          United States Court of Appeals
                        For the First Circuit


Nos. 17-1815, 17-1936


              DEUTSCHE BANK NATIONAL TRUST COMPANY,
                Trustee for FFMLT Trust 2005-FF2,
      Mortgage Pass-Through Certificates, Series 2005-FF2,

              Plaintiff, Appellant/Cross-Appellee,

                                 v.

                          JENNIFER L. PIKE,

              Defendant, Appellee/Cross-Appellant.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

      [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]


                               Before

                 Torruella, Lipez, and Thompson,
                         Circuit Judges.


     Kevin P. Polansky, with whom Christine M. Kingston and Nelson
Mullins Riley Scarborough LLP were on brief, for appellant.
     Stephen T. Martin, with whom The Law Offices of Martin &
Hipple, PLLC was on brief, for appellee.


                          February 19, 2019
           LIPEZ, Circuit Judge.       In this diversity case, Deutsche

Bank National Trust Company contends that the district court erred

in concluding that its mortgage interest in a property in New

London, New Hampshire, is subject to a homestead right of the

property's resident, Jennifer Pike.               In a cross-appeal, Pike

contends that the district court erred in denying her post-judgment

motion for attorney's fees.      After careful review, we affirm both

the rejection of Deutsche Bank's claims and the denial of Pike's

request for attorney's fees.

                                      I.

A. Factual Background

           William and Jennifer Pike were married in 2000.1                     In

2001, William bought the property at 34 Dogwood Lane in New London

("the Property").         Only William was listed on the deed, but

Jennifer continuously resided at the address from the time of

purchase through the filing of the present suit.              In 2003, William

obtained a loan from New Century Mortgage Corporation secured by

a   mortgage   on   the   Property.        Both   William's    and       Jennifer's

signatures were on this mortgage, which included a provision

stating that "[b]orrower[] and [b]orrower's spouse .                 .    . release

all rights of homestead in the Property."            Jennifer disputes that




      1For ease of reference, we will refer to William Pike as
"William" and Jennifer Pike as "Jennifer."


                                  - 2 -
she signed the New Century mortgage and asserts that she only later

became aware of its existence.

             In late 2004, William obtained another loan, secured by

the Property, from First Franklin Financial Corporation, pursuant

to which he again waived his homestead right.      The parties agree

that William did not obtain the First Franklin loan through fraud

or other egregious misconduct.     Jennifer did not sign the note or

mortgage.2    A few months later, the New Century loan balance was

paid off and that mortgage was discharged.

             The Pikes subsequently executed several transfers of the

Property between William, Jennifer, and a family trust.           The

Property was deeded back to William in 2007.3     The First Franklin

mortgage was assigned to Deutsche Bank in 2009.4

             The Pikes were divorced by decree on July 3, 2013.   The

decree included the following provision regarding the Property




     2 Although the First Franklin mortgage document stipulates
that the borrower and the "borrower's spouse" release their
homestead rights, the parties appear to assume that this provision
would not be effective against a non-signatory spouse, and we
proceed on that assumption.

     3 William filed for bankruptcy subsequent to these transfers,
but the parties do not contend that his bankruptcy is relevant to
the issues on appeal.

     4 The appellant's full name is Deutsche Bank National Trust
Company, Trustee for FFMLT Trust 2005 FF2, Mortgage Pass-Through
Certificates, Series 2005-FF2.


                                 - 3 -
(strikethroughs in original; initialed, handwritten addition in

italics):

     14. Marital Homestead:

            A. Jennifer Pike is awarded the exclusive use and

     possession    of   the   marital   homestead    located    at    34

     Dogwood Lane, New London, New Hampshire free and clear

     of any interest of William Pike.

            B.   Jennifer may remain in the home until it goes

     into foreclosure, or [their son] graduates high school.

            C. If the house does not go [into] foreclosure and

     the parties can sell the home, the parties shall list

     the house for sale once [their son] graduates high

     school.     The Parties will share equally any equity in

     the home.

            D.   The Parties will share equally the cost of any

     necessary home repairs over $500.              If a repair is

     necessary, Jennifer will inform William of the repair

     via email and provide him an explanation of the repair

     needed and include a quote for the work, if possible.

     William will forward his share of the repair cost to the

     contractor    directly    if   possible.   If     that    is    not

     possible, he will give his share of the repair cost to

     Jennifer within 30 days of the repair.         [With respect to

     repairs necessary to preserve the habitability of the


                                    - 4 -
      house, Jennifer will give notice to Bill of the need,

      and upon Bill's review, and inspection, and agreement

      that the repair is necessary, Bill shall share up to 50%

      of the cost of the Repair.]

