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 when 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 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 the property to pay off the balance on loan in the event of 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:
Notice of Sale Must Be Recorded
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 of Law
The lender may foreclose by entering the property under the 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 one year, and by 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 borrower’s 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 borrower’s 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 lender’s intention to hold possession of the property for at least one (1) year.
Borrowers have no rights to redemption when any of the three (3) special foreclosure methods are used.
