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                 THE SUPREME COURT OF NEW HAMPSHIRE

                           ___________________________

Rockingham
No. 2014-024


                           GEORGE MAROUN, SR. & a.

                                         v.

                DEUTSCHE BANK NATIONAL TRUST COMPANY

                         Argued: September 18, 2014
                      Opinion Issued: December 30, 2014

      Paul A. Petrillo, of Salem, by brief and orally, for the plaintiffs.


      Hinshaw & Culbertson LLP, of Boston, Massachusetts (Marissa I. Delinks
and Justin M. Fabella on the brief, and Ms. Delinks orally), for the defendant.

      CONBOY, J. The plaintiffs, George Maroun, Sr. (husband) and Edith
Maroun (wife), filed a petition seeking to enjoin the defendant, Deutsche Bank
National Trust Company (bank), from foreclosing on property owned by the
wife. The Superior Court (McHugh, J.) denied the plaintiffs’ summary
judgment motion and granted the bank’s cross-motion for summary judgment.
The plaintiffs appeal, and we affirm.

I.    Background

     The following facts are drawn from the trial court’s order or are otherwise
undisputed on the record before us. Prior to 1991, the plaintiffs owned
property in Salem (the property) together. In 1991, the husband executed a
deed (1991 deed) that conveyed his interest in the property to the wife. Ten
years later, in 2001, the husband executed a notarized affidavit (2001 affidavit),
which stated that at the time he executed the 1991 deed he was married to the
wife and that, “through accident, inadvertence or mistake, the deed did not
state that [he] released [his] homestead rights.” The husband purportedly
made the 2001 affidavit “to correct said omission.” The affidavit referenced
only the 1991 deed, and the correction did not purport to relate to any specific
mortgage on the property. The affidavit was filed with the Rockingham County
Registry of Deeds. Also in 2001, the husband and wife executed a mortgage on
the property (2001 mortgage), which stated: “I, George C. Maroun, husband of
mortgagor, hereby waive all rights of homestead and other interests herein.” In
2002, the husband and wife executed another mortgage on the property (2002
mortgage) that included the same language waiving the husband’s homestead
right and other interests in the property.

      In 2006, the wife, alone, executed both a promissory note and a mortgage
on the property (2006 mortgage), which are the subject of this litigation. The
mortgage document erroneously states that the wife is a single woman.
Although the mortgage document also states, “Borrower [wife], and Borrower’s
spouse, if any, release all rights of homestead . . . and . . . other interests in the
Property,” the husband did not sign the note or the mortgage document. In
2009, the mortgage was assigned to the bank. The bank took no action to
address the status of the husband’s homestead right.

       In 2008, the wife filed an individual Chapter 13 bankruptcy petition that
listed the property as an asset on the required schedule of real property. In
2010, the wife filed amended schedules of assets with the bankruptcy court in
her bankruptcy case that asserted that the husband possessed a homestead
right in the property and that the husband’s claim had a higher priority than
the 2006 mortgage. When the wife ultimately emerged from bankruptcy
protection, she was required to pay some prepetition arrearage amounts
secured by the 2006 mortgage and to make certain ongoing payments on the
debt. Following her discharge, the wife did not cure her arrears, and the bank
sought to foreclose upon the property.

       The plaintiffs filed a petition for injunctive relief in the superior court,
arguing that the husband’s homestead right has priority over the 2006
mortgage debt, and requesting a permanent injunction against the bank’s
foreclosure sale of the property. The parties agreed that there were no disputed
issues of material fact, and each moved for summary judgment. The trial court
granted the bank’s motion for summary judgment and denied the plaintiffs’
motion.

      On appeal, the plaintiffs argue that the trial court erroneously concluded
that the husband waived or released his homestead rights with respect to the


                                          2
2006 mortgage. The plaintiffs also contend that the trial court erred by not
finding that, pursuant to the doctrines of res judicata and collateral estoppel,
the bank is estopped from foreclosing on the husband’s homestead rights
based upon rulings in the wife’s bankruptcy case. Finally, despite the trial
court’s finding that an erroneous reference to the wife’s status as a single
woman in the 2006 mortgage document was probably a scrivener’s error, the
plaintiffs assert that the erroneous reference “is not without relevance.” We
address each argument in turn.