The   decree    also   provides,    "[e]xcept   as   otherwise   provide[d]

herein, each party shall sign and deliver to the other party any

document that is needed to fulfill or accomplish the terms of this

Decree within thirty (30) days of the request to do so."

         Deutsche      Bank   began    foreclosure   proceedings   on   the

Property on July 11, 2013.         About two weeks later -- on July 26 -

- William deeded the Property to Jennifer, and the deed was

recorded shortly thereafter.          The deed states, "[t]his conveyance

is in conformance with [the] divorce decree in the Matter of

Jennifer Pike and William T. Pike, Jr."

            Jennifer subsequently filed a complaint in state court

asserting a homestead right in the Property and seeking to enjoin

Deutsche Bank from foreclosing.          The state court entered summary

judgment in Deutsche Bank's favor after determining that the Bank

had standing to foreclose, and that Jennifer's assertion of a

homestead right was premature.           The New Hampshire Supreme Court

affirmed.      See Pike v. Deutsche Bank Nat'l Tr. Co., 121 A.3d 279

(N.H. 2015).




                                      - 5 -
B. Procedural Background

                Shortly after the conclusion of the litigation in state

court, Deutsche Bank filed this suit in federal court seeking a

declaratory judgment either that its interest in the Property is

not subject to Jennifer's homestead right (Count I), or that it is

entitled to equitable subrogation "as to the amount it paid to

discharge the prior mortgage" (Count II).                     In support of its

equitable       subrogation       claim,    Deutsche   Bank   contends    that,   as

successor to First Franklin, it is entitled to step into the shoes

of New Century -- the 2003 lender -- and benefit from Jennifer's

waiver of her homestead right in the New Century mortgage because

funds from the First Franklin loan -- obtained in 2004 -- were

used       to   pay   off   the    New     Century   loan.     Jennifer    pleaded

counterclaims asserting the priority of her homestead right over

Deutsche Bank's interest.5           The parties eventually cross-moved for

summary judgment.

                Jennifer argued that she had a homestead right in the

Property from the date of its purchase by virtue of her marriage

to William and that the divorce decree did not automatically

terminate her right.         She also argued that Deutsche Bank could not

demonstrate the presence of every element required for equitable

subrogation under New Hampshire law.                   In particular, Jennifer


       5
       Jennifer later voluntarily dismissed counterclaims                         for
intentional and negligent infliction of emotional distress.


                                           - 6 -
asserted that there was a material factual dispute concerning

whether the First Franklin loan funds were used to pay off the New

Century loan.       She further argued that it would be unjust for

Deutsche Bank to rely on the homestead waiver in the New Century

mortgage given her contention that she had not in fact signed that

mortgage.

            For    its   part,    Deutsche       Bank   argued    that   Jennifer's

homestead right in the Property was extinguished or waived by the

transfers after its purchase -- that is, the transfers of the

Property between William, Jennifer, and a family trust before it

was deeded back to William in 2007 -- or by the divorce decree.

As to equitable subrogation, Deutsche Bank contended that all

necessary elements were satisfied, and that Jennifer could not

contest her signature on the New Century mortgage because she had

not done so in the prior state litigation.

            The    district      court    concluded      that    factual     disputes

remained concerning the effect of the divorce decree, and it

therefore denied the parties' cross-motions for summary judgment

and scheduled a bench trial.             In her pretrial briefing, Jennifer

argued for the first time that Deutsche Bank could not invoke

equitable   subrogation       because      it    had    not   shown   that   William

obtained the First Franklin loan by fraud or other egregious

misconduct.       In response, Deutsche Bank argued that fraud is not

a precondition to equitable subrogation under New Hampshire law.


                                         - 7 -
           In a pretrial order issued without prior notice to the

parties,   the   district   court   explained    that     it    viewed   the

applicability of equitable subrogation as "an issue of law that

can   be    resolved   without      further     factual        development."

Accordingly, the court ruled that, "as a matter of [New Hampshire]

law, the circumstances in this case do not meet the threshold

requirement of fraud or misconduct that would support the use of

equitable subrogation to overcome the protections provided by" the

homestead right.

           The district court also cancelled the bench trial on the

remaining issue concerning the effect of the divorce decree on

Jennifer's homestead right.      However, it granted Deutsche Bank's

request to further brief the equitable subrogation issue and agreed

to reconsider the viability of the claim. The court further stated

that the bench trial would be rescheduled "[i]f the equitable

subrogation claim is found to be viable."

