Legal Question in Real Estate Law in New Hampshire

Your rights are defined within the promissory note and mortgage. Examine these documents to determine if the documents provide for a statutory power of sale. In the mortgage conveyance, the words "statutory power of sale" or the equivalent must be referenced. For example, "this mortgage is upon the statutory conditions, for any breach of which the mortgagee shall have the statutory power of sale" in order for the power to be later invoked by the bank. If it does, and if the Bank does invoke the power, there are very specific steps enumerated in NH statute that the Bank MUST take. See RSA 479:25 appended below. If any of these are defective, so too is the sale.

You have the right to petition the Superior Court to enjoin the sale under RSA 479:25. In fact, your notice likely advised you of your rights, "You are hereby notified that you have a right to petition the superior court for the county in which the mortgaged premises are situated, with service upon the mortgagee, and upon such bond as the court may require, to enjoin the scheduled foreclosure sale." If you were not so advised, the notice was defective.

Beyond challenges based on the mortgage and the process, you may want to consider other options. For example, if you are struggling with lots of unsecured debt, bankruptcy might be something to consider. Filing for bankruptcy will result in an automatic stay against creditors, including the Bank, at least on a temporary basis.

You should consult with an attorney to determine what your options are. Phone: 1 (888) LOYAL-111 or 1 (617) 531-9766

RSA 479:25: Section 479:25

479:25 Sale Under the Power. � Instead of such suit and decree of sale, the mortgagee or his assignee may, upon breach of the condition, give such notices and do all such acts as are authorized or required by the power, including the giving of a foreclosure deed upon the completion of said foreclosure; but no sale under and by virtue of such power shall be valid and effectual to foreclose such mortgage unless the following conditions are complied with:

I. Notice of such sale shall be published once a week for 3 successive weeks in some newspaper of general circulation within the town or county in which the property is situated. In the event that the mortgaged premises are situated in more than one county, publication in a newspaper of statewide circulation shall be sufficient. The first publication shall be not less than 20 days before the date of sale, calculated by excluding the date of publication of the first notice and the date of sale.

II. A copy of said notice shall be served upon the mortgagor or sent by registered or certified mail to his last known address or to such person as may be agreed upon in the mortgage at least 25 days before the sale. The term "mortgagor'' shall include the mortgagor and any grantee, assignee, devisee or heir of the mortgagor holding a recorded interest in the mortgaged premises subordinate to the lien of the mortgage, provided that such interest is recorded, at least 30 days before the date of the sale, in the registry of deeds for the county in which the mortgaged premises are situated. Like notice shall be sent to any person having a lien of record on the mortgaged premises, provided that the lien is recorded at least 30 days before the date of the sale in the registry of deeds. The notice shall be sent not less than 21 days before the sale. Such notice of sale shall be sufficient if it fully sets forth the date, time, and place of sale; the town, county, street or highway and street number, if any, of the mortgaged premises; the date of the mortgage; the volume and page of the recording of the mortgage; and the terms of the sale. Any mortgagor or record lienholder who refuses to accept or claim mailed or served notice or who frustrates attempts by the mortgagee to give notice of the sale by failing to give or leave a forwarding address or by other act or omission shall be deemed to be notified of the sale, provided that such mortgagee shall have made a good faith effort to provide such notice. Notice of the sale as served on or mailed to the mortgagor shall include the following language:

"You are hereby notified that you have a right to petition the superior court for the county in which the mortgaged premises are situated, with service upon the mortgagee, and upon such bond as the court may require, to enjoin the scheduled foreclosure sale.'' Failure to institute such petition and complete service upon the foreclosing party, or his agent, conducting the sale prior to sale shall thereafter bar any action or right of action of the mortgagor based on the validity of the foreclosure.

II-a. No claim challenging the form of notice, manner of giving notice, or the conduct of the foreclosure sale shall be brought by the mortgagor or any record lienholder after one year and one day from the date of the recording of the foreclosure deed for such sale.

III. The sale shall be held upon the premises except where a different place of sale is agreed upon in the mortgage. In the event that the mortgage shall contain more than one parcel of land, the sale may be held on either parcel as may be specified in the notice of sale.

IV. No foreclosure sale shall be invalid or ineffectual to foreclose a mortgage pursuant to this section if any party entitled to be sent notice and not sent such notice shall, either before or after such foreclosure sale, waive its right to have been sent such notice, or if the lien or interest of such party in the mortgaged premises shall at any time be released or discharged. A waiver of notice authorized or validated under this section shall be recorded in the registry of deeds in the county where the property is situated.