CONVEYANCES AND MORTGAGES OF REALTY
MORTGAGES OF REALTY
Nature of Mortgage
Every conveyance of lands made for the purpose of securing the payment of money or the performance of any other thing in the condition thereof stated is a mortgage within the meaning of this chapter.
Source. RS 131:1. CS 137:1. GS 122:1. GL 136:1. PS 139:1. PL 215:1. RL 261:1.
No conveyance in writing of lands shall be defeated nor any estate encumbered by an agreement unless it is inserted in the condition of the conveyance and made part thereof, stating the sum of money to be secured, or other thing to be performed.
Source. RS 131:2. CS 137:2. GS 122:2. GL 136:2. PS 139:2. RL 215:2. RL 261:2.
479:3 Priority of Advances Under a Recorded Mortgage.
Subject to the provisions on priority in RSA 447:12-a, a recorded mortgage takes priority as of the date of its recording as to advances or obligations thereafter made or incurred that do not exceed the maximum amount stated in the mortgage.
Source. RS 131:3. CS 137:3. GS 122:3. GL 136:3. PS 139:3. PL 215:3. RL 261:3. RSA 479:3. 1985, 82:1, eff. July 9, 1985.
479:4 Repealed by 1985, 82:2, eff. July 9, 1985.
479:5 Present Agreement.
A mortgage or deed of trust which purports to be given in whole or in part as security for notes or bonds thereafter to be issued or other expectant future obligations and which states the nature of the obligations designed to be secured by it, the amount thereof presently to be issued, if any, and the limitations, if any, contained in the mortgage or deed of trust or in a contract referred to in the mortgage or deed of trust with respect to the total or maximum amount thereof ultimately to be issued shall become a lawful security for the same as, when and to the extent that they shall actually be issued or come into existence as valid obligations of the mortgagor.
Source. 1917, 120:1. 1925, 98:1. PL 215:4. RL 261:4. 1953, 20:1, eff. Feb. 26, 1953.
Performance of Conditions and Redemption
Upon the performance of the acts stated in the condition of a mortgage and the payment of all damages and costs arising by reason of the nonperformance of such condition according to the terms thereof, or upon the legal tender of such performance and payment, the mortgage shall be void.
Source. RS 131:4. CS 137:4. GS 122:4. GL 136:4. PS 139:4. PL 215:5. RL 261:5.
479:7 Discharge; Record.
I. When a mortgage upon real estate is satisfied, the mortgagee shall give the mortgagor a discharge thereof. Said discharge shall be in the form of a written document and shall be signed by the mortgagee, his executor, administrator, successor, or assign whose signature shall be witnessed or acknowledged and shall be sufficient when substantially in the following form:
(Form for Mortgage Discharge)
For value received,
__________, holder of a mortgage from
__________ and recorded in
__________ County Registry of Deeds at Book
__________, hereby discharges the said mortgage.
(1) Witness my hand this
__________ day of
(2) Subscribed, sworn to and acknowledged before me by
__________, the mortgagee, this
__________ day of
(Notary Public/Justice of the Peace)
II. The mortgagee, within 60 days after said mortgage is satisfied and having reasonable charges tendered to the mortgagee, shall cause the discharge of the mortgage to be recorded in the registry of deeds where the land lies. The recording fees associated with the discharge of mortgage may be charged to the mortgagor, if the mortgagor received written disclosure that such fees would be so charged. The mortgagee shall provide written confirmation of the discharge within the 60-day period to the payor of the final payment in satisfaction of the mortgage.
Source. 1905, 37:1. PL 215:6. RL 261:6. RSA 479:7. 1975, 462:1. 1986, 48:1. 1989, 171:1. 1997, 84:1, eff. Jan. 1, 1998.
479:7-a Discharge by Affidavit.
I. Notwithstanding the provisions of RSA 479:10, if such mortgagee fails to make such discharge of the mortgage within 60 days from receipt of payment of the mortgage in accordance with the payoff statement furnished to the mortgagor by the mortgagee; the mortgagor or the mortgagor's executor, administrator, assignee, transferee, or other successor in title; or the mortgagee of the mortgagor's transferee or other successor in title may execute and cause to be recorded in the registry of deeds in which the mortgage is recorded, an affidavit which states that:
(a) The affiant is the mortgagor; the mortgagor's executor, administrator, assignee, transferee, or other successor in title; or the mortgagee of the mortgagor's transferee or other successor in title.
