the homestead right shall not pass unless the deed is executed by the husband and wife jointly, if they are alive, with all the formalities required by law for the conveyance of real estate. . . .

Perlev, 76 N.H. at 25. Anderson makes a vain effort to

distinguish Perlev by arguing that the mortgage at issue in that

case was a purchase-money mortgage. This argument borders on the

frivolous as the language of the statute simply will not support

this distinction. Accordingly, I reject Anderson's argument

without further discussion.

In summary, the plain language of N.H. Rev. Stat. Ann.

§ 480:5-a provides that a mortgage that meets the requirements of

the statute is enforceable against a homestead exemption whether

or not the mortgage contains an express waiver of the exemption.

As Anderson does not otherwise argue that Verdolino's mortgage is

insufficient, I reject his challenge. The judgment of the

bankruptcy court is affirmed.

SO ORDERED.

Paul Barbadoro Chief Judge

April 14, 1998

-3- cc: Clerk, USBC-NH Lawrence Sumski, Esq. Mark Wolterbeek, Esq. Gerald Neiman, Esq.

-4-