New Loan Modifications are available to mortgages owned or guaranteed by Freddie Mac or Fannie Mae effective July 1, 2013 - August 1, 2015.

The Federal Housing Finance Agency ("FHFA") announced that, effective July 1, 2013, Fannie Mae and Freddie Mac mortgages will offer a new, simplified loan modification initiative to minimize losses and to help troubled borrowers avoid foreclosure and stay in their homes. 

Beginning July 1, servicers will be required to offer eligible borrowers who are at least 90 days delinquent on their mortgages an easy way to lower their monthly payments and modify their mortgages without requiring financial or hardship documentation.  It is called the "Streamlined Modification Initiative".  After making the three trial payments, the mortgage should be permanently modified with the lower payment.  The lower payments would be due to a lower interest rate and/or longer mortgage term, rather than a reduction to mortgage principal.  The homeowner must timely make each of the three trial- modification payments.

The program begins July 1, 2013 and ends August 1, 2015.

The loan must be owned or guaranteed by Fannie Mae or Freddie Mac.  Homeowners must be 90 days to 24- months (and no more) delinquent in mortgage payments, and have a first-lien mortgage that is at least 12 months old with a loan-to-value ratio equal to or greater than 80 %. That means you must have a first mortgage where the balance you owe is 80% or more of the value of your home and you must have taken out this mortgage at least twelve months ago, and be somewhere between 3 months and 24 months behind in your monthly mortgage payments.

Loans that have been modified at least two time previously are not eligible.  

For further information, dial 211 and ask to be placed with a Housing counselor.  Why?  The State of New Hampshire provides to its residents, at NO COST, the ability to work with a housing counselor to process a loan modification application.  Again, simply dial 211 and ask to be placed with a housing counselor to apply for a loan modification at no cost to you!

You can click here to see if your loan is owned or guaranteed by Fannie Mae or Freddie Mac.

Fannie Mae look up: 

https://www.knowyouroptions.com/loanlookup

Freddie Mac look up:https://ww3.freddiemac.com/corporate/?intcmp=LLT-HPimage

For more information, click on the news releases below issued by the Federal Housing and Finance Agency:

http://www.fhfa.gov/webfiles/25068/StreamlinedModInit32713Final.pdf

http://www.fhfa.gov/webfiles/25341/1q2013FPRrelease.pdf

Fannie Mae info: https://www.fanniemae.com/content/announcement/svc1305.pdf

Freddie Mac Info: http://www.freddiemac.com/sell/guide/bulletins/pdf/bll1305.pdf

Discharge in Bankruptcy Definition of "Defalcation".

"Defalcation" in context of bankruptcy discharge defined by the Supreme Court in Bullock v. Bankchampaign, N.A. May 13, 2013

Click here for the full decision:

http://www.supremecourt.gov/opinions/12pdf/11-1518_97be.pdf

Petitioner’s father established a trust for the benefit of petitioner and his siblings, and made petitioner the (nonprofessional) trustee. The trust’s sole asset was the father’s life insurance policy. Petitioner borrowed funds from the trust three times; all borrowed funds were repaid with interest. His siblings obtained a judgment against him in state court for breach of fiduciary duty, though the court found no apparent malicious motive. The court imposed constructive trusts on certain of petitioner’s interests—including his interest in the original trust—in order to secure petitioner’s payment of the judgment, with respondent serving as trustee for all of the trusts. Petitioner filed for bankruptcy. Respondent opposed discharge of petitioner’s state court-imposed debts to the trust, and the Bankruptcy Court granted respondent summary judgment, holding that petitioner’s debts were not dischargeable pursuant to 11 U. S. C. §523(a)(4), which provides that an individual cannot obtain a bankruptcy discharge from a debt“for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.”  The Federal District Court and the Eleventh Circuit affirmed. The latter court reasoned that “defalcation requires a known breach of fiduciary duty, such that the conduct can be characterized as objectively reckless.”
Held: The term “defalcation” in the Bankruptcy Code includes a culpable state of mind requirement involving knowledge of, or gross recklessness in respect to, the improper nature of the fiduciary behavior.

(a) While “defalcation” has been an exception to discharge in a bankruptcy statute since 1867, legal authorities have long disagreed about its meaning. Broad definitions of the term in modern and older
dictionaries are unhelpful, and courts of appeals have disagreed about what mental state must accompany defalcation’s definition.

(b) In Neal v. Clark, 95 U. S. 704, this Court interpreted the term “fraud” in the Bankruptcy Code’s exceptions to discharge to mean “positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, as does embezzlement; and not implied fraud, or fraud in law, which may exist without the imputation of bad faith or immorality.” Id., at 709. The term “defalcation” should be treated similarly. Thus, where the conduct at issue does not involve bad faith, moral turpitude, or other immoral conduct, “defalcation” requires an intentional wrong. An intentional wrong includes not only conduct that the fiduciary knows is improper but also reckless conduct of the kind that the criminal law often treats as the equivalent. Where actual knowledge of wrongdoing is lacking, conduct is considered as equivalent if, as set forth in the Model Penal Code, the fiduciary “consciously disregards,” or is willfully blind to, “a substantial and unjustifiable risk” that his conduct will violate a fiduciary duty.

(c) Several considerations support this interpretation.

