Castagnaro v. Bank of New York Mellon

HOWARD, Circuit Judge.

This case presents the labyrinthine question of whether New Hampshire law requires a foreclosing entity to hold both mortgage and note before it can exercise a power of sale under N.H.Rev.Stat. Ann. (“RSA”) § 479:25. In turn, that issue splinters into two distinct inquiries: whether either the common law or state statute mandates the unity of the two and, if so, whether parties can override that baseline rule by agreement. Because controlling state precedent does not provide definitive guidance on how to resolve these queries, and since consequential federalism interests…