           Deutsche Bank then moved for reconsideration of the

equitable subrogation decision, arguing that fraud is not an

element of equitable subrogation and that, in any event, Jennifer

had forfeited the fraud argument by not raising it earlier.              The

district court denied the motion.        Notably, the court directly

engaged with Deutsche Bank's arguments instead of taking the

standard approach to a motion for reconsideration and considering




                                 - 8 -
only    whether   the   Bank    had   identified   flaws    in   the   original

decision.

            After   the   parties     submitted    briefs   on    whether   the

divorce extinguished Jennifer's homestead right, the district

court issued a final order holding that (1) Jennifer's homestead

right was not extinguished by the divorce, (2) her homestead right

takes priority over Deutsche Bank's mortgage, and, hence, (3)

"Jennifer may assert her homestead interest in the [P]roperty

.   .   . if and when Deutsche Bank forecloses." The court, however,

dismissed Jennifer's quiet title counterclaim because she had not

demonstrated that "title to the [P]roperty can be settled in her

exclusive of Deutsche Bank's mortgage interest."                 Deutsche Bank

timely appealed, contending that the district court erred in (1)

"sua sponte" dismissing the Bank's equitable subrogation claim on

the basis that it had not demonstrated the First Franklin mortgage

was acquired by fraud, and (2) ruling that Jennifer has a homestead

right superior to the Bank's mortgage.

            Jennifer subsequently moved for attorney's fees and

costs pursuant to Federal Rule of Civil Procedure 54(d). The court

granted her uncontested request for costs but denied her request

for attorney's fees.           We consolidated Jennifer's timely appeal

with Deutsche Bank's appeal.




                                      - 9 -
                                      II.

A. The District Court's "Sua Sponte" Rulings

          Deutsche Bank contends that the district court erred in

"sua sponte" (1) dismissing its claim for a declaratory judgment

that it is entitled to equitable subrogation, and (2) cancelling

the bench trial.      In other words, Deutsche Bank faults the court

for taking these actions on its own initiative and without prior

notice to the parties.

          The      district   court    arguably   caught     Deutsche        Bank

unawares when it dismissed the equitable subrogation claim based

on the pretrial briefing. However, even assuming error, we discern

no prejudice to the Bank.       See Watchtower Bible & Tract Soc'y of

N.Y., Inc. v. Municipality of San Juan, 773 F.3d 1, 13 (1st Cir.

2014) ("[A] sua sponte dismissal will not be set aside where the

aggrieved party cannot show any prejudice.").                    Deutsche Bank

addressed Jennifer's argument that fraud was required to apply

equitable subrogation in its pretrial briefs and was given the

opportunity   to    provide    additional    briefing      after    the     court

dismissed the equitable subrogation claim.              Although Deutsche

Bank's   post-dismissal       brief    was   styled   as     a     motion     for

reconsideration, the district court did not hold Deutsche Bank to

the stringent standard for this type of motion.                  See Palmer v.

Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (noting that a

party seeking reconsideration of a legal ruling must demonstrate


                                  - 10 -
that "the rendering court committed a manifest error of law").

Rather, the district court addressed the merits of Deutsche Bank's

arguments and again concluded that equitable subrogation did not

apply as a matter of law.            Thus, even assuming the arguable

proposition that the court erred by initially dismissing the

equitable   subrogation    claim    sua    sponte,   the   court   adequately

corrected any error.6

            Regarding the district court's decision to cancel the

bench trial, the simple fact is that the district court did so

after a pretrial conference at which, according to the district

court, "counsel and the court agreed that there are no factual

issues remaining in the case for the bench trial."            To the extent

Deutsche    Bank   now   contends   that     the   court   misunderstood   or

misrepresented the Bank's position, it has waived that argument by

failing to raise it before the district court and by failing to

properly develop the record on appeal.             See Barilaro v. Consol.

Rail Corp., 876 F.2d 260, 263 (1st Cir. 1989) (stating that we

"cannot use counsel's allegations regarding what occurred at the

pretrial conference as grounds for appeal").




     6 We are unconvinced by Deutsche Bank's analogy of the
district court's actions to those of the court in Berkovitz v.
HBO, Inc., 89 F.3d 24 (1st Cir. 1996). Unlike in Berkovitz, the
district court did not substantially change the rationale for its
ruling from the initial dismissal to the denial of Deutsche Bank's
motion for reconsideration. See id. at 30-31.