First, statutory context strongly favors it. The canon noscitur a sociis argues for interpreting “defalcation” as similar to its linguistic neighbors “embezzlement,” “larceny,” and “fraud,” which all require a showing of wrongful or felonious intent. See, e.g., Neal, supra, at 709.

Second, the interpretation does not make the word identical to its statutory neighbors. “Embezzlement” requires conversion, “larceny” requires taking and carrying away another’s property, and “fraud” typically
requires a false statement or omission; while “defalcation” can encompass a breach of fiduciary obligation that involves neither conversion, nor taking and carrying away another’s property, nor falsity.

Third, the interpretation is consistent with the longstanding principle that “exceptions to discharge ‘should be confined to those plainly expressed.’ ” Kawaauhau v. Geiger, 523 U. S. 57, 62.
It is also consistent with statutory exceptions to discharge that Congress normally confines to circumstances where strong, special policy considerations,such as the presence of fault, argue for preserving the debt, thereby benefiting, for example, a typically more honest creditor. See, e.g., 11 U. S. C. §523(a)(2)(A).

Fourth, some Circuits have interpreted the statute similarly for many years without administrative or other difficulties. Finally, it is important to have a uniform interpretation of federal law, the choices are limited, and neither the parties nor the Government has presented strong considerations favoring a different

Vacated and remanded.
BREYER, J., delivered the opinion for a unanimous Court.

Local Bankruptcy Rules and Forms for New Hampshire

You can find the local rules and forms used by the Bankruptcy Court for the District of New Hampshire, on line, at no cost.

Rules, Orders & Forms, click below:

Local Bankruptcy Rules, Interim Bankruptcy Rules, Administrative Orders, and Local Bankruptcy Forms (as amended February 1, 2013)

If I filed bankruptcy before, can I file again?

If I filed bankruptcy before, can I file again?
The answer is yes.

The more important question is, how soon do you have to wait in between bankruptcy cases?

Chapter 7 to another Chapter 7 (8 years):
If you filed a Chapter 7 case and received a discharge of debt , then you must wait 8 years in between filing another Chapter 7 case.  See 11 U.S.C §727(a)(8).

Chapter 13 then Chapter 7 (6 years):
You must wait six years.  See 11 U.S.C.§727(a)(9).  However, if you paid 100% of your debts in the prior Chapter 13 case or paid at least 70% of your debts in the prior Chapter 13 case and the Bankruptcy Court found that this was your best effort then the 6-year rule does not apply.  See 11 U.S.C.§Section 727(a)(9),  provided you otherwise qualify.

Chapter 7 then Chapter 13 (4 years):
If you previously filed a Chapter 7 case and received a discharge of debt, then you would wait four years in between the prior Chapter 7 case and the new Chapter 13 case.   See 11 U.S.C.§1328(f)(1).  But, if after filing a Chapter 7 case you file a Chapter 13 case and you do not need a discharge of debt in the new Chapter 13 case, then you do not wait.

Chapter 13 to another Chapter 13 (2 years):
If you received a discharge of debt, meaning you completed your repayment plan in a prior Chapter 13 case, then you must wait two years before filing another Chapter 13 case or you will not receive a new discharge of debt in the new Chapter 13 case.  See 11 U.S.C.§  1328(f)(2).  But, if you are not looking for a discharge of debt in the new Chapter 13 case, then you can file another one without waiting.

NO time (0 years):
If you are going to pay your creditors back 100% and do not need a discharge of debt, then you do not need to wait to file a Chapter 13 case. Why would you file a bankruptcy case and not care about discharging debt?  A common answer is that you have fallen behind on your mortgage payments, or other types of payments, and you want to catch up and a Chapter 13 repayment plan would allow you to do that.  For example, if you fall behind in your mortgage payments for several months, it is nearly impossible to catch up quickly and you do not want to lose your house, and a Chapter 13 payment plan would allow you to spread those arrearages over a repayment plan of 3-5 years.

"Good Faith Rule": 
All cases must be filed in good faith to receive protection under the Bankruptcy Code, regardless as to timing.

Divorce Obligations may not be discharged through bankruptcy.

In a recent opinion issued by the New Hampshire Bankruptcy Court, (Honorable James B. Haines, Jr.  sitting in designation), the Court reiterated the parameters of what is, or is not, discharged through a chapter 7 bankruptcy case relevant to a divorce proceeding.  See Maville v. Maville (In re Maville), 2012 BNH 007 (Bankr. D.H. 2012)( Haines, J, sitting in designation).

Debts in the nature of alimony and child support are not discharged through a bankruptcy case.  Section 523(a)(5) of the Bankruptcy Code establishes that individual debtors will not be relieved of domestic support obligations; and, Section 101(14A) defines these to include debts in the nature of alimony, maintenance and support.  Prior to 2005, some obligations were discharged.  That changed with the amendments to the Bankruptcy Code in 2005.  Section 523(a)(15) now unqualifiedly provides that a property settlement obligation encompassed by that section is not discharged.  Maville, supra.

Click here for the full opinion from the Court's web site:

Click here: http://www.nhb.uscourts.gov/Opinions/Judge_Deasy/2012BNH007-Maville.pdf

Get a copy of your Tax Returns

If you cannot locate your tax return, the IRS can provide you with a "tax transcript" at no charge.

Click below for more information:

Click here: Tax Topics - Topic 156 Copy of Your Tax Return – How to Get One

If you want  a copy of the full tax return, you can order that as well but there will be a minimal charge.