(b) The mortgagee provided a payoff statement with respect to the loan secured by the mortgage.
(c) The mortgagee received full payment of the loan secured by the mortgage in accordance with the payoff statement, and the affiant has evidence that the mortgagee is in receipt of the funds.
(d) More than 60 days have elapsed since such payment was received by the mortgagee.
(e) The affiant has given the mortgagee at least 15 days' notice in writing by certified mail, sent to the mortgagee's last known address, of intention to execute and cause to be recorded an affidavit in accordance with this section, together with a copy of the proposed affidavit; and the mortgagee has not delivered a discharge in response to such notification and the mortgagor has complied with any request made by the mortgagee for additional payment at least 15 days prior to the date of the affidavit.
II. The affidavit shall include the names and addresses of both the mortgagor and the mortgagee, the date of the mortgage, and the title reference. Similar information shall be included with respect to any recorded assignment of the mortgage.
III. The affidavit, when recorded, shall constitute a discharge of the mortgage and a release of the lien created by the mortgage on the mortgaged premises.
IV. Any person who causes an affidavit to be recorded in accordance with this section, knowing the information and statements contained in the affidavit to be false, shall be punished by a fine of not more than $5,000.
V. In this section, the term "
" means a written statement of the amount of the unpaid balance on the mortgage including principal, interest, and other charges properly assessed pursuant to the loan documentation of such mortgage and a statement of the interest on a per diem basis with respect to the unpaid principal balance on the mortgage. For the purposes of this section, a regular periodic account statement is not considered a payoff statement unless the mortgagee expressly states thereon that the statement represents a final payoff statement and it also contains a per diem rate or amount for calculating the final mortgage payoff amount.
Source. 1999, 216:1, eff. Sept. 4, 1999. 2015, 224:1, eff. Jan. 1, 2016.
Any mortgagee violating the provisions of RSA 479:7, or any mortgagee who after the satisfaction of the mortgage refuses to give a sufficient discharge of such mortgage, shall be liable for damages to the mortgagor at the rate of $200 for each week after the expiration of the 60 days up to a maximum of $2,500 or in an amount equal to the loss sustained as a result of the failure of the mortgagee to execute and deliver a release, whichever is greater, plus costs and reasonable attorney's fees.
Source. 1905, 37:2. PL 215:7. RL 261:7. RSA 479:8. 1973, 531:134. 1989, 171:2, eff. Jan. 1, 1990. 2015, 224:2, eff. Jan. 1, 2016.
479:9 Informal Discharges, Validated.
Every duly recorded satisfaction piece or instrument executed prior to January 1, 1980, with intent to cancel and discharge or assign a mortgage of real estate, fully identifying the mortgage so intended to be canceled and discharged or assigned, but not drawn in formal accordance with statutory requirements, shall be held a valid discharge or assignment of such mortgage and a release or assignment of the mortgaged interest in such real estate. This section shall not apply to such satisfaction pieces or instruments, the validity of which is brought into question in any suit pending in any court before January 1, 1987.
Source. 1949, 191:2. RSA 479:9. 1986, 48:2, eff. Jan. 1, 1987.
479:10 Petition for Release.
If after such performance or payment, or a legal tender thereof, the mortgagee, being duly requested and having his reasonable charges therefor tendered to him, shall refuse or neglect to execute a release of his interest in the mortgaged premises, the mortgagor or person having his estate may apply by petition to the superior court in the county where the mortgaged estate or the greater part thereof lies stating the conveyance of the estate, the condition of the conveyance and the performance, payment or tender thereof, and praying for a decree of discharge or other relief.
Source. RS 131:5. CS 137:5. GS 122:5. GL 136:5. PS 139:5. PL 215:8. RL 261:8.
479:11 Hearing; Decree.
If the court, after proof of due notice given and a hearing on the petition, shall find that the condition of the mortgage has been performed and that all damages and costs have been paid according to law, or that a legal tender thereof has been made and the amount has been brought into court and lodged with the clerk thereof, the court shall decree that the mortgage be discharged.
Source. RS 131:6. CS 137:6. GS 122:6. GL 136:6. PS 139:6. PL 215:9. RL 261:9.
479:12 Record of Decree.
