September 1, 2015
by Adam F. Faria
Harmon Law Offices, P.C. – USFN Member (Massachusetts, New Hampshire)
On June 26, 2015 New Hampshire Governor Hassan signed into law SB 50, an act “relative to the notice required prior to foreclosure of residential property.” The provisions of the law go into effect on January 1, 2016. SB 50 serves to amend NH RSA 479:25 by distinguishing and expanding the foreclosure notice of sale period for “residential mortgages” from the notice of sale requirements for all other mortgages not defined as “residential mortgages.” The Act also provides for additional disclosures in the notice of sale where the property is an owner-occupied dwelling of four or fewer units without regard to the type of mortgage.
A “residential mortgage” as defined in RSA 397-A:1, VI-c. is, “any loan, including a first or second mortgage loan, primarily for personal, family, or household use which is secured in whole or in part by a mortgage, deed of trust, or other equivalent consensual security interest upon a dwelling or any interest in real property or in residential real estate.” In the case of “residential mortgages,” SB 50 extends the notice requirement to mortgagors under NH RSA 479:25, II. Under the current language of RSA 479:25, notice of sale must be sent to mortgagors at least twenty-five days before the sale. SB 50 increases the notice period to at least forty-five days before the sale. Additionally, while the Act maintains the existing twenty-one day notice requirement to persons having a lien of record, it extends the period under which a record lienholder is entitled to notice. The current RSA 479:25 requires notice be sent to a person having a lien of record at least thirty days before the sale. SB 50 requires notice be sent to a person having a lien of record at least fifty days prior to sale.
In the case of mortgages that do not fall under the definition of “residential mortgages,” the notice period remains unchanged. Notice to the mortgagor shall be sent twenty-five days prior to the sale; notice to a person having a lien of record shall be sent at least twenty-one days before the sale; and any person having a lien of record at least thirty days prior to the sale is entitled to notice.
Moreover, SB 50 requires the following additional disclosures be included in the notice of sale for all owner-occupied dwellings of four or fewer dwelling units: “1. The address of the mortgagee for service of process and the name of the mortgagee’s agent for service of process; and 2. Contact information for the New Hampshire Banking department, along with the statement ‘for information on getting help with housing and foreclosure issues, please call the foreclosure information hotline at [ ]. The hotline is a service of the New Hampshire banking department. There is no charge for this call.’” The Act further requires the banking department to provide a toll-free telephone number. As of the time of this writing, the banking department has not provided a toll-free telephone number.
It is unclear whether the new notice requirements contained in SB 50 are required only for notices of sale sent on or after January 1, 2016, or whether they are required for any sale that occurs on or after January 1, 2016. An additional complicating factor arises for any foreclosure sale scheduled to take place in 2015 and whose notices are compliant only with the current provisions of RSA 479:25. If that sale is postponed into 2016 when the provisions of SB 50 are in effect, it is unclear whether the sale would be a valid sale. For these reasons it behooves the prudent practitioner to begin compliance with the provisions of SB 50 at the earliest opportunity.
©Copyright 2015 USFN. All rights reserved.