Foreclosure: First Circuit would not force mortgagee to foreclose.

Canning v. Beneficial Maine, Inc. (In re Canning), ___ F.3d ___(1st Cir. Feb. 1, 2013).

The refusal by the Chapter 7 debtors’ mortgage creditor to accede to the debtors’ demand that the creditor either foreclose the mortgage on their residence, which the debtors had surrendered and vacated, or release its lien on the property did not violate the discharge injunction. Distinguishing In re Pratt, 462 F.3d 14 (1st Cir. 2006), in which the court held that a secured creditor's refusal to foreclose or release its lien on an inoperable, worthless car was intended to objectively coerce the debtor into paying a discharged debt, the court observed that the creditor offered to release its lien through either a settlement offer or a short sale, which indicated the intent to collect no more than the value secured by the underlying lien, as well as a willingness to negotiate a palatable solution for all involved.

Click here for the full opinion from the court's web site:  Click here: USCA1 Opinion

Mortgagee must possess power of sale at the time of foreclosure.

Alleged mortgagee needed to possess the "power of sale" at the time they foreclosed; thus mortgagor's questioning that the assignment did not take place prior to the foreclosure was proper; one who exercises power of sale must strictly follow its terms:

Juarez v. Select Portfolio Servicing, No. 11-2431 (1st Cir. 2/12/13):

Judgment dismissing complaint alleging defendants illegally foreclosed on her home is reversed and remanded, where the complaint states plausible claims for relief and that the district court abused its discretion in deciding that it would be futile to allow an amendment to the complaint. Juarez properly alluded to a challenge that the assignment did not take place prior to the foreclosure thus, the foreclosing entity did not have the "power of sale" at the time they exercised it - which is a different challenge than a mortgagor's challenge to the validity of a third-party assignment.  The issue of whether a "confirmatory assignment" cured the alleged defect was properly the subject of discovery and the complaint should have proceeded on that point.  One who exercises the power of sale must strictly follow its terms. In this Massachusetts case, an assignment of the mortgage must take place before the foreclosure begins. Further, in light of this, the plaintiff should be allowed to amend and re-plead her fraud and Section 93A claims (Mass. Consumer Protection Statute).  Massachusetts covenant of good faith and fair dealing is taken to be implied in every contract, and provides "that neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract" - the covenant only "governs conduct of parties after they have entered into a contract.

Juarez:  Click here: USCA1 Opinion

Homeowner has standing to challenge mortgage assignments.

In a case of first impression, mortgagor has standing to challenge assignment of mortgage if to do so renders the assignment void, rather than voidable:

Culhane v. Aurora Loan Services of Nebraska, No. 12-1285 (1st Cir. 2/15/13).

In a case of first impression, the court held that the mortgagor possesses standing to challenge the assignment of its mortgage to another entity.  "Withal, a mortgagor does not have standing to challenge shortcomings in an assignment that render it merely voidable at the election of one party but otherwise effective to pass legal title." - thus, making the distinction that the challenge must be that the assignment is "void", rather than "voidable". Thus, here, the mortgagor (namely the borrower or home owner at issue) has standing to contest the validity of the mortgage assignment made by Mortgage Electronic Registration Systems, Inc. (MERS), to defendant, the foreclosing entity; however, the MERS framework and defendant's foreclosure of plaintiff's property complied with the requirements of Massachusetts mortgage law, and thus the foreclosure was lawful. Applying Massachusetts law, the court noted that in Massachusetts, the note and mortgage may be held by separate entities. Further, the terms of the mortgage (contract) authorized the transfer at issue. 

"[I]n Massachusetts, a mortgagor has a legally cognizable right to challenge a foreclosing entity's status qua mortgagee. This may, in certain instances, require challenging the validity of an assignment that purports to transfer the mortgage to a successor mortgagee.  Standing doctrine is meant to be a shield to protect the court from any role in the adjudication of disputes that do not measure up to a minimum set of adversarial requirements.  There is no principled basis for employing standing doctrine as a sword to deprive mortgagors of legal protection conferred up them under state law.  We hold, therefore, that a mortgagor has standing to challenge the assignment of a mortgage on her home to the extent tat such a challenge is necessary to context a foreclosing entity's status qua mortgagee.  We caution that our hold, narrow to begin with, is further circumscribed.  We hold only that a mortgagor has standing to challenge a mortgage assignment as invalid, ineffective, or void (if, say, the assignor had nothing to assign or had not authority to make an assignment to a particular assignee).  If successful, a challenge of this sort would be sufficient to refute an assignee's status qua mortgagee . . . Withal, a mortgagor doe not have standing to challenge shortcomings in an assignment that render it merely voidable at the election of one party but otherwise effective to pass legal title."

Click here: USCA1 Opinion

Timing for challenge to lender's good faith and fair dealing.

Latson v. Plaza Home Mortgage, Inc., No. 12-1462 (1st Cir. 2/27/13).