II.    Standard of Review

       In reviewing the trial court’s rulings on cross-motions for summary
judgment, “we consider the evidence in the light most favorable to each party in
its capacity as the nonmoving party and, if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law.” Granite State Mgmt. & Res. v. City of Concord, 165 N.H. 277,
282 (2013) (quotation omitted). “If our review of that evidence discloses no
genuine issue of material fact and if the moving party is entitled to judgment as
a matter of law, then we will affirm the grant of summary judgment.” Id.
(quotation omitted).

III.   Waiver of Homestead Right

      The trial court concluded that the husband’s notarized 2001 “affidavit
explaining that his intent in giving the deed was to release his homestead
rights” was “sufficient to validly waive his homestead rights” as to the 2006
mortgage. On appeal, the plaintiffs argue that the trial court erroneously
“imputed” the husband’s prior waivers of his homestead right, including the
waiver in the 2001 affidavit, to the 2006 mortgage because the homestead
statute “does not contain conditional words or phrases regarding when or how
frequently a written waiver or encumbrance of [the] homestead must occur to
be valid.”

      Resolving this issue requires us to interpret and apply the statutory
homestead exemption. See RSA 480:1, :3-a, :5-a (2013), :4 (Supp. 2014). The
interpretation and application of statutes present questions of law, which we
review de novo. Deyeso v. Cavadi, 165 N.H. 76, 79 (2013). In matters of
statutory interpretation, we are the final arbiters of the legislature’s intent as
expressed in the words of the statute considered as a whole. Chase v.
Ameriquest Mortgage Co., 155 N.H. 19, 22 (2007). When examining the
language of a statute, we ascribe the plain and ordinary meaning to the words
used. Id. We do not construe statutes in isolation; instead, we attempt to do
so in harmony with the overall statutory scheme. Id. When interpreting two or
more statutes that deal with a similar subject matter, we construe them so that
they do not contradict each other, and so that they will lead to reasonable
results and effectuate the legislative purpose of the statutes. Id. Statutory


                                        3
homestead protections are universally held to be liberally construed to achieve
their public policy objective. See Deyeso, 165 N.H. at 80.

        In New Hampshire, “[e]very person is entitled to $100,000 worth of his or
her homestead, or of his or her interest therein, as a homestead.” RSA 480:1.
“The homestead right is generally exempt from attachment or encumbrance.”
Stewart v. Bader, 154 N.H. 75, 88 (2006). “The purpose of the homestead
exemption is to secure to debtors and their families the shelter of the
homestead roof.” Deyeso, 165 N.H. at 79; see also Gunnison v. Twitchel, 38
N.H. 62, 69 (1859) (“[T]he great and paramount object of the homestead act [is]
. . . to protect and preserve inviolate . . . a family home . . . .”). “The exemption
protects the family from destitution, and protects society from the danger of its
citizens becoming paupers.” Deyeso, 165 N.H. at 79-80 (quotation, brackets,
and ellipsis omitted). “It also promotes the stability and welfare of the state by
encouraging property ownership and independence on the part of the citizen.”
Id. at 80 (quotation and brackets omitted).

       The statutory protection of the homestead right also extends to spouses
who occupy the homestead but are not title owners of the property: “The owner
and the husband or wife of the owner are entitled to occupy the homestead
right during the owner’s lifetime,” and, after the owner’s death, the surviving
spouse is entitled to the homestead right during his or her lifetime. RSA
480:3-a; see Bothell v. Sweet, 6 A. 646, 648 (N.H. 1886) (concluding that
plaintiff’s homestead right was not affected by three mortgages in which she
did not join because she “preserved her homestead right by occupation”). The
statute, therefore, contemplates a homestead right in both spouses, even when
only one spouse legally owns the homestead. See RSA 480:3-a.

