FORECLOSURE CONSULTANTS AND PRE-FORECLOSURE CONVEYANCES

RSA tit. XLVIII, ch. 479-B

in effect

RSA 479-B:1 Definitions.

479-B:1. Definitions. In this chapter: I. "Foreclosure consultant" means any person, or any person acting in concert with such person, or any agent or employee of such person who provides a foreclosure consulting service. II. "Foreclosure consulting contract" means a written, oral, or constructive agreement between a foreclosure consultant and a homeowner for the provision of any foreclosure consulting service or pre-foreclosure conveyance. III. "Foreclosure consulting service" means: (a) An effort undertaken on behalf of or for the benefit of a homeowner to delay or prevent the loss of a home because of a mortgage default, delinquency, foreclosure, or execution of a tax deed. (b) Receiving money for the purpose of distributing it to creditors in payment or partial payment of any obligation secured by a lien on a residence in foreclosure; (c) Contacting mortgagees or other creditors secured by a homeowner's primary residence on behalf of the homeowner; (d) Arranging or attempting to arrange for an extension of the period within which a homeowner may cure the homeowner's default and reinstate the homeowner's obligation; (e) Arranging or attempting to arrange for any delay or postponement of the sale of a residence in foreclosure; (f) Arranging or facilitating the purchase of a homeowner's legal or equitable title or any property interest in a homeowner's residence within 30 days of: (1) The publication or letter of notice of a foreclosure sale; or (2) The letter notice of a municipality's intent to execute a tax deed. (g) Arranging or facilitating any transaction through which a homeowner will become a lessee, optionee, life tenant, partial homeowner, or vested or contingent remainderman of the homeowner's residence; (h) Arranging or facilitating the sale of a homeowner's residence or transfer of legal title and any property interest in a homeowner's residence, in any form, to another party as an alternative to foreclosure; (i) Arranging for a homeowner to have an option to repurchase the homeowner's residence after a sale or transfer; or (j) Arranging for or facilitating a homeowner remaining in the homeowner's residence as a tenant, renter, or lessee. IV. "Pre-foreclosure purchaser" means any person or any person acting in concert with such person, who acquires title or possession of a deed or other interest in a residence in foreclosure as a result of a pre-foreclosure conveyance, or any person who participates in a joint venture or joint enterprise involving a pre-foreclosure conveyance. V. "Pre-foreclosure conveyance" means a transaction involving: (a) The transfer of title to real property or a beneficial interest in the property by a homeowner to delay or prevent a mortgage default or delinquency, foreclosure, or execution of a tax deed, either by transfer of any interest from the homeowner to another party or by creation of a mortgage, trust, or other lien or encumbrance during the foreclosure process, that allows the acquirer to obtain legal or equitable title to all or part of the property; and (b)(1) The transaction includes the subsequent conveyance, the promise of a subsequent conveyance, or a right to a subsequent conveyance of an interest back to the homeowner from the acquirer or a person acting in participation with the acquirer, including an interest in a contract for deed, purchase agreement, land installment sale, contract for sale, option to purchase, sale/leaseback, trust, or other contractual arrangement; or (2) The transaction does not pay or otherwise fully satisfy the homeowner's obligations under any existing note and mortgage securing such note. VI. "Homeowner" means any owner or co-owner of a residence who is facing the loss of a home due to default, acceleration, or foreclosure of a deed of trust, mortgage, lien, or similar instrument or due to the notice, auction, or execution of a tax deed. VII. "Person" means an individual, corporation, governmental subdivision or agency, business trust, estate, trustee for a trust, partnership, association, limited liability company, joint venture, government, or any other legal or commercial entity or agent. VIII. "Residence in foreclosure" means residential real property consisting of not more than 4 dwelling units, one of which the owner occupies as his or her principal place of residence, where a loan secured by the home is in default, or where real property taxes are delinquent. IX. "Settlement" means an in-person meeting with the homeowner to complete final documents incident to the sale or transfer of real property, or the creation of a mortgage or equitable interest in real property, conducted by a settlement agent who is not employed by or an affiliate of the pre-foreclosure purchaser. X. "Execution of tax deed" means the procedures by which residential property is executed to a tax lienholder under RSA 80:76 or executed to a tax sale purchaser under RSA 80:38. XI. "Short sale" means the sale of a homeowner's residence in which the proceeds of the sale, less closing costs, are less than the amount owed, creating a deficit to the seller and in which the sale also results in a short payoff to one or more of the seller's creditors. Source. 2007, 322:1. 2011, 145:1, eff. Aug. 6, 2011.

RSA 479-B:2 Foreclosure Consulting Contracts.