Dismissal of plaintiffs' suit against defendant-mortgage lender alleging state common law and statutory violations in making two house loans is affirmed, where: 1) the good faith and fair dealing claim was properly dismissed because the allegedly wrongful conduct all occurred before the contracts existed, not in violation of their terms after formation, and the covenant only governs conduct of parties after they have entered into a contract; and 2) the statutory claim is time-barred - the statute of limitations for a 93A action is four years, which had  elapsed prior to suit.
The specific allegations were that prior to closing Plaza failed to provide Latson with a proper commitment letter, good-faith estimate, or other documents required by the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601–2617, and gave them insufficient opportunity to review the terms of the loans. They also claimed that Plaza either "knew or should have known" that an appraisal of the property that the Latsons obtained at Plaza's request was "too high." The Latsons asserted that all these acts and omissions were actionable under both their common-law and statutory claims.

LATSON:  Click here: USCA1 Opinion

FORECLOSURE: Homeowner's legal challenges should occur BEFORE the foreclosure sale auction of their home occurs, per the Federal Court.

In a recent opinion issued by the Federal District Court in New Hampshire, Chief Judge Laplante held that challenges to the foreclosure must occur BEFORE the foreclosure sale is held, relying upon NH R.S.A. 479:25,II.   SeeCalef v. Citibank, N.A. et. al., CV-11-526 (D.N.H. 2/21/13).

Click here for the full text of the opinion, which can be found on the Court's web site:

Click here: ISYS:web 8

The Calef case involved the federal court sitting in diversity, applying the state law as the court so interpreted it.  In so ruling, the court relied upon Gordonville Corp. N.V. v. LR1-A Ltd. P'ship, 151 N.H. 371, 377 (2004);Murphy V. Fin. Dev. Corp., 126 N.H. 536, 540 (1985); People's Utd. Bank. v. Mtn. Home Developers of Sunapee, LLC, 858 F. Supp. 2d 162, 167-68 (D.N.H. 2012).  Having failed to move to enjoin the foreclosure sale before launching such legal challenges, Calef (the home owner being foreclosed upon) was barred from doing so, after the foreclosure sale.  Fuller v. Fed. Nat'l Mortg.Ass'n, No. 218-2011-CV-00668, slip op. at 4-6 (N.H. Super. Ct. Oct 2, 2012)(Section 479:25, II barred challenge to foreclosure based on alleged invalidity of assignment where plaintiffs had notice of assignment well before sale);Baril v. JP  Morgan Chase Bank, N.A., No. 218-2010-CV-501, slip op. at 4-6 (N.H. Super. Ct. July 20, 2011)(similar); Fed Nat'l Mortg. Ass'n v. Goyal, No. 09-C-0543, 2011 WL 4403839 (N.H. Super. Ct. Feb 25, 2011)(similar).

Further, as the court previously ruled in LeDoux v. JP Morgan Chase, N.A., 2012 D.N.H. 194, 13-15, the borrower did not have standing to object to the transfer of a note on grounds that would merely render the transfer "voidable" as opposed to "void", such as a challenge to the mortgagee's pooling and servicing agreement.

In Calef, the plaintiff/pro se challenged the foreclosure sale of his home, afterthe foreclosure sale auction of his home occurred. The Court held that insofar as Calef's claims arise from alleged infirmities in the assignment of his mortgage to the foreclosing entity, New Hampshire state law preclude him for pursuing those claims because he failed to file a petition to enjoin the foreclosure sale prior the the sale occurring. Here, the owner of the home allegedly defaulted, and was sent a foreclosure notice by the mortgagee's counsel, the Harmon Law firm.  In the process, MERS assigned its interest in the mortgage to Citibank and copied Calef on the assignment.  Defendant/mortgagee characterized Calef's suit as a challenge to its pre-foreclosure conduct  (i.e. claims that the assignment of mortgage from MERS to Citibank was invalid) and claims related to post-foreclosure sale conduct (allegations that foreclosure deed and affidavit were  invalid). 

Further, the court found that even where a foreclosure deed and affidavit are not recorded at all, that does not affect the validity of the foreclosure sale as applicable to the mortgagor (meaning, the home owner).  "It follows that where the recorded deed and affidavit are deficient in some respect . . .  that, too, is a matter of no concern to the mortgagor." Calef, at p. 13. 

As such, summary judgment was granted to the foreclosing entity.

3 ways to Stop a Foreclosure Sale of your Home

In New Hampshire, most home mortgages have a "power of sale" clause.  A "power of sale" clause means that the lender can take your home without taking you to court if you are behind in your home mortgage payments. Because of this "power of sale" clause allowed in New Hampshire home mortgages, New Hampshire is called a "non-judicial" foreclosure state.

A non-judicial foreclosure in New Hampshire can happen very quickly.

Take a look at the following time line from the HomeHelp web site to understand the process that shows you can lose your home in less than 120 days if you do nothing.
click here: http://www.homehelpnh.org/timeline.htm