       In accord with the statute’s purpose, RSA 480:4 states that “[t]he
homestead right is exempt from attachment during its continuance from levy or
sale on execution, and from liability to be encumbered or taken for the
payment of debts.” The statute provides only four exceptions to the homestead
right exemption: (1) “the collection of taxes”; (2) “the enforcement of liens of
mechanics and others for debts created in the construction, repair or
improvement of the homestead”; (3) “the enforcement of mortgages which are
made a charge thereon according to law”; and (4) “the levy of executions as
provided in this chapter.” RSA 480:4; see Deyeso, 165 N.H. at 79.
Additionally, “[n]o deed shall convey or encumber the homestead right, except a
mortgage made at the time of purchase to secure payment of the purchase
money, unless it is executed by the owner and wife or husband, if any, with the
formalities required for the conveyance of land.” RSA 480:5-a. Moreover, if a
deed is signed by both spouses with the requisite formalities, there is no
requirement that the text of the deed contain an express waiver of the
homestead right. See Verdolino v. Anderson, 12 F. Supp. 2d 205, 206 (D.N.H.
1998) (rejecting argument that a mortgage document must contain an explicit
waiver of the homestead exemption); Perley v. Woodbury, 76 N.H. 23, 25-26


                                          4
(1911) (recognizing that if the statutory requirements are satisfied, an express
waiver is unnecessary to encumber or convey the homestead right).

       Here, there is no dispute that the husband did not sign the 2006
mortgage. Therefore, the 2006 mortgage did not comply with RSA 480:5-a and
did not convey or encumber any homestead right that the husband had in the
property. See RSA 480:5-a. The bank does not challenge this proposition but
argues, instead, that the husband did not have a homestead right to assert in
2006 because he had waived all his interest in the property, including his
homestead right, by virtue of the waiver contained in his 2001 affidavit. We
agree.

       The 2001 affidavit waiver is distinguishable from the 2001 and 2002
mortgage waivers executed in compliance with RSA 480:5-a. The two mortgage
waivers cannot be interpreted to act upon any other conveyance or
encumbrance. Cf. Chase, 155 N.H. at 22-23 (concluding mortgage could not
constitute a charge on homestead according to law because it did not satisfy
statutory requirements of RSA 477:3 and RSA 480:5-a). In contrast, by
executing the 2001 affidavit, the husband purported to relinquish his
homestead right, not with respect to a specific encumbrance, but with respect
to the conveyance of his entire interest in the property to his wife. Thus, the
issue before us is whether that waiver was effective as to the 2006 mortgage,
notwithstanding the fact that the husband did not sign the mortgage document
and continued to reside in the property with his wife. See RSA 480:3-a, :4.

       Waiver is the voluntary or intentional abandonment or relinquishment of
a known right. See Debonis v. Warden, N.H. State Prison, 153 N.H. 603, 605
(2006). “[T]he general principle, recognized by repeated decisions and by
common sense, is, that a provision, made by law for the benefit of particular
individuals, may be waived by them.” Fletcher v. Neally, 20 N.H. 464, 466
(1846); see, e.g., Debonis, 153 N.H. at 605 (noting that petitioner waived his
statutory right to a revocation hearing); Duke/Fluor Daniel v. Hawkeye
Funding, 150 N.H. 581, 584 (2004) (recognizing that statutory mechanic’s lien
can be waived by contract). Statutory exemptions, such as the homestead
right, are generally considered personal privileges of the debtor. See Pappas v.
Capps, 263 P. 411, 411 (Colo. 1928) (considering automobile exemption);
Wyman v. Gay, 37 A. 325, 326 (Me. 1897) (addressing exemption of certain
chattels); Currier v. Sutherland, 54 N.H. 475, 486 (1874) (recognizing that
“[t]he exemption of a homestead from attachment or levy is a personal privilege
which the law gives to the owner”). Other jurisdictions have concluded that
“[o]ne has a right to waive an exemption in his own favor unless he also holds it
for the benefit of others or unless such waiver is against public policy or some
constitutional or statutory restriction.” In re Kline’s Estate, 24 N.W.2d 481,
483 (Iowa 1946) (concluding widow waived deceased husband’s exemption for
automobile by selling vehicle and converting asset into nonexempt property);
see also 31 Am. Jur. 2d Exemptions § 277 (2012) (noting that, “apart from an


                                        5
attempt to do so by executory agreement,” a debtor “has the option to claim or
waive or may be estopped to assert” an exemption unless “it would be contrary
to public policy”).