479-B:2. Foreclosure Consulting Contracts. I. A foreclosure consultant shall not enter into any agreement or provide any services on behalf of a homeowner until the homeowner has executed a foreclosure consulting contract. A foreclosure consulting contract shall: (a) Be provided to the homeowner for review before signing; (b) Be written in the same language that is spoken by the homeowner if the homeowner is unable to adequately understand or to express himself or herself in the spoken or written English language; (c) Fully disclose the exact nature of the foreclosure consulting services to be provided, including any pre-foreclosure conveyance that may be involved, and the total amount and terms of any compensation to be received by the foreclosure consultant or any other person involved in the transaction; and (d) Be dated and personally signed by the homeowner and the foreclosure consultant and be witnessed and acknowledged by a notary public or justice of the peace appointed and commissioned by the state of New Hampshire. II. The contract shall contain on the first page: (a) The name, mailing address, physical address, electronic address, and facsimile number of the foreclosure consultant to which the notice of cancellation is to be mailed; and (b) The date the homeowner signed the contract. III. The contract shall be accompanied by a "notice of cancellation," which must be attached to the contract, be easily detachable, and explain the homeowner's right to cancel the contract and how to exercise that right. Each homeowner shall be given 2 copies of the completed notice of cancellation. IV. The foreclosure consultant shall provide the homeowner with a signed and dated copy of the contract and the attached notice of cancellation immediately upon execution of the contract. V. Any provision in a foreclosure consulting contract that attempts or purports to waive any of the rights specified in this chapter are void. Source. 2007, 322:1, eff. July 16, 2007.

RSA 479-B:3 Pre-Foreclosure Conveyances.

479-B:3. Pre-Foreclosure Conveyances. I. No pre-foreclosure conveyance shall transfer any interest in real property unless the homeowner has received, at least 72 hours prior to his or her execution of conveyance documents, a document entitled "notice of loss of ownership." II. The document entitled "notice of loss of ownership" shall: (a) Contain the entire agreement of the parties; (b) Be written in the same language that is spoken by the homeowner if the homeowner is unable to adequately understand or to express himself or herself in the spoken or written English language; (c) Be dated and personally signed by the homeowner and the pre-foreclosure purchaser and witnessed and acknowledged by a notary public or justice of the peace appointed and commissioned by the state of New Hampshire; (d) Describe in detail the terms of the pre-foreclosure conveyance including: (1) The name, mailing address, physical address, electronic address, telephone number, and facsimile number of the person to whom the deed or title will be transferred; (2) The address of the residence in foreclosure; (3) The total consideration to be paid by the pre-foreclosure purchaser, the foreclosure consultant, and any other party as a result of the transfer, and the total consideration paid to the homeowner, with a specific dollar amount stated for each figure; (4) The date on which title is to be transferred to the pre-foreclosure purchaser and the terms of any conveyance; (5) Any financial or legal obligations that the homeowner may remain subject to, such as any mortgages, liens, or other obligations that will remain or be assumed pursuant to the transaction, and an affirmation by the pre-foreclosure purchaser that: (A) The terms of the remaining or assumed obligations are not violated by the pre-foreclosure conveyance; and (B) The pre-foreclosure conveyance will not cause a default in the remaining or assumed obligations; (6) A description of any services of any nature that the pre-foreclosure purchaser will perform for the homeowner before or after the sale or transfer; (7) A complete description of the terms of any related agreement designed to allow the homeowner to remain in the home, including the terms of any rental agreement, repurchase agreement, contract for deed, land installment contract, or option to buy, and any provisions for eviction or removal of the homeowner with an affirmation by the pre-foreclosure purchaser that he or she has verified and can demonstrate that the homeowner has the ability to perform the transaction in a timely manner; and (8) The amount of any repurchase price or fee associated with any transfer of title or deed back to the homeowner and how that fee will be calculated; and (e) Contain a statement, located in immediate proximity to the space reserved for the homeowner's signature, stating: "You have a right to cancel this transaction within 5 business days until midnight of ___ (insert date). If you cancel, you must pay within 60 days $ ___ , which is the amount paid to your lender to stop the foreclosure sale or to the municipality, county, or state to prevent execution of a tax deed." (f) Contain an itemization of amounts expended on the homeowner's behalf to the homeowner's lender to stop the foreclosure sale or to the municipality, county, or state to prevent execution of a tax deed. III. The pre-foreclosure purchaser shall also provide each homeowner with 2 copies of a notice of right to cancel transfer of deed or title immediately on execution of any document that includes a pre-foreclosure conveyance. The notice must be attached to the contract, be easily detachable, and explain the homeowner's right to cancel the contract and how to exercise that right. Each homeowner must be given 2 copies of the completed notice of right to cancel transfer of deed or title. IV. Any provision in a foreclosure consulting contract or other agreement concerning a pre-foreclosure conveyance that attempts to waive the homeowner's rights under this section is void. V. A pre-foreclosure conveyance may not be carried out using a power of attorney from the homeowner to the pre-foreclosure purchaser or any agent or employee of or person acting in concert with the pre-foreclosure purchaser. Source. 2007, 322:1, eff. July 16, 2007.

RSA 479-B:4 Right of Cancellation.

