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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-southern judicial district
No. 95-717
DEL NORTE, INC.
v.
ARTHUR J. PROVENCHER
December 31, 1997
Haughey, Philpot & Laurent, P.A., of Laconia (Paul C. Bordeau on the brief and orally), for the plaintiff.
Winer and Bennett, of Nashua (Gary A. Braun on the brief and orally), for the defendant.
Halvorsen & O'Connell, P.C., of Manchester (Pamela G. Van Horn and John F. O'Connell on the brief), for YYY Corp., as amicus curiae.
JOHNSON, J. The plaintiff, Del Norte, Inc. (Del Norte), appeals an order of the Superior Court (Dalianis, J.) holding that the plaintiff's predecessor in interest, Mundaca Investment Corporation (Mundaca), was barred by the statute of limitations from bringing an action against the defendant, Arthur J. Provencher, on a promissory note. We reverse and remand.
In ruling on the parties' cross-motions for summary judgment, the trial court accepted the following facts. On or about April 12, 1990, the defendant executed a $15,000 demand promissory note (the note), secured by a mortgage on real property, in favor of BankEast. This mortgage (the second mortgage) was subordinate to a prior mortgage given by the defendant to BankEast (the first mortgage) on the same property. The defendant last made a payment on the note on or about November 27, 1990. On or about February 5, 1993, the first mortgage was foreclosed.
Mundaca acquired the note from the Federal Deposit Insurance Corporation (FDIC), as receiver for BankEast, by assignment dated August 19, 1993. On March 22, 1994, Mundaca made a demand on the defendant for payment of the note. Thereafter, on June 1, 1994, Mundaca sued the defendant to recover on the note. Both parties moved for summary judgment.
The trial court held that the plaintiff was not entitled to the twenty-year statute of limitations provided for actions upon notes secured by mortgages, see RSA 508:2, :6 (1997), because foreclosure of the first mortgage extinguished Mundaca's rights under the second mortgage. The court further held that the six-year statute of limitations in RSA 382-A:3-118 (1994) did not apply because the effective date of the statute occurred after the defendant's right to plead the expiration of the statute of limitations under RSA 508:4, I, had vested, and that retroactive application would violate the defendant's vested rights. Finally, the court held that Mundaca could not rely on the six-year statute of limitations provided in 12 U.S.C.