       Although, generally, statutory rights may be waived, the legislature has
the power to limit, or even prohibit such waivers. See, e.g., RSA 275:50 (2010)
(prohibiting waiver of statutory right to payment of wages, except as provided
elsewhere in the statute); RSA 540:28 (2007) (declaring any waiver by tenant of
rights under RSA chapter 540 to “be null and void”). Nothing in RSA chapter
480, however, expressly prohibits a waiver of the homestead right. Further,
limited waivers of the homestead right are specifically provided for under other
statutory provisions. See RSA 477:44, IV (2013) (contemplating waiver of
homestead right with respect to a security interest in manufactured housing);
RSA 480:5-a (providing approach for conveying or encumbering the homestead
right); RSA 560:14 (2007) (allowing waiver of homestead right after the right
vests in surviving spouse upon the owner-spouse’s death); RSA 560:15, :16
(2007) (allowing waiver of homestead right before marriage). The language of
the homestead right statute is also instructive. It provides that “[e]very person
is entitled to $100,000 worth of his or her homestead, or of his or her interest
therein, as a homestead.” RSA 480:1 (emphasis added). Thus, the statute
casts the homestead right as a personal privilege, which the homeowner and
spouse are entitled to exercise. See Reed v. Union Bank of Winchester, 70 Va.
(29 Gratt.) 719, 724-27 (1878) (concluding that waiver of exemption was
permitted under Virginia constitution).

      Therefore, we hold that homestead rights, like other statutory rights, may
be waived by the holder of the right, unless such a waiver would be against
public policy or some constitutional or statutory restriction. See Marine Credit
Union v. Detlefson-Delano, 830 N.W.2d 859, 865 (Minn. 2013) (recognizing that
the Minnesota Supreme Court has “said that homestead rights may be
waived”). However, given the protective purpose of the homestead right, we
further hold that there is a presumption against such a waiver, and a party
may waive the homestead right broadly, as was the case here, “only by an act
which evidences an unequivocal intention to do so.” Id. (quotation omitted). Of
course, compliance with RSA 480:5-a, which allows for conveyance or
encumbrance of the homestead right by deed, obviates the need for proof of
such an unequivocal intention. See Verdolino, 12 F. Supp. 2d at 206; Perley,
76 N.H. at 25-26. Thus, if a mortgage document is signed by both spouses,
“with the formalities required for the conveyance of land,” no further evidence
of waiver is required. RSA 480:5-a.

      Whether the husband waived his homestead right here turns on the
language of the 2001 affidavit and the circumstances surrounding its filing. In
the 2001 affidavit, the husband states: “[T]hrough accident, inadvertence or
mistake, the [1991] deed did not state that I released my homestead rights.
This affidavit is given to correct said omission.” Thus, the document expressly


                                        6
conveys the husband’s unequivocal intention to waive his homestead right with
respect to the 1991 conveyance to his wife.

       Because we have concluded that a waiver is permissible under the
homestead right statute, and the plaintiffs have not argued that this waiver
violated any other statutory or constitutional provision, we next consider
whether this waiver violates public policy. Historically, we have been protective
of the homestead right when an owner-spouse has attempted to relinquish the
right without the consent of the non-owner spouse. See, e.g., Atkinson v.
Atkinson, 37 N.H. 434, 436 (1859) (recognizing wife’s homestead right over
petitionee’s claim of ownership through deed executed only by the husband,
notwithstanding wife’s absence from the homestead, because “she was
compelled by ill treatment to abandon her husband”). Our solicitude reflects
the fact that the homestead laws were primarily enacted for the protection of
the non-owner spouse and dependent children. See Meyer Bros. Drug Co. v.
Bybee, 78 S.W. 579, 584 (Mo. 1904). Here, the non-owner spouse expressly
relinquished the statutory protections under circumstances that bear no
indicia of coercion, fraud, economic abuse, or other misconduct by the wife.
Thus, we do not conclude that the waiver, in and of itself, violates the policy
underlying the homestead right.