                                    - 11 -
B. Jennifer's Homestead Right

          Deutsche Bank argues that the district court erred in

determining that its mortgage interest is subject to Jennifer's

homestead right in the Property.     Before this court, the parties

do not appear to dispute, putting aside the equitable subrogation

issue, that Jennifer had a homestead right in the Property, by

virtue of her marriage to William and continuous occupancy, at

least until the date of the divorce decree.7 Deutsche Bank contends

that she lost her homestead right either because it was terminated

by the divorce decree or because she waived the right through her

acceptance of certain language in the decree.     The district court

in effect concluded that Jennifer retained her homestead right

because the decree transferred ownership of the Property to her,

without the need for any subsequent conveyance.       We review the

district court's conclusion, based on its interpretation of the

divorce decree and New Hampshire law, de novo.8



     7  The district court determined that none of the transfers
prior to the divorce extinguished Jennifer's homestead right.
Deutsche Bank does not press the issue on appeal.
     8 Under New Hampshire law, "[q]uestions of intent [in a
divorce decree] are to be resolved by the trier of fact, whose
findings will be upheld if supported by the evidence, while the
meaning of the language in the agreement is a matter of law."
Miller v. Miller, 578 A.2d 872, 873 (N.H. 1990) (citation omitted)
(internal quotation marks omitted).    We take this to mean that
where, as here, the trial court's interpretation of the parties'
intent is based on the face of the agreement, the appellate court
reviews this interpretation de novo as a conclusion of law.



                                - 12 -
                1. New Hampshire's Homestead Law

                The     New   Hampshire        homestead       right,      or    homestead

exemption, protects $120,000 of the value of a person's homestead

from       creditors,     N.H.    Rev.   Stat.    Ann.     §    480:1,     with   certain

statutorily defined exceptions, see id. § 480:4, which the parties

do not contend are relevant to this appeal.9                        A homestead is the

place a person occupies as his or her home; "actual residency or

occupancy," excluding temporary absences, is essential to the

creation of a homestead because "[t]he purpose of the homestead

exemption is 'to secure to debtors and their families, the shelter

of the homestead roof[,] not to exempt mere investments in real

estate, or the rents and profits derived therefrom.'"                           Stewart v.

Bader, 907 A.2d 931, 943 (N.H. 2006)(quoting Austin v. Stanley, 46

N.H. 51, 52 (1865)).             The "shelter of the homestead roof" does not

mean       a   person   is    entitled    to    keep   his     or    her   home    in   all

circumstances.           Rather, in the event of a forced sale, a person




       9
       Before the district court, the parties appeared to dispute
whether Jennifer could claim $120,000 or only the lesser amount --
$30,000 -- that applied at the time she first acquired a homestead
right in the Property. See In re Bartlett, 168 B.R. 488, 494-98
(Bankr. D.N.H. 1994) (discussing whether an increase in the
statutory homestead amount can be "retroactively" applied). We
leave that issue for the appropriate court to decide if and when
Jennifer seeks a set-off in the amount of her homestead right.


                                         - 13 -
with a homestead right is entitled to a set-off in the statutorily

defined amount.10    See N.H. Rev. Stat. Ann. § 480:7.

          When a married couple resides together in a home, the

homestead right "extends to . . . both spouses, even when only one

spouse legally owns the homestead."      Maroun v. Deutsche Bank Nat'l

Tr. Co., 109 A.3d 203, 208 (N.H. 2014) (citing N.H. Rev. Stat.

Ann. § 480:3-a); see also N.H. Rev. Stat. Ann. § 529:20-a.        The

homestead right of a property owner's spouse is established once

he or she physically occupies the subject property.      Walbridge v.

Estate of Beaudoin, 48 A.3d 964, 966 (N.H. 2012).        The spouse's

homestead right is then ordinarily exempt from any subsequent

attachment or encumbrance; however, the right is not exempt from

any attachment or encumbrance that predates its establishment.

Id.; see also Mason v. Wells Fargo Bank, N.A., No. 14-cv-77-JL,

2014 WL 2737601, at *3 (D.N.H. June 17, 2014) (concluding that a

person who established a homestead right after the execution of a

mortgage on a property "took the property subject to" the mortgage

and "cannot invoke her homestead right as a defense to enforcement

of the mortgage").




     10 Alternatively, a person with a homestead right can seek an
injunction to prevent a forced sale if the equity in the home is
not sufficient to cover both the creditor's claim and the homestead
right.   See, e.g., Deyeso v. Cavadi, 66 A.3d 1236, 1238 (N.H.
2013).


