Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 14-1195
JOSEPH CASTAGNARO,
Plaintiff, Appellant,
v.
THE BANK OF NEW YORK MELLON,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Barron, Circuit Judges.
Stephen T. Martin, with whom The Law Offices of Martin &
Hipple, PLLC was on brief, for appellant.
Elizabeth T. Timkovich, with whom Phoebe N. Coddington and
Winston & Strawn LLP were on brief, for appellee.
Stephanie A. Bray and New Hampshire Legal Assistance on brief,
amicus curiae in support of appellant.
May 11, 2016
Per curiam. In this appeal from an order dismissing his
complaint seeking to prevent foreclosure, appellant Joseph
Castagnaro argued primarily that the foreclosing entity lacked the
authority to foreclose, because that entity held only the mortgage
on the property and not the promissory note that Castagnaro had
executed in favor of the original lender. We certified questions
to the New Hampshire Supreme Court, see Castagnaro v. Bank of N.Y.
Mellon, 772 F.3d 734, 739-40 (1st Cir. 2014), including whether
New Hampshire law requires the foreclosing entity to hold both the
mortgage and the note, and
[i]f so, can an agency relationship between the
note holder and the mortgage holder meet that
requirement, and does language in the mortgage
naming the mortgagee "nominee for the lender and
lender's successors and assigns" suffice on its own
to show an adequate agency relationship?
Id. at 739.
We have received an answer from the New Hampshire
Supreme Court to our questions. See Castagnaro v. Bank of N.Y.
Mellon, 132 A.3d 1202 (N.H. 2016). Relying on its decision in
Bergeron v. N.Y. Cmty. Bank, 121 A.3d 821 (N.H. 2015), the New
Hampshire Supreme Court held that any requirement under New
Hampshire law that the note holder and foreclosing mortgage holder
be the same is satisfied by an agency relationship, and that
"language in the mortgage naming the mortgagee 'nominee for lender
and lender's successors and assigns'" is sufficient to show the
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required agency relationship. See Castagnaro, 132 A.3d at 1202.
In light of the New Hampshire Supreme Court's response to our
questions we affirm the district court's dismissal of this action.
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