      Further, although the trial court found that the 2001 affidavit was
executed at the request of the mortgagee, the record is unclear as to which
mortgagee requested the affidavit. Moreover, the plaintiffs do not allege that
the 2001 affidavit was coerced or that the 2001 mortgage was conditioned
upon the husband relinquishing all future claims to a homestead exemption.
We, consequently, conclude that the affidavit waiver in this case did not violate
the policy underlying the homestead right.

       Accordingly, we conclude that the husband effectively waived his
homestead right by executing the 2001 affidavit, and that he no longer had a
right that he could assert against future creditors. Because the husband did
not have a homestead right in the property when the wife executed the 2006
mortgage, the mortgage deed was not required to be signed by the husband in
order to comply with RSA 480:5-a and to be a “charge thereon according to
law.” RSA 480:4; see Walbridge v. Estate of Beaudoin, 163 N.H. 804, 806
(2012). We, therefore, hold that the husband’s waiver of his homestead right
was effective as to the 2006 mortgage, and that the trial court did not err by
concluding “that any homestead rights possessed by [the husband are]
subordinate to the mortgage held by [the bank].”

IV.   Res Judicata and Collateral Estoppel

      The plaintiffs next argue that res judicata and collateral estoppel prevent
the bank from foreclosing on the property due to what they assert is the
preclusive effect of the bankruptcy court’s order confirming the wife’s Chapter


                                        7
13 plan. However, in their motion for summary judgment, the plaintiffs argued
to the trial court that the bank should be “judicially estopped from asserting an
alternate position from that taken by the [wife] in her earlier bankruptcy case.”
(Emphasis added.) But see In re Zachary G., 159 N.H. 146, 152 (2009)
(recognizing that judicial estoppel “protects judicial integrity by preventing a
party from prevailing in one phase of a case using one argument and then
relying upon a contradictory argument to prevail in another phase” (quotation
and brackets omitted)). The plaintiffs made no argument based upon res
judicata or collateral estoppel. Although the trial court observed that the
bankruptcy court’s decision on the bank’s motion for relief from stay could
have no preclusive effect, it rejected the plaintiffs’ judicial estoppel argument –
the only argument asserted by the plaintiffs. The plaintiffs do not appeal the
trial court’s ruling on their judicial estoppel argument. Because the plaintiffs
did not argue res judicata or collateral estoppel before the trial court, and never
filed a motion for reconsideration addressing the trial court’s observation
regarding the lack of preclusive effect of the bankruptcy court’s decision, we
conclude that this issue was not properly preserved for appeal. See Singer
Asset Finance Co. v. Wyner, 156 N.H. 468, 472 (2007) (“It is a long-standing
rule that parties may not have judicial review of matters not raised in the
forum of trial.” (quotation omitted)); see also Gray v. Kelly, 161 N.H. 160, 164
(2010) (stating that both res judicata and collateral estoppel are affirmative
defenses); Super. Ct. Civ. R. 9(d) (recognizing that failure to plead affirmative
defenses constitutes waiver).