Here are the steps to losing your home:
1. Default: Meaning, you are not current in your home mortgage payments. If you do not cure the default, you will soon receive an acceleration letter from the "mortgagee" (a "mortgagee" is the person or entity holding your mortgage and you, the borrower, are the "mortgagor") telling you that you need to pay the past due amounts within a certain time frame.
2. You may also incur late fees, penalties and the lender's costs and fees for the mortgagee's attorney for being in default - so being late in your mortgage payments may cause you to incur these $$$ additional charges.
3. After the acceleration lender, if you have not brought all of your mortgage payments, cost, fees and late charges current, the mortgagee is permitted to schedule a foreclosure sale of your home. The mortgagee must send you a notice of foreclosure sale at least 25 days before the foreclosure sale.
4. Mortgagee advertises once a week for three weeks before the foreclosure sale to publish the date and time that your foreclosure sale is going to take place.
5. Day of the Foreclosure sale:  An auctioneer on behalf of the mortgagee shows up on your front lawn on the day of the foreclosure sale and auctions off your home. Up to the point of foreclosure sale, you can "reinstate" by paying back the lender all the past due payments, costs, fees, late fees and penalties - again, it is not just paying back the late mortgage payments.
6. Whoever buys your home at the foreclosure sale has 60 days to record the foreclosure deed. The mortgagee may buy your home at a foreclosure sale auction in addition to a third-party.
7.  After the foreclosure sale deed is recorded, the new owner (often the mortgagee) will proceed to the process of eviction of the homeowner.

How do I stop foreclosure?
1. Lender consents:  Ask the mortgagee to adjourn the foreclosure sale and give them a reasons to do so - such as you have a mortgage loan modification pending, or you have a sale pending of your home that will repay the loan.  With respect to a loan modification, remember you can get FREE help in the State of NH from a Housing Counselor (click on our article regarding Housing Counselors which gives you the names and addresses of a free housing counselor near you).  If the mortgagee agrees to adjourn the foreclosure sale, it is very wise to get this in writing.  Or, you can pay the lender all of the back payments, late fees, penalties etc., that have accrued up to the date of the foreclosure sale, also called "curing the arrearages" - and then you can go back to making your normal monthly mortgage payments on time - but you normally only have until the time the foreclosure sale takes place to "cure the arrearages".
2. TRO:  You may be able to seek a temporary restraining order, also called an "injunction", in the state court to temporarily stop the foreclosure sale, but you need to give the judge a reason to stop the foreclosure sale and you need to do this before the foreclosure sale.  You must file for the TRO before the foreclosure sale.  LARC may be able to help you with the TRO process.  Please call us at 1-877-399-9995 for further information on a TRO.
3. Bankruptcy:  File a petition in bankruptcy which automatically stops the foreclosure proceedings. In a Chapter 13 bankruptcy proceeding, you can have up to 60 months (5 years) to cure the back payments you owe to the lender and keep your home, as long as you can make the normal monthly payments going forward.  A Chapter 7 bankruptcy will also automatically stop the foreclosure sale as well; however, once the Chapter 7 case is over, the mortgagee can reschedule the foreclosure sale.

Lien stripping your second mortgage in a Ch. 13 Bankruptcy Case.

In a Chapter 13 bankruptcy case, you may be able to permanently remove your second mortgage  - without paying it - if there is no value to secure it - and never pay it again.  

How can this be?  

In today's poor economic climate, real estate values are plummeting.  This is one instance where your home's declining value can actually help you. For example, if you have a first mortgage where you owe a balance of $200,000 and a second mortgage (or home equity line) where you owe a balance of $75,000 - but your home is only worth $200,000 or less, then you may be able to "lien strip" the second mortgage and never pay it again. Simply, if your home's value will not support the second mortgage, the bankruptcy code allows you to remove it.  This is called "lien stripping".

Chapter 13 may also allow you to get rid of unsecured debt such as credit cards and medical bills.

So, if you are facing the loss of your home, but you earn enough money to pay your first mortgage - Chapter 13 may allow you to get rid of your credit card debt, unpaid medical bills and get rid of your second mortgage.

This may mean the difference between saving your home or becoming homeless.

Learn more about Chapter 13 and how it can benefit you.

FORECLOSURE: Challenge before the foreclosure sale of your home.

In a recent opinion issued by the Federal District Court in New Hampshire, Chief Judge Laplante held that challenges to the foreclosure must occur BEFORE the foreclosure sale is held, relying upon NH R.S.A. 479:25,II.   See Calef v. Citibank, N.A. et. al., CV-11-526 (D.N.H. 2/21/13). 

Click here for the full text of the opinion, which can be found on the Court's web site:

Click here: ISYS:web 8

The Calef case involved the federal court sitting in diversity, applying the state law as the court so interpreted it.  In so ruling, the court relied upon Gordonville Corp. N.V. v. LR1-A Ltd. P'ship, 151 N.H. 371, 377 (2004); Murphy V. Fin. Dev. Corp., 126 N.H. 536, 540 (1985); People's Utd. Bank. v. Mtn. Home Developers of Sunapee, LLC, 858 F. Supp. 2d 162, 167-68 (D.N.H. 2012).  Having failed to move to enjoin the foreclosure sale before launching such legal challenges, Calef (the home owner being foreclosed upon) was barred from doing so, after the foreclosure sale.  Fuller v. Fed. Nat'l Mortg. Ass'n, No. 218-2011-CV-00668, slip op. at 4-6 (N.H. Super. Ct. Oct 2, 2012)(Section 479:25, II barred challenge to foreclosure based on alleged invalidity of assignment where plaintiffs had notice of assignment well before sale); Baril v. JP  Morgan Chase Bank, N.A., No. 218-2010-CV-501, slip op. at 4-6 (N.H. Super. Ct. July 20, 2011)(similar); Fed Nat'l Mortg. Ass'n v. Goyal, No. 09-C-0543, 2011 WL 4403839 (N.H. Super. Ct. Feb 25, 2011)(similar).