479-B:4. Right of Cancellation. I. In addition to any other right under law to cancel or rescind a contract, a homeowner has the unconditional right to: (a) Cancel a foreclosure consulting contract at any time; and (b) Cancel a pre-foreclosure conveyance at any time before midnight of the fifth business day after the latter of: (1) Any conveyance, or transfer in any manner, of a legal or equitable property interest in a residence in foreclosure; or (2) Delivery of the notices required for pre-foreclosure conveyance. II. Notwithstanding any other provision of this chapter, the homeowner's right of cancellation shall expire upon the sale of the residence to a third party. III. Subject to the limitation of paragraph II, during the pre-foreclosure conveyance cancellation period, no deed or other document affecting title to the homeowner's residence may be recorded, and no interest in the property may be encumbered, transferred, or assigned in any manner. IV. Cancellation occurs when the homeowner gives written notice of cancellation to the foreclosure consultant at the address specified in the contract or through any facsimile or electronic mail address identified in the contract or other materials provided to the homeowner by the foreclosure consultant. V. Notice of cancellation, if given by mail, is effective when deposited in the United States mail, properly addressed, with postage prepaid. If notice is given by facsimile or electronic mail, it is effective when successfully transmitted. VI. Notice of cancellation need not be in the form provided with the contract and is effective, however expressed, if it indicates the intention of the homeowner to cancel the foreclosure consulting contract or pre-foreclosure conveyance. VII. As part of the cancellation of a foreclosure consulting contract or pre-foreclosure conveyance, the homeowner shall repay, within 60 days from the date of cancellation or such longer period of time as may be deemed equitable by the court, any funds actually paid by a foreclosure consultant or pre-foreclosure purchaser to delay or prevent a mortgage default or delinquency, foreclosure, or execution of a tax deed in the form of mortgage arrearage, property tax arrearage, current mortgage payments, current tax payments, late fees, penalties, and any other out-of-pocket expenditures necessary to avoid the loss of the home by the homeowner. The amount to repay shall not include any fees or interest charged by the pre-foreclosure purchaser. VIII. The right to cancel and the return of any property interest to the homeowner may not be conditioned on the repayment of any funds. IX. The period during which a homeowner may cancel a pre-foreclosure conveyance does not commence until each homeowner has received clear, conspicuous, and accurate copies of all notices and documents required by this chapter. X. Within 5 days after receipt of a notice of cancellation given in accordance with this chapter, the pre-foreclosure purchaser shall return, without condition, any original deed, title, contract, and any other document signed by the homeowner. Source. 2007, 322:1, eff. July 16, 2007.

RSA 479-B:5 Unlawful Practices.

479-B:5. Unlawful Practices. I. A foreclosure consultant shall have a fiduciary duty to the homeowner who retains his or her services and shall not act contrary to the interest of the homeowner. II. A foreclosure consultant may not: (a) Enter any agreement or provide any services on behalf of a homeowner until the homeowner has executed a foreclosure consulting contract; (b) Claim, demand, charge, collect, or receive any compensation until after the foreclosure consultant has fully performed each and every service the foreclosure consultant contracted to perform or represented that the foreclosure consultant would perform; (c) Take any wage assignment, any lien of any type on real or personal property, or other security to secure the payment of compensation. Any such security is null and void; (d) Receive any consideration from any third party in connection with foreclosure consulting services provided to a homeowner unless the consideration is first fully disclosed in writing to the homeowner and the third party's interest does not conflict with the homeowner's or create a conflict between the consultant and the homeowner; (e) Acquire any interest, directly or indirectly, or by means of a subsidiary, affiliate, or corporation in which the foreclosure consultant or a member of the foreclosure consultant's immediate family is a primary stockholder, in a residence in foreclosure from a homeowner with whom the foreclosure consultant has contracted; (f) Take any power of attorney from a homeowner for any purpose, except to inspect documents as provided by law; (g) Induce or attempt to induce any homeowner to enter into a foreclosure consulting contract that does not comply in all respects with this chapter; or (h) Create or facilitate a transaction which would violate a homeowner's current deed of trust or other security interest, or which would constitute a default or cause a foreclosure or an acceleration of the debt secured by those agreements. III. A pre-foreclosure purchaser may not: (a) Enter into, or attempt to enter into, a pre-foreclosure conveyance with a homeowner unless: (1) The pre-foreclosure purchaser verifies and can demonstrate that the homeowner has or will have a reasonable ability to pay for the subsequent reconveyance of the property back to the homeowner on completion of the terms of a pre-foreclosure conveyance, and if the pre-foreclosure conveyance provides for a lease with an option to repurchase the property, the homeowner has or will have a reasonable ability to make the lease payments and to repurchase the property within the term of the option to repurchase; and (2) The pre-foreclosure purchaser and the homeowner complete a formal settlement before any transfer of an interest in the property is effected; (b) Assign or transfer or facilitate the assignment or transfer of any interest in the homeowner's property until the requirements of this chapter have been met. Any such transfer or assignment shall be null and void; (c) Obtain any interest in the homeowner's property on terms which would violate a homeowner's current deed of trust or other security interest, or which would constitute a default or cause a foreclosure or acceleration of the debt secured by those agreements; (d) Fail to: (1) Ensure that title to the property has been reconveyed to the homeowner in a timely manner if this chapter or the terms of a pre-foreclosure conveyance agreