New Hampshire Foreclosure Procedure
New Hampshire is a power of sale state because it has two broad classes of mortgage foreclosures, foreclosures made on mortgages without power of sale clauses and those with power of sales clauses. A "power of sale" 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 their default. In deeds of trust or mortgages where a power of sale exists, the power to sell the property is given to the lender or their representative, typically referred to as the trustee. It requires that the debtor receive a notice of foreclosure only 25 days prior to the auction date.
A mortgage without a power of sale clause in New Hampshire works much like strict foreclosure, that is in order to foreclose, a lender must take possession of the property lawfully, and hold it for a required length of time (one year in New Hampshire), before title becomes final in the name of the lender.
The lender has three ways to recover possession, first is the entry under process, wherein the lender files a case in court and secures a court order authorizing the entry.
Secondly is the so-called entry and subsequent publication, wherein the lender peaceably enters the premises and continues occupation for a year. An affidavit from the party and witnesses as to the time, manner and purpose of the entry should be recorded. A notice of when the lender started possession of the property for foreclosure should be published three weeks successively, with the first publication to be at least six months before the right to redeem would be foreclosed.
Finally, possession and publication, the lender already is in possession and simply publishes a notice stating that from a certain day forward, the lender retains possession because the mortgage conditions were broken by the borrower, and that the purpose of the lender’s continued possession is foreclosure. The day stated in the notice should be not later than four weeks after the initial advertisement. The notice should be published in a newspaper of general circulation in the county where the real estate is located.
The borrower must be sent a notice at least 25 days before the sale, for foreclosure sale without court action. Unless the borrower sues prior to the foreclosure sale, the borrower may not challenge the foreclosure in court at a later date. The lender should also publish a notice of the foreclosure sale once a week for three weeks in a newspaper of general circulation in the county or town where the property is located. The first publication must not be less than 20 days before the foreclosure sale.
The actual foreclosure sale must be held on site at the house or on the real property that is being foreclosed, unless the mortgage specifies a different location. A report of the sale must be made in ten days. The person who sells the property at the foreclosure sale must record the deed, a copy of the notice of sale and an affidavit describing the sales procedure to be recorded within 30 days of the sale. Title passes with the recording of the deed.
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