Further, as the court previously ruled in LeDoux v. JP Morgan Chase, N.A., 2012 D.N.H. 194, 13-15, the borrower did not have standing to object to the transfer of a note on grounds that would merely render the transfer "voidable" as opposed to "void", such as a challenge to the mortgagee's pooling and servicing agreement.

In Calef, the plaintiff/pro se challenged the foreclosure sale of his home, after the foreclosure sale auction of his home occurred. The Court held that insofar as Calef's claims arise from alleged infirmities in the assignment of his mortgage to the foreclosing entity, New Hampshire state law preclude him for pursuing those claims because he failed to file a petition to enjoin the foreclosure sale prior the the sale occurring. Here, the owner of the home allegedly defaulted, and was sent a foreclosure notice by the mortgagee's counsel, the Harmon Law firm.  In the process, MERS assigned its interest in the mortgage to Citibank and copied Calef on the assignment.  Defendant/mortgagee characterized Calef's suit as a challenge to its pre-foreclosure conduct  (i.e. claims that the assignment of mortgage from MERS to Citibank was invalid) and claims related to post-foreclosure sale conduct (allegations that foreclosure deed and affidavit were  invalid). 

Further, the court found that even where a foreclosure deed and affidavit are not recorded at all, that does not affect the validity of the foreclosure sale as applicable to the mortgagor (meaning, the home owner).  "It follows that where the recorded deed and affidavit are deficient in some respect . . .  that, too, is a matter of no concern to the mortgagor." Calef, at p. 13. 

As such, summary judgment was granted to the foreclosing entity.

New Hampshire Statutes

Would you like to learn more about the law in New Hampshire?  Well, you need not buy an expensive law book or subscribe to an expensive legal research service.  Simply, click here for a free list of the New Hampshire statutes, click here:

Click here: New Hampshire Statutes - Table of Contents

Bankruptcy Code and Bankruptcy Rules

The Internet is a wealth of information for research.  

Below are links to the Bankruptcy Code :

Click here: USC : Title 11 - BANKRUPTCY | U.S. Code | LII / Legal Information Institute

and the Bankruptcy Rules:

Click here: Federal Rules of Bankruptcy Procedure | Federal Rules of Bankruptcy Procedure | LII / Legal Information Institute

Filing for bankruptcy without a lawyer.

While filing a bankruptcy petition can be a challenge, even for an experienced lawyer, the law does allow you to file without an attorney and do it yourself.  This is called proceeding pro se. 

The New Hampshire Bankruptcy Court has a web site that provides helpful information on this subject.

Click her for more information:

Click here: ProSe Filing - Without an Attorney

Even if you decide to hire a lawyer, the court's web site is a valuable source of general information.

Foreclosure Time Line

In New Hampshire, most home mortgages have a "power of sale" clause.  

A "power of sale" clause means that the lender can take your home without taking you to court if you are behind in your home mortgage payments. 

Because of this "power of sale" clause allowed in New Hampshire home mortgages, New Hampshire is called a "non-judicial" foreclosure state.

A non-judicial foreclosure in New Hampshire can happen very quickly. 

If you are facing foreclosure, please call the LARC Hotline for more information about how you can fight back to keep our house, call 1-877-399-9995.

Take a look at the following time line from the HomeHelp web site to understand the process:

http://www.homehelpnh.org/timeline.htm

Here are the steps to losing your home:
1. Default: Meaning, you are not current in your payments.
2. You may also incur late fees, penalties and the lender's costs and fees for the lender's attorney for being in default - so being late in your mortgage payments may cause you to incur these $$$additional charges.
3. Bank sends you a notice of foreclosure sale at least 25 days before the foreclosure sale.
4. Lender advertises once a week for three weeks before the foreclosure sale of the date and time the foreclosure sale is going to take place.
5. Foreclosure sale:  An auctioneer on behalf of the lender shows up on your front lawn on the day of the foreclosure sale and auctions off your home. Up to the point of foreclosure sale, you can "reinstate" by paying back the lender all the past due payments, costs, fees, late fees and penalties - again, it is not just paying back the late mortgage payments.
6. Whoever buys your home at the foreclosure sale has 60 days to record the foreclosure deed.
7. Eviction of the homeowner.

New Hampshire Representatives

Sometimes the best place to start for help may be your own representatives. 

In the great State of New Hampshire, these are our current representatives in the year 2013 and their contact information (click on the links below):

STATE SENATORS:

Jeanne Shaheen [D]

Click here: Jeanne Shaheen - United States Senator for New Hampshire

and

Kelly Ayotte [R]

Click here: Kelly Ayotte - United States Senator

Click here for the official web site of the Unites States Senate:

Click here: U.S. Senate: Senators Home

GOVERNOR:

The governor for the State of New Hampshire is Maggie Hassan.

Click here: Welcome to the Office of the Governor | New Hampshire Governor Maggie Hassan

U.S. STATE REPRESENTATIVES:

Carol Shea Porter [D] (1st Congressional District)

Click here: Congresswoman Carol Shea-Porter | Representing the 1st District of New Hampshire

and

Ann Kuster [D] (2nd Congressional District)

Click here: Congresswoman Ann McLane Kuster | Representing the 2nd District of New Hampshire

Support Services

Where to turn for help in New Hampshire?  Please review the support services available to New Hampshire residents.  Contact these respective agencies for further information:

SUPPORTIVE SERVICES IN NEW HAMPSHIRE

COMMUNITY & HOUSING SERVICES

2.1.1. New Hampshire (Just dial 2-1-1) http://www.211nh.org – Out of state call 866-444-4211

211 connects callers, at no cost, to information about critical health and human services available in their community including Basic Needs such as Community Shelters, Food Banks & Pantries, Temporary Financial Aid, & Transportation. Also, many other resources for Consumer, Health, Education, Community Services, and Legal Services needs.