       Moreover, even assuming that the plaintiffs preserved this argument for
appeal, they have not persuaded us that res judicata or collateral estoppel bars
the bank’s challenge to the husband’s claimed homestead right. Both res
judicata and collateral estoppel rest upon the principle that, in order for a prior
decision to be given preclusive effect against a party as to a particular claim,
that party must first have had a full and fair opportunity to litigate the claim.
See Kremer v. Chemical Construction Corp., 456 U.S. 461, 480-81 & n.22
(1982); Gonzalez v. Banco Cent. Corp., 27 F.3d 751, 758 (1st Cir. 1994). When
determining whether a party had a full and fair opportunity to litigate the claim
in the first proceeding, courts consider the party’s incentive to litigate. See
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331-32 (1979) (noting, among
other factors, that “petitioners had every incentive to litigate the SEC lawsuit
fully and vigorously” and concluding that they “received a ‘full and fair’
opportunity to litigate their claims”); S.E.C. v. Monarch Funding Corp., 192
F.3d 295, 305 (2d Cir. 1999) (considering incentive to litigate with respect to
collateral estoppel in sentencing hearings); Restatement (Second) of Judgments
§ 28 (1982) (recognizing that inadequate “opportunity or incentive to obtain a
full and fair adjudication in the initial action” is an exception to issue
preclusion).

     Here, the wife’s amended bankruptcy schedules listed as a “claim” the
husband’s homestead right. This right, however, was based only upon an


                                        8
“inchoate and imperfect right” in the property. Cross v. Weare, 62 N.H. 125,
126 (1882) (quotation omitted). Although the wife’s amended Chapter 13 plan
included a plan to cure her home mortgage arrearage and stated that “[a]ll
secured creditors shall retain the liens securing their claims unless otherwise
stated,” the plan made no mention of the husband’s homestead right.
Therefore, the husband’s homestead right would only emerge as an issue for
the bank if the wife defaulted on the terms of her Chapter 13 plan and if the
husband still resided with his wife in the property at the time of default. Under
the circumstances, we cannot conclude that the mere possibility of a post-
confirmation default provided the bank sufficient incentive to litigate the
husband’s homestead claim in the wife’s bankruptcy proceeding. See In re
Carvalho, 335 F.3d 45, 50 (1st Cir. 2003) (“A debtor’s post-confirmation
default, like many other post-confirmation events, does not come within the
preclusive reach of a confirmed plan.”); cf. Costanzo v. Harris, 427 P.2d 963,
967 (Wash. 1967) (declining to require judgment creditor to challenge validity
of homestead claim before the end of the redemption period because the
creditor “has no way to anticipate whether the judgment debtor will choose to
redeem”). We, therefore, decline to apply res judicata or collateral estoppel to
bar the bank’s challenge to the husband’s homestead right.

V.    Misstatement in 2006 Mortgage Document

       The plaintiffs also argue that the trial court erred by concluding that the
misstatement in the 2006 mortgage, which referenced the wife as a single
woman, was without independent legal significance. The trial court found that
the reference to the wife as a single woman was an “erroneous representation”
and concluded that “the probability is that there was a scrivener’s error with
respect to her marital status,” which neither she nor the bank identified. The
plaintiffs do not dispute these findings; rather, they argue that enforcing the
2006 mortgage with the error is inconsistent “with the statutory scheme
requiring the mortgagor and his/her spouse, in order to properly encumber the
homestead right, to execute the [encumbrance] of a homestead with the
formalities of a land conveyance.” See RSA 480:5-a. They further assert that
the description of the wife’s marital status in the 2006 mortgage document “is
not without relevance” because “[r]eferencing the [wife] simply as ‘a single
woman’ presumes that a bona fide purchaser or future mortgagees need look
no further, perhaps to their peril.” We are not persuaded.

       RSA 480:5-a requires that, to convey or encumber the homestead right, a
deed must be executed “with the formalities required for the conveyance of
land.” The statutory formalities required for the conveyance of land include
execution, acknowledgement, and recording, see RSA 477:1, :3, :3-a (2013), as
well as compliance with various notification and disclosure requirements, see
RSA 477:4-a to :4-h (2013). RSA chapter 477, which sets forth the
requirements for conveyances of real estate, does not contain a provision
invalidating deeds or mortgages that contain clerical errors, and we will not


                                        9
read such a requirement into the statute. See Landry v. Landry, 154 N.H. 785,
788 (2007). Accordingly, we find no reason to conclude that the erroneous
reference to the wife’s marital status has any legal significance with respect to
whether the 2006 mortgage complied with RSA 480:5-a or to the bank’s ability
to foreclose on the property.

                                                  Affirmed.

      DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.




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