                                - 14 -
            The   homestead    right     also    can   be    waived,   that   is,

voluntarily or intentionally relinquished.               Maroun, 109 A.3d at

228.     Although evidence of waiver must be "unequivocal," "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."     Id. (quoting N.H. Rev. Stat. Ann. § 480:5-a).

            2. Property Distribution by Divorce Decree

            In New Hampshire, "[t]he question of whether and to what

extent property rights have been transferred from one person to

another    generally   is     resolved    upon    a    determination    of    the

transferor's intent." Mamalis v. Bornovas, 297 A.2d 660, 662 (N.H.

1972).     When property rights are transferred in a stipulated

agreement, such as in the form of a stipulated divorce decree,

"absent fraud, duress, mutual mistake, or ambiguity, the parties'

intentions will be gleaned from the face of the agreement." Miller

v. Miller, 578 A.2d 872, 873 (N.H. 1990).               Courts consider "the

plain meaning of the language viewed in the context of the entire

decree[,]" Matter of Oligny, 153 A.3d 194, 196 (N.H. 2016), and

construe "[s]ubsidiary clauses . . . so as not to conflict with

the primary purpose of the decree," id. (quoting Bonneville v.

Bonneville, 702 A.2d 823, 825 (N.H. 1997)).                 See also Sommers v.

Sommers, 742 A.2d 94, 99 (N.H. 1999) ("We consider the intent of

the parties as expressed in the language of the stipulation.").




                                   - 15 -
             Broadly speaking, a major purpose of a divorce decree

"is to establish a final and equitable distribution of the marital

property."     Bonneville, 702 A.2d at 825; see also McSherry v.

McSherry, 606 A.2d 311, 313 (N.H. 1992) ("[A] property settlement

in a divorce decree is 'a final distribution of a sum of money or

a specific portion of the spouses' property .     .   . [and] is not

subject   to    judicial   modification   on   account   of   changed

circumstances." (alteration in original) (quoting Stebbins v.

Stebbins, 438 A.2d 295, 297 (N.H. 1981))); see also N.H. Rev. Stat.

Ann. § 458:16-a (providing that "[w]hen a dissolution of a marriage

is decreed, the court may order an equitable division of property

between the parties" and specifying that "[p]roperty shall include

all tangible and intangible property and assets, real or personal,

belonging to either or both parties, whether title to the property

is held in the name of either or both parties").          Given that

divorce decrees establish a final division of property, it is

unsurprising that such decrees can effectuate a conveyance of

personal or real property.    See Swett v. Swett, 49 N.H. 264, 264

(1870) (holding that an interest in real estate "vested in the

wife, 'by the mere force of the [divorce] decree,' 'as effectually

as the same could be done by any conveyance of the husband

himself'" (quoting Whittier v. Whittier, 31 N.H. 452, 458 (1855)));

see also Johnson v. Coe, 697 A.2d 939, 943 (N.H. 1997) ("The award

of the . . . house to the plaintiff in the divorce decree was a


                               - 16 -
property settlement and, as such, not modifiable."); Bonneville,

702 A.2d at 826 (holding that a stock transfer in a divorce decree

occurred "by operation of law"); Sommers, 742 A.2d at 99 (holding

that language in a divorce decree "creat[ed] an immediate property

interest" in a vehicle).

             Not   all       conveyances       in    a    divorce      decree         are

self-executing.       That is, a stipulated conveyance in a divorce

decree may require a future occurrence or further action by the

parties (a condition precedent) to take effect.                     See Spellman v.

Spellman, 614 A.2d 1054, 1055 (N.H. 1992).                    However, "[b]ecause

conditions    precedent        are    disfavored,    [courts]     infer     that      the

parties    intended      a   condition      precedent    only    where     the    plain

language     of    the       decree    or    stipulation        requires       such     a

construction."     Sommers, 742 A.2d at 99 (emphasis added); see also

United States v. Baker, No. 13-cv-213-PB, 2014 WL 4199120, at *3

(D.N.H. Aug. 22, 2014)("The husband and wife's subsequent failure

to comply with a provision of the divorce judgment -- in this case,

the execution and recording of a deed to the . . . properties --

will not invalidate or delay the conveyance unless the parties

clearly    intended      for   the    provision     to   serve    as   a   condition

precedent."). Therefore, under New Hampshire law, a divorce decree

may effectuate an immediate property transfer where its language

plainly    demonstrates        an     intention     to   do   so.        See     Baker,

2014 WL 4199120, at *3 ("When a 'stipulation between the parties


                                        - 17 -
. . . incorporated and merged into the divorce decree' 'clearly

and affirmatively expresse[s] their intention' to convey a real

property interest, that interest vests in the grantee 'on the

effective date of the divorce decree.'" (alteration and omission

in original) (quoting Mamalis, 297 A.2d at 663)).

