Probate & Trust Litigation

A resource for lawyers and the public in Massachusetts and New Hampshire for information on will contests, trust disputes, guardianships, conservatorships, elder exploitation, fiduciary duty claims, and other probate litigation disputes.

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Mills: Unresolved Questions

In In re Estate of Mills, 167 N.H. 125 (2014), the Court clarified that a mortgagee has no duty under RSA chapter 556 to exhibit a demand within six months or to file suit within one year of the grant of administration in order to foreclose. The Court did not address whether the creditor must honor these deadlines to preserve the right to seek a deficiency judgment following foreclosure.

The Court held that the statutory deadlines for exhibition and suit did not apply because the mortgagee was exercising a vested title right under the mortgage and did not need judicial relief to enforce its claim. Unlike most mortgages, the one in Mills was non-recourse, providing that the “Borrower shall have no personal liability for payment of the debt secured by this Security Instrument” and “Lender may enforce the debt only through the sale of the Property.” Id., p. 126.   The decision, thus, does not address the more common situation where the borrow is liable for any deficiency remaining after foreclosure.   Since this liability would be collectible through litigation, the exhibition and suit requirements of RSA chapter 556 arguably apply. Note though that unless and until the foreclosure sale, whether a deficiency claim even exists will not be known. The creditor may be wise to seek relief under RSA 556:6.

(Note: Ralph Holmes is currently retired from McLane Middleton. For information on this or other probate litigation issues, please contact Alexandra Cote at