Bureau of Homeless and Housing Services (BHHS) – Works with NH Communities to develop programs and services to NH’s homeless populations - http://www.dhhs.state.nh.us/dcbcs/bhhs/index.htm

603-271-5142 or 800-852-3345 ext 5142

NH Housing Finance Authority http://www.nhhfa.org - Rental Programs and Emergency Housing

603-472-8623 or 800-439-7247 ext 9283

Ahead Inc. Affordable Housing, Education, and Development (Northern NH) http://www.homesahead.org

603-444-1377 or 800-974-1377

Catch Neighborhood Housing (Concord area) http://www.catchhousing.org 603-225-8835

NeighborWorks Greater Manchester http://www.nwgm.org 603-626-4663

The Way Home http://www.thewayhomenh.org 603-627-3491 – Helps low-income household obtain and succeed in safe, affordable housing

Front Door Agency (formally Nashua Pastoral Care Center) http://www.nashuanpcc.org/Programs.html

603-886-2866 - Offers support and provides services to assist individuals and families transition from crisis to self-sufficiency

Listen Community Services (Lebanon Area) http://www.listencs.org 603-448-4553 - Listen provides services and support to meet the critical needs of Upper Valley individuals and families

FINANCIAL ASSISTANCE

Town & City Welfare - To apply, contact your local office http://www.nh.gov/municipal/index.html

Public Utilities Commission http://www.puc.state.nh.us/Consumer/complaint.htm

Utility Dispute Matters 800-852-3793  

Gas Assistance Program http://www.puc.state.nh.us/Consumer/gasassistanceprogram.htm

National Grid-Gas 800-262-4111 or Unitil-Gas 800-552-3043

Fuel Assistance, NH Office of Energy and Planning (OEP) 603-271-2155 http://www.nh.gov/oep/programs/fuelassistance/index.htm

Electric Assistance Program (EAP) http://www.puc.state.nh.us/Consumer/electricassistanceprogram.htm

To apply for fuel or electric assistance, contact your local Community Action Agency

http://www.puc.state.nh.us/Consumer/communityactionagencies.htm

Community Action Program of Belknap-Merrimack Counties, Inc. http://www.bm-cap.org

Concord 603-225-6880 Franklin 603-934-3444 Laconia 603-524-5512 Meredith 603-279-4096

Suncook 485-7824 Warner 603-456-2207

Rockingham Community Action http://www.rcaction.org

Portsmouth 603-436-3896 or 800-322-1073 Salem 603-898-8435

Southwestern Community Services, Inc. (Cheshire & Sullivan Counties) http://www.scshelps.org

Keene 603-352-7512 or 800-529-0005 Claremont 603-542-9528

Community Action Partnership of Strafford County http://www.straffordcap.org

Dover 603-749-1334 Rochester 603-332-3963 Farmington 603-755-9305 Milton 603-652-9893

Tri-County Community Action Program, Inc. (Coos, Carroll, & Grafton Counties) http://www.tccap.org

Berlin 603-752-3248 Littleton 603-444-6653 Colebrook 603-237-8168 Plymouth 603-536-8222 Lancaster 603-788-4477 Woodsville 603-747-3013 Lebanon 603-448-4553 Carroll County 603-323-7400 or 888-842-3835

Southern NH Services Inc. (Hillsborough County) http://www.snhs.org

Manchester 603-647-4470 or 800-322-1073 Nashua 603-889-3440 or 800-211-0723 Peterborough 603-924-2243

NH Community Loan Fund http://www.communityloanfund.org 603-224-6669

HEALTH AND SAFETY

Food Stamp Program http://www.dhhs.nh.gov/dfa/foodstamps/index.htm 603-271-9700 or 800-852-3345 ext 9700

NH Medicaid Program http://www.dhhs.nh.gov/ombp/medicaid/index.htm 603-271-4344 or 800-852-3345 ext 4344

Bureau of Behavioral Health (BBH) - Seeks to promote respect, recovery, and full community inclusion for adults, including older adults, who experience a mental illness and children with an emotional disturbance - http://www.dhhs.nh.gov/dcbcs/bbh/index.htm 603-271-5000 or 800-852-3345 ext 5000

 SUICIDE HOTLINE 800-852-3388

Division of Public Health Services http://www.dhhs.nh.gov/dphs/index.htm 603-271-4501 or 800-852-3345 ext 4501

Bureau of Drug and Alcohol Services http://www.dhhs.nh.gov/dcbcs/bdas/index.htm 603-271-6110 or 800-804-0909

NH Department of Safety http://www.nh.gov/safety/index.html

Public Information 603-271-2231

State Police (emergency only) 800-525-5555

Fire Standards and Training and Emergency Medical Services 603-223-4200 or 800-371-4503

Fire Safety 603-223-4289 or Arson Hotline 800-400-3526

DISABLED

Developmental Services for Adults (BDS) http://www.dhhs.nh.gov/dcbcs/bds/index.htm 

603-271-5034 or 800-852-3345 ext 5034

Children and Adolescent Services: The NH Partners in Health – Family support services to children and adolescents with chronic health conditions http://www.dhhs.nh.gov/dcbcs/bds/children.htm  603-271-5034 or 800-852-3345 ext 5034

Governor’s Commission on Disability (GCD) http://www.nh.gov/disability/index.htm 800-852-3405

Granite State Independent Living (GSIL) http://www.gsil.org/  603-228-9680 or 800-826-3700 – Home care program provides seniors and individuals with long term care needs in their homes.