            3.     Application of the Law

            The district court correctly determined that Jennifer

retained her homestead right under the plain language of the

divorce decree, which clearly indicates the parties' intention

that ownership of the Property immediately transfer to Jennifer:

"Jennifer Pike is awarded the marital homestead located at 34

Dogwood Lane, New London, New Hampshire[,] free and clear of any

interest of William Pike."         This declarative statement, with no

mention of any contingency or condition precedent, is the type of

language    that    the   New   Hampshire     Supreme    Court   has   read   to

effectuate an immediate property transfer.               See Bonneville, 702

A.2d at 826; Sommers, 742 A.2d at 99; cf. Spellman, 614 A.2d at

236-37 (concluding that a stipulated award of the marital home was

not   "self-executing"     because    the     language   of   the   stipulation

specifically made the transfer contingent on, among other things,

an appraisal of the home).

            The other provisions regarding the "marital homestead"

do not negate the parties' clear intent to transfer ownership to

Jennifer.    See Matter of Oligny, 153 A.3d at 196 (stating that


                                     - 18 -
"[s]ubsidiary clauses" must be read "so as not to conflict with

the primary purpose of the decree") (quoting Bonneville, 702 A.2d

at 825).    Agreeing to share the proceeds from a potential sale of

the home once their son graduates high school, for example, is not

incompatible with Jennifer's ownership.            Nor does the decree's

general provision that the parties "shall sign and deliver to the

other party any document that is needed to fulfill or accomplish

the terms of this Decree" evince an intention to make a deed

transfer a condition precedent to Jennifer's ownership of the

Property.11

            There also is no unequivocal evidence that Jennifer

waived her homestead right by agreeing to certain language in the

decree.    See Maroun, 109 A.3d at 228-29.       Deutsche Bank makes much

of the fact that the divorce decree mentions the possibility of a

foreclosure on the Property.             As discussed above, however, a

potential     foreclosure   does   not    necessarily   negate   a   property

owner's homestead right.      Rather, a homestead right superior to a

mortgage may simply require the mortgagee to pay the holder of the




     11 The district court noted that William later deeded the
Property to Jennifer in support of its conclusion that the parties
intended to transfer ownership of the Property to her. However,
contrary to Deutsche Bank's contention, the district court did not
suggest that the deed transfer was a condition precedent.       It
expressly held that "Jennifer's right to the [P]roperty became
effective immediately when the divorce decree issued on July 3,
2013."



                                   - 19 -
right from the proceeds of a foreclosure sale.   See supra section

II.B.1.   Therefore, the decree's mention of a possible foreclosure

does not indicate that Jennifer relinquished her homestead right.

For these reasons, the district court did not err in concluding

that Jennifer enjoys a homestead right in the Property with

priority over Deutsche Bank's mortgage.

C. Equitable Subrogation

           Deutsche   Bank's    equitable   subrogation   argument

essentially goes as follows: First Franklin discharged the debt

owed to New Century and thus stood to benefit from Jennifer's

waiver of her homestead right in the New Century mortgage.      As

successor to First Franklin, Deutsche Bank can stand in First

Franklin's shoes, and thus benefit from Jennifer's waiver.      In

other words, Deutsche Bank does not have to recognize Jennifer's

claimed homestead right.12

           Deutsche Bank further contends that the district court

erred in dismissing the Bank's equitable subrogation claim because

(1) Jennifer waived the argument that equitable subrogation cannot

be applied to defeat a homestead right in the absence of fraud,

and (2) New Hampshire law does not, in fact, require fraud.   As to



     12  To be precise, Deutsche Bank argues that it is entitled
to equitable subrogation "as to the amount that [First Franklin]
paid to discharge the [New Century] [m]ortgage."    In practical
terms, this would mean that Deutsche Bank does not have to pay
Jennifer anything in the event of a foreclosure.


                               - 20 -
"waiver," we are unconvinced that Jennifer "waived" or "forfeited"

her legal argument given that she raised it at a time when Deutsche

Bank still had an opportunity to meaningfully respond and before

the district court had rendered judgment.13             As to the merits of

her claim, we must first outline the relevant law in New Hampshire.

            1.    Background Law

            Under New Hampshire law, equitable subrogation "is a

broad doctrine [that] 'applies where one who has discharged the

debt of another may, under certain circumstances, succeed to the

rights    and    position   of   the    satisfied   creditor.'"    Chase   v.

