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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________

Franklin District Court No. 2009-930

BANK OF NEW YORK MELLON v. SUSAN CATALDO & a. Submitted: September 8, 2010 Opinion Issued: November 10, 2010 Susan Cataldo and David Russell, by brief, pro se. Shechtman Halperin Savage, LLP, of Pawtucket, Rhode Island (Joseph A. Camillo on the brief), for the plaintiff. DUGGAN, J. The defendants, Susan Cataldo and David Russell, appeal a judgment of the Franklin District Court (Gordon, J.) awarding the plaintiff, Bank of New York Mellon (bank), a writ of possession. We affirm. The record supports the following facts. The bank purchased the defendants' mortgaged property at a foreclosure sale in December 2008 and later instituted eviction proceedings in district court. The defendants filed a plea of title to which the bank objected. The district court ruled: Susan Cataldo should file an action at the Superior Court with regard to title prior to the final hearing on December 1, 2009. If

such an action is filed then this case will be transferred for consolidation. In the [absence] of such a filing, the Court will proceed to the final hearing. After the defendants failed to file such an action in superior court, the district court issued judgment in the bank's favor, stating: "The only defense to [the bank's] claim is a question of title. This cannot be decided in this Court. The [bank] has provided documentation of its ownership as a result of foreclosure proceedings." This appeal followed. The defendants argue that filing a plea of title precluded the district court from acting further in the case. Our decision depends upon the interpretation of statutes, which presents a question of law that we review de novo. Kenison v. Dubois, 152 N.H. 448, 451 (2005). "We are the final arbiter of the intent of the legislature as expressed in the words of the statute . . . ." Id. "When the language of a statute is clear on its face, its meaning is not subject to modification." Dalton Hydro v. Town of Dalton, 153 N.H. 75, 78 (2005). RSA 540:17 and :18 (2007) detail the procedures district courts are to follow when a defendant raises the issue of title. RSA 540:17 states: If the defendant shall plead a plea which may bring in question the title to the demanded premises he shall forthwith recognize to the plaintiff, with sufficient sureties, in such sum as the court shall order, to enter his action in the superior court for the county at the next return day, and to prosecute his action in said court, and to pay all rent then due or which shall become due pending the action, and the damages and costs which may be awarded against him. RSA 540:18 states: After the filing of such plea and the entry of such recognizance no further proceedings shall be had before the municipal court, but the action may be entered and prosecuted in the superior court in the same manner as if it were originally begun there. See also RSA 502-A:34 (2010) (conferring on the district courts the jurisdiction, powers, and duties formerly possessed by the municipal courts). The filing of a plea of title in district court does not immediately halt the possessory proceedings in district court. Rather, RSA 540:17 requires that the defendant "forthwith recognize to the plaintiff, with sufficient sureties, in such

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sum as the court shall order, to enter his action in the superior court for the county at the next return day . . . ." RSA 540:18 provides that once the recognizance has been entered, no further proceedings shall be had in the district court and the action may be entered in the superior court. Thus, once the plea of title is filed in the district court and the defendant files such recognizance as ordered by the court, the possessory action in district court is stayed. A "recognizance" is a "bond or obligation, made in court, by which a person promises to perform some act or observe some condition." Black's Law Dictionary 1386 (9th ed. 2009). Thus, RSA 540:17 requires the defendant to promise to enter his action in the superior court for the county at the next return day and authorizes the district court to require that the defendant post a monetary bond which may be unsecured or secured. RSA 540:18 provides that once such a promise is made via the entry of a recognizance, no further proceedings shall be had in the district court and the action may be entered in the superior court. If the defendant then fails to enter his action in the superior court, however, we hold that the possessory proceedings in the district court may resume. To conclude otherwise would leave the plaintiff's possessory action in limbo

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