A copy of such decree, recorded in the registry of deeds for the county in which the lands lie, shall have the same effect as a release duly executed by the mortgagee.
Source. RS 131:7. CS 137:7. GS 122:7. GL 136:7. PS 139:7. PL 215:10. RL 261:10.
The mortgagee, upon a request in writing by the mortgagor, shall make out and deliver to him or his agent a just and true account of all his demands secured by the mortgage, of all damages and costs incurred by reason of the nonperformance of the condition thereof, and of all rents and profits by him received.
Source. RS 131:8. CS 137:8. GS 122:8. GL 136:8. PS 139:8. PL 215:11. RL 261:11.
479:14 Determination by Court.
If the mortgagee shall unreasonably refuse or neglect to make out and deliver such account, the superior court, upon petition by the mortgagor setting forth the facts in the case and upon due notice given to the parties interested, shall determine the amount justly due after deducting rents and profits received.
Source. RS 131:9. CS 137:9. GS 122:9. GL 136:9. PS 139:9. PL 215:12. RL 261:12.
479:15 Jury Trial.
If, upon the hearing of such petition, any issue of fact shall arise, such issue, if either party elects, may be determined by a jury, and costs shall be awarded to the prevailing party.
Source. RS 131:11. CS 137:11. GS 122:11. GL 136:11. PS 139:11. PL 215:14. RL 261:14.
479:16 Decree; Record.
Upon such amount being brought into court and lodged with the clerk, the court shall decree that the mortgage be discharged, and a copy of such decree recorded in the registry of deeds for the county in which the lands lie shall have the same effect as a release duly executed by the mortgagee.
Source. RS 131:10. CS 137:10. GS 122:10. GL 136:10. PS 139:10. PL 215:13. RL 261:13.
479:17 Limitation of Action.
No such petition shall be heard unless the same shall be entered in court within one year after such payment, performance, tender, refusal or neglect.
Source. RS 131:12. CS 137:12. GS 122:12. GL 136:12. PS 139:12. PL 215:15. RL 261:15.
479:18 Redemption After Condition Broken.
All lands conveyed in mortgage may be redeemed by the mortgagor, after the condition thereof is broken, by the payment of all demands and the performance of all things secured by the mortgage and the payment of all damages and costs sustained and incurred by reason of the nonperformance of its condition, or by a legal tender thereof, before foreclosure.
Source. RS 131:13. CS 137:13. GS 122:13. GL 136:13. PS 139:13. PL 215:16. RL 261:16.
Extension and Reamortization of Mortgage Loans to Veterans
Notwithstanding the provisions of RSA 479:3 or any other provision of law, the terms of repayment of any real estate mortgage loan made to a veteran under the provisions of Title III of the Servicemen's Readjustment Act of 1944, as now or hereafter amended, may, by written agreement between the holder of the mortgage and the debtor, be extended, the rate of amortization changed, and the amount of any delinquent interest and other delinquent mortgage charges added to the principal, all in accordance with the current federal regulations governing the subject; and the mortgage indebtedness as thus recast or amended as to terms of repayment shall be as fully secured under the original mortgage deed and have the same priority as the original mortgage indebtedness.
Source. 1957, 219:1, eff. July 3, 1957.
479:18-b Intervening Liens.
As to real estate mortgages made prior to July 3, 1957, nothing contained in RSA 479:18-a shall be construed to derogate from the rights of holders of valid liens on the mortgaged real estate which attached prior to July 3, 1957.
Source. 1957, 219:2, eff. July 3, 1957.
479:18-c Nature of Authority.
The powers and privileges conferred by RSA 479:18-a shall be deemed cumulative and are not intended to modify or supersede any such powers or privileges already available, in whole or in part, under other statutes or at common law.
Source. 1957, 219:3, eff. July 3, 1957.
If any provision of this subdivision is declared unconstitutional or the applicability thereof to any person or circumstance is held invalid, the constitutionality of the remainder of the subdivision and the applicability thereof to other persons and circumstances shall not be affected thereby.
Source. 1957, 219:4, eff. July 3, 1957.
The right of the mortgagor and all persons claiming under him to redeem any mortgaged premises shall be forever barred and foreclosed by the mortgagee in the following modes:
Entry Under Process. By entry into the mortgaged premises under process of law and continued actual possession thereof for one year.