Ameriquest Mortg. Co., 921 A.2d 369, 376 (N.H. 2007) (quoting 73

Am. Jur. 2d Subrogation § 5 (2001)).            For equitable subrogation to

apply, certain conditions "must be met: (1) the subrogee [the

entity who discharged the debt] cannot have acted as a volunteer;

(2) the subrogee must have paid a debt upon which it was not

primarily liable; (3) the subrogee must have paid the entire debt;

and (4) subrogation may not work any injustice to the rights of

others."    Id.




     13 Deutsche Bank specifically argues that Jennifer forfeited
the fraud contention by failing to plead it as an affirmative
defense, but the Bank forfeited this argument by failing to raise
it in its opening brief. See Sparkle Hill, Inc. v. Interstate Mat
Corp., 788 F.3d 25, 29 (1st Cir. 2015) (noting that arguments first
asserted in a reply brief ordinarily are deemed waived or
forfeited).



                                       - 21 -
             The       subrogee   has    the     burden    of    demonstrating     an

entitlement to equitable subrogation, "which generally includes

pro[ving] . . . [t]he existence and applicability of equitable

principles       or    contractual      provisions    as    to       subrogation   and

reimbursement."          Wolters v. Am. Republic Ins. Co., 827 A.2d 197,

200 (N.H. 2003) (second alteration in original) (quoting 16 L.

Russ    &   T.    Segalla,    Couch     on   Insurance     3d    §    222:7   (2000)).

Crucially, the New Hampshire Supreme Court has held that equitable

principles, such as equitable subrogation, "may be applied to reach

beyond the literal language of the exceptions" to the homestead

right -- that is, to create a new exception to application of the

homestead right -- "only when there has been fraud, deception, or

other misconduct in the procurement of funds spent on a homestead."

Deyeso v. Cavadi, 66 A.3d 1236, 1241 (N.H. 2013)(emphasis added).

             2.       Application of the Law

             On de novo review, we conclude that the district court

correctly applied New Hampshire law and declined to apply equitable

subrogation to defeat Jennifer's homestead right because there was

no "fraud, deception, or other misconduct in the procurement of

funds spent on [the] homestead."                  Deyeso, 66 A.3d at 1241.14


       14
        Although Deutsche Bank faults the district court for
offering a shifting rationale for its ruling, we disagree with
this characterization. In both of its orders, the district court
read Deyeso to hold that equitable principles cannot be invoked to
"reach beyond the literal language of the homestead exceptions" in
the absence of fraud. Contrary to Deutsche Bank's suggestion, the


                                        - 22 -
Deutsche Bank's fallback argument is that even if the district

court correctly interpreted New Hampshire law, it could have --

and   should   have   --   exercised   its   equitable   powers   to   apply

equitable subrogation in the Bank's favor.          We need not address

the complex question of whether and in what circumstances a federal

court sitting in diversity may order equitable relief that is not

authorized under state law.       See Guar. Tr. Co. of N.Y. v. York,

326 U.S. 99, 106 (1945) ("[A] federal court may afford an equitable

remedy for a substantive right recognized by a State even though

a State court cannot give it."); Bogosian v. Woloohojian Realty

Corp., 923 F.2d 898, 904 (1st Cir. 1991) (noting conflicting

circuit authority regarding the source of law for determining the

equitable powers of a federal court sitting in diversity).              Even

assuming the district court had the ability to apply equitable

subrogation outside the parameters of New Hampshire law, it was

not compelled to do so, and it certainly did not abuse its

discretion by declining to use its equitable powers in a manner at

odds with state law.       See Morgan v. Kerrigan, 523 F.2d 917, 921

(1st Cir. 1975) (per curiam) ("This court's review of orders issued

in the exercise of the district court's equitable powers is limited




district court never held that fraud is an element of equitable
subrogation or a precondition to applying equitable subrogation in
all situations.


                                  - 23 -
to   a    determination    whether     there        has     been     an   abuse     of

discretion.").15

                                      III.

            In   her   cross-appeal,    Jennifer          contends    that   she    is

entitled    to   attorney's   fees    based    on    a     state   statute    and   a

provision in the Deutsche Bank mortgage.             The statute provides, in

relevant part, as follows:

     If a retail installment contract or evidence of
     indebtedness provides for attorney's fees to be awarded
     to the retail seller, lender or creditor in any action,
     suit or proceeding against the retail buyer, borrower or
     debtor involving the sale, loan or extension of credit,
     such contract or evidence of indebtedness shall also
     provide that:

     I. Reasonable attorney's fees shall be awarded to the
     buyer, borrower or debtor if he prevails in

     (a) Any action, suit or proceeding brought by the retail
     seller, lender or creditor; or

     (b) An action brought by the buyer, borrower or debtor[.]

