Paul Clark
In this Blog we open the conversation with
economic loss caused by the current mortgage
crisis.
New
Hampshire Foreclosure Law Summary
Quick Facts
- Judicial Foreclosure Available: Yes
- Non-Judicial Foreclosure Available: Yes
- Primary Security Instruments: Deed of
Trust, Mortgage
- Timeline: Varies by Process; Typically 60 days
- Right of Redemption: None
- Deficiency Judgments Allowed: Yes
In New Hampshire,
lenders may foreclose on a mortgage or deed of trust
in default by using either the judicial or
non-judicial foreclosure processes or any of the
following special methods: Entry under Process,
Entry and Publication or Possession and Publication.
Judicial Foreclosure
In New Hampshire, the judicial process of
foreclosure is very similar to that of the strict
foreclosure process used in other New England
states. The judicial foreclosure process is one in
which the lender must file a complaint against the
borrower and obtain a decree of sale from a court
having jurisdiction in the county where the property
is located before foreclosure proceedings can begin.
Generally, if the court finds the borrower in
default, they will give them a set period of time to
pay the delinquent amount, plus costs. If the
borrower does not pay within the set period of time,
the court will then order the property to be sold.
Anyone may bid at the foreclosure sale, including
the lender.
Non-Judicial Foreclosure
The non-judicial process of foreclosure is used when
a power of sale clause exists in a mortgage or deed
of trust. A "power of sale" clause is the clause in
a deed of trust or mortgage, in which the borrower
pre-authorizes the sale of property to pay off the
balance on a loan in the event of the their default.
In deeds of trust or mortgages where a power of sale
exists, the power given to the lender to sell the
property may be executed by the lender or their
representative, typically referred to as the
trustee. Regulations for this type of foreclosure
process are outlined below in the "Power of Sale
Foreclosure Guidelines".
Power of Sale Foreclosure Guidelines
If the deed of trust or mortgage contains a
power of sale clause and specifies the time,
place and terms of sale, then the specified
procedure must be followed. Otherwise, the
non-judicial power of sale foreclosure is
carried out in the following phases:
A notice of sale must be recorded in the
county where the property is located and
then: 1) mailed to the borrower at least
twenty-five (25) days before the sale; and
2) published once a week for three (3)
weeks, with the first publication appearing
not less than twenty (20) days before the
sale, in a newspaper of general circulation
in the county where the property is located.
The notice should contain the time, date
and place of sale, a description of the
property and the default, as well as a
"warning" to the borrower, informing him the
property is going to be sold and what rights
he has to stop the procedure.
The foreclosure sale must be held on the
property itself, unless the power of sale
clause specifies a different location.
Special Methods of Foreclosure
Entry under Process - The lender may
foreclose by entering the property under process
of law and maintaining actual possession of the
property for one year.
Entry and Publication - By peaceable entry
onto the property and continued, actual,
peaceable possession for a period of one year,
and by a publishing a notice stating the time of
possession, the lender and borrowers name, the
date of the mortgage and a description of the
property in a newspaper of general circulation
in the county where the property is located. The
notice must be published for three (3)
successive weeks, with the first publication
appearing at least six (6) months before the
borrowers right to redeem has expired.
Possession and Publication - By the lender
in possession of the property publishing a
notice stating that from and after a certain
day, the property will be held for default of
the mortgage and the borrowers rights to the
property will be foreclosed. Said notice must be
published in a newspaper printed in the county
where the property is located for three (3)
successive weeks and must give the borrower and
lenders name, the date of the mortgage, a
description of the property and the lenders
intention to hold possession of the property for
at least one (1) year.
Borrowers have no rights of redemption when any
of the three (3) special methods of foreclosure are
used.