Entry and Publication. By peaceable entry into the mortgaged premises and continued, actual, peaceable possession thereof for the space of one year, and by publishing in some newspaper printed in the same county, if any, and otherwise in some newspaper printed in an adjoining county, 3 weeks successively, a notice stating the time at which the possession for condition broken commenced, the object of such possession, the name of the mortgagor and mortgagee, the date of the mortgage and a description of the premises, the first publication to be 6 months at least before the right to redeem would be foreclosed.
Possession and Publication. By the mortgagee in possession of the mortgaged premises publishing in some newspaper printed in the same county, if any, and otherwise in some newspaper printed in an adjoining county, 3 weeks successively, a notice stating that from and after a certain day, which shall be specified in the notice and which shall not be more than 4 weeks from and after the last day of publication of the notice, such possession will be held for condition broken and for the purpose of foreclosing the right of the mortgagor and of all persons claiming under him to redeem the same, and stating the names of the mortgagor and of the mortgagee, the date of the mortgage and a description of the premises, and by retaining actual, peaceable possession of the premises for one year from and after the day specified in the notice.
Source. RS 131:14. CS 137:14. 1854, 1531:1. GS 122:14. GL 136:14. PS 139:14. PL 215:17. RL 261:17.
The expense of such publication and $.34 for the notice shall be paid to the mortgagee by the person redeeming the mortgage before the redemption thereof.
Source. RS 131:15. CS 137:15. GS 122:15. GL 136:15. PS 139:15. PL 215:18. RL 261:18.
The affidavit of the party making an entry into real estate under the second method of foreclosure, and of the witnesses thereto as to the time, manner and purposes of the entry, and a copy of the published notice required under the second and third methods of foreclosure, respectively, verified by affidavit as to the time, place and mode of publication, recorded in the registry of deeds for the county in which the lands lie, shall be evidence of entry, possession and publication.
Source. RS 131:16. CS 137:16. GS 122:16. GL 136:16. PS 139:16. PL 215:19. RL 261:19.
479:21-a Repealed by 2014, 198:2, eff. Jan. 1, 2015.
Foreclosure of Power of Sale Mortgage, or Sale Under the Power
479:22 Decree for Sale.
When a power of sale is contained in a mortgage and a conditional judgment is entered, the demandant may, instead of a writ of possession, have a decree entered that the property be sold pursuant to such power, and thereupon the demandant shall give such notices and do all such acts as are authorized and required by the power or by the court in its decree.
Source. 1899, 19:1. PL 215:20. RL 261:20.
479:23 Report of Sale.
The party selling shall, within 10 days after the sale, make to the court under oath a report of the sale and of his doings and file the same in the clerk's office, and the same may be confirmed and allowed or set aside and a new sale ordered as to the court seems just.
Source. 1899, 19:2. PL 215:21. RL 261:21.
479:24 Confirmation of Sale.
Any person interested may intervene or be summoned and heard on such proceedings, and the order of the court confirming the sale shall be conclusive evidence as against all persons that the power was duly executed.
Source. 1899, 19:2. PL 215:22. RL 261:22.
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) A copy of said notice shall be served upon the mortgagor or sent by registered or certified mail to his or her last known address or to such person as may be agreed upon in the mortgage at least 25 days before the sale, or in the case of a residential mortgage, at least 45 days before the sale. The term "
" 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, or in the case of a residential mortgage, at least 50 days, before the date of the sale, in the registry of deeds for the county in which the mortgaged premises are situated. In this paragraph, the term "
" means a mortgage on a dwelling, as defined in RSA 397-A:1, VI-c. Like notice shall be sent to any person having a lien of record on the mortgaged premises not less than 21 days before the sale, provided that the lien is recorded at least 30 days, or in the case of a residential mortgage, at least 50 days, before the date of the sale in the registry of deeds. 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.
(b) Notice of the sale as served on or mailed to the mortgagor shall include, for owner-occupied dwellings of 4 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
_____________ (insert toll-free telephone number). The hotline is a service of the New Hampshire banking department. There is no charge for this call." The banking department shall maintain a toll-free telephone number for this purpose, which shall be disseminated and kept up-to-date through a bulletin on the department's website.
(c) Notice of the sale as served on or mailed to the mortgagor shall also in all cases 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 or her 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.