N.H. Rev. Stat. Ann. § 361-C:2 (emphases added).                      The Deutsche

Bank mortgage provides:




     15 We recognize that the district court, at various places in
its two orders related to equitable subrogation, seems to suggest
that its hands were tied by state law. However, we understand the
district court's rulings ultimately to rest on its determination
that equity would not be served by applying equitable subrogation
in a situation where it would not be applied by state courts. See,
e.g., Deutsche Bank Nat'l Tr. Co. v. Pike, No. 15-cv-304-JD, 2017
WL 2608727, at *3 (D.N.H. Feb. 12, 2017) ("Contrary to Deutsche
Bank's theory, [Jennifer] would not receive a windfall through her
homestead interest but instead would receive the protection
intended and provided by [the homestead statute].").


                                     - 24 -
     25. Attorneys' Fees. Pursuant to . . . § 361-C:2, in
     the event that Borrower shall prevail in (a) any action,
     suit or proceeding, brought by Lender, or (b) an action
     brought by Borrower, reasonable attorneys' fees shall be
     awarded to Borrower.

(Emphases added.)       Jennifer did not sign the First Franklin, now

Deutsche    Bank,    mortgage,   and   William     is   listed   as   the    sole

"borrower."    The term is not defined in the mortgage or in section

361-C, but Jennifer concedes that she is not the "borrower" for

purposes of the mortgage.

            The     district   court   concluded    that   Jennifer     is    not

entitled to attorney's fees under the statutory provision and the

mortgage precisely because she "is not the borrower."                 The court

further held that even if Jennifer could be considered a "debtor,"

the statute and the mortgage provision do not apply because

Deutsche Bank did not sue her for breach of the note or mortgage.

Nevertheless, on appeal, Jennifer presses the argument that she is

a "debtor" for purposes of the mortgage and, as such, is entitled

to attorney's fees pursuant to the mortgage provision and section

361-C:2.      We generally review the district court's denial of

attorney's fees for abuse of discretion but review any underlying

conclusions of law de novo.            In re Volkswagen & Audi Warranty

Extension Litig., 692 F.3d 4, 13 (1st Cir. 2012).

            Deutsche Bank raises a plethora of reasons why Jennifer

is not entitled to attorney's fees under section 361-C:2 and the

mortgage.    It suffices to say, however, that we essentially agree


                                   - 25 -
with the district court's straightforward analysis.16    The court

correctly determined that Jennifer is not entitled to the benefit

of the mortgage's attorney's fees provision, which is expressly

limited to the "borrower."    Section 361-C:2 requires reciprocal

treatment of both sides of a debt contract -- here, the mortgagee

and William -- but does not rewrite the mortgage's terms to render

the Bank responsible for the attorney's fees of a third party.

The district court did not commit legal error or otherwise abuse

its discretion in denying her fee request.17




     16Among its other arguments, Deutsche Bank contends that the
district court did not have jurisdiction to consider Jennifer's
fee request. Because Jennifer's entitlement to attorney's fees is
easily resolved on the merits, we do not address the jurisdictional
issue. See Cozza v. Network Assocs., Inc., 362 F.3d 12, 15 (1st
Cir. 2004) ("The rule is well established in this Circuit that
resolution of a complex jurisdictional issue may be avoided when
the merits can easily be resolved in favor of the party challenging
jurisdiction.").

     17 We note that it is somewhat disingenuous for Jennifer to
contend she has rights arising under the mortgage given that she
has repeatedly disavowed any connection to the mortgage, both in
state court and before the district court. Courts generally do
not approve of such attempts to have it both ways. See RFF Family
P'ship, LP v. Ross, 814 F.3d 520, 527 (1st Cir. 2016) (discussing
the doctrine of judicial estoppel, which "prevent[s] a litigant
from taking a litigation position that is inconsistent with a
litigation position successfully asserted by him in an earlier
phase of the same case or in an earlier court proceeding"
(alteration in original) (quoting Perry v. Blum, 629 F.3d 1, 8
(1st Cir. 2010))).


                              - 26 -
                               ***

          For the foregoing reasons, we affirm as to both appeals.

Each side shall bear its own costs.

          So ordered.




                             - 27 -