Disabilities Rights Center, Inc. (DRC) http://www.drcnh.org 603-228-0432 or 800-834-1721 – Protection and advocacy for NH advocating for the legal rights of persons with disabilities

Disabled American Veterans (DAV) Service http://www.dav.org/veterans/NSOffices.aspx 603-222-5788

Brain Injury Association of NH http://www.bianh.org 800-773-8400 or 603-225-8400 – Brain injury and stroke support, prevention, education, and advocacy for survivors and caregivers

Community Services Council of NH http://cscnh.org/about-cscnh.html 603-225-9694 or 800-843-1117

CHILDREN

DHHS Division of Child Support Services (DCSS) http://www.dhhs.nh.gov/dcss/index.htm 603-271-4427 or 800-852-3345 ext 4427

Foster Care and Adoption Services DHHS http://www.dhhs.nh.gov/dcyf/adoption/index.htm 603-271-4711

Family Resource Connection of the NH State Library (FRC) http://www.nh.gov/nhsl/frc/

800-298-4321 – Collaborative effort of Departments of Health and Human Services, Education, and NH State Library

NH Healthy Kids http://www.dhhs.nh.gov/dfa/medical/children.htm  603-271-9700 or 800-852-3345 ext 9700

SENIORS

NH ServiceLink http://www.nh.gov/servicelink 866-634-9412 - ServiceLink Resource Centers are trusted places in your community to get answers about healthcare and other services for older adults, persons with disabilities and family caregivers

DHHS Bureau of Elderly and Adult Services (BEAS) http://www.dhhs.nh.gov/dcbcs/beas/index.htm

603-271-9203 or 800-351-1888 - Provides a variety of social and long-term supports to adults age 60 and older and to adults between the ages of 18 and 60 who have a chronic illness or disability

Prescription Drug Assistance http://www.dhhs.nh.gov/dcbcs/beas/prescription.htm 603-271-9203 or 800-351-1888

VETERANS

NH State Office of Veterans Services http://www.nh.gov/nhveterans 603-624-9230 or 800-622-9230

CONSUMER PROTECTION

Consumer Protection and Antitrust http://doj.nh.gov/consumer 603-271-3658

NH Department of Justice Consumer Sourcebook http://doj.nh.gov/consumer/sourcebook/index.htm#contents NH Attorney General’s Consumer Protection Hotline 1-888-468-4454 (Weekdays between 9am-3pm)



_____________________________________________________________________

Housing Counselors - FREE Help to Process Your Loan Modification

For those New Hampshire home owners who want to try and  reduce their home mortgage payments, FREE help is available to you.  Contact a Housing Counselor to work with you to process an application for a home mortgage loan modification. 

Below is a current list of HUD counselors in your area:

AHEAD

161 Main St.

Littleton, NH 03561

Tel: 603-444-1377 or 1-800-974-1377

Web: www.homesahead.org
Service Areas: Grafton, Coos and Carroll Counties

Laconia Area Community Land Trust

658 Union Ave

Laconia, NH 03246

Tel: 603-524-0747

Web: www.laclt.org
Service Areas:  Greater Lakes Region, Belknap

NeighborWorks Southern NH

801 Elm St., Second Floor

Manchester, NH 03101

Contact: Paul McLaughlin

Tel: 603-626-4663

Web: www.nwgreatermanchester.org
Service Areas: Merrimack, Hillsborough and parts of Rockingham Counties

CATCH Neighborhood Housing

76 South State St.

Concord, NH 03301

Tel: 603-225-8835

Web: www.catchhousing.org
Services Areas:  Merrimack, Hillsborough and parts of Rockingham Counties

Community Home Solutions

14 New Zealand Rd.

Seabrook, NH 03874

Tel: 603-474-7449

Web: www.communityhomesolutions.org
Service Areas: Rockingham and Strafford

Southwestern Community Services

36 Community Way, P.O. Box 603

Keene, NH 03431

Tel: 603-352-3618

Service areas: Cheshire, Sullivan, and lower Grafton Counties, Western Hillsborough

The Housing Partnership

767 Islington St, P.O. Box 466

Portsmouth, NH 03802

Tel: 603-766-3125

Web: www.housingpartnership.org

Service Areas:  Rockingham and Strafford

   

The Way Home

214 Spruce St.

Manchester, NH 03103

Tel: 603-218-1466

Service Areas:  Merrimack, Hillsborough, and parts of Rockingham Counties

211 NH

Tel: 603-621-6893 or

Tel: 603-621-6892

Service Areas: Statewide

Wedu

Tel: 603-647-9338

Service Areas:  Statewide

Click here for more information:

Click here: Housing Counseling Agencies