Source. 1899, 19:3. 1905, 2:1. 1923, 115:1. PL 215:23. RL 261:23. RSA 479:25. 1967, 187:1. 1977, 401:1. 1979, 224:1. 1985, 248:1. 1990, 167:4. 1991, 203:2, 3. 1993, 206:1, eff. Aug. 8, 1993. 2015, 177:1, eff. Jan. 1, 2016.
479:26 Return; Effect.
I. The person selling pursuant to the power shall within 60 days after the sale cause the foreclosure deed, a copy of the notice of the sale, and his affidavit setting forth fully and particularly his acts in the premises to be recorded in the registry of deeds in the county where the property is situated; and such affidavit or a duly certified copy of the record thereof shall be evidence on the question whether the power of sale was duly executed. If such recording is prevented by order or stay of any court or law or any provision of the United States Bankruptcy Code, the time for such recording shall be extended until 10 days after the expiration or removal of such order or stay. If such recording is, in accordance with the provisions of this chapter, made more than 60 days after the sale, the reasons therefor shall be set forth fully and particularly in the affidavit.
II. Failure to record said deed and affidavit within 60 days after the sale shall render the sale void and of no effect only as to liens or other encumbrances of record with the register of deeds for said county intervening between the day of the sale and the time of recording of said deed and affidavit.
III. Title to the foreclosed premises shall not pass to the purchaser until the time of the recording of the deed and affidavit. Upon such recording, title to the premises shall pass to the purchaser free and clear of all interests and encumbrances which do not have priority over such mortgage. In the event that the purchaser shall not pay the balance of the purchase price according to the terms of the sale, and at the option of the mortgagee, the down payment, if any, shall be forfeited and the foreclosure sale shall be void.
Source. 1899, 19:4. PL 215:24. RL 261:24. RSA 479:26. 1967, 187:2. 1977, 401:2. 1990, 115:16. 1991, 203:4. 1992, 27:1, eff. Jan. 1, 1993.
479:27 Mortgagee May Buy.
A mortgagee selling under a power contained in a mortgage may be a purchaser at the sale, unless the mortgage contains a provision to the contrary.
Source. 1899, 19:5. PL 215:25. RL 261:25.
479:27-a Foreclosure on Personalty.
In the event that the note or other obligation secured by the mortgage is further secured by a security agreement on personalty situated on the mortgaged premises, the mortgagee may, at his option and upon notice to the mortgagor, foreclose the real estate and the personal property as a single unit, and compliance with the notice provisions of this chapter shall be deemed to be in compliance with the foreclosure requirements of the Uniform Commercial Code.
Source. 1977, 401:3, eff. Sept. 3, 1977.
Limitation on Undischarged Mortgages
479:28 Void After 50 Years.
From and after January 1, 1960, all undischarged mortgages of real estate which shall have been on record for a period of more than 50 years and which attain such age subsequent to January 1, 1960, shall be void; provided, however, that a mortgagee or assignee of such a mortgage may continue the same in its full legal effect and priority for an additional period of 50 years from date of such action by recording at any time within such 50-year period an affidavit signed by the mortgagor and the mortgagee or assignee stating that the mortgage is not discharged but is still in full force and effect. All such mortgages which shall have been on record for a period of more than 50 years on or before January 1, 1960, shall become void on January 1, 1960, unless prior to that date the mortgagee or the assignee of such a mortgage shall have recorded an affidavit signed by the mortgagor and the mortgagee or assignee stating that the mortgage is not discharged but is still in full force and effect, and upon the recording of such an affidavit such mortgage shall retain its full legal effect and priority for an additional period of 50 years from the date of such recording.
Source. 1957, 256:1, eff. Sept. 27, 1957.
RSA 479:28 shall not apply to mortgages held by banks, trust companies, building and loan associations and federal savings and loan associations, whether as named mortgagee or assignee of record.
Source. 1957, 256:1, eff. Sept. 27, 1957.
Real Estate Appraisals Conducted for Loan Applicants
479:30 Real Estate Appraisals.
Whenever a person pays a fee to any bank, mortgage company or other lending institution for a real estate appraisal which is a component of his application for a loan, he shall have the right to receive from such bank or lending institution one copy of the original appraisal free of charge. The request for the copy shall be made in writing.
Source. 1988, 96:1, eff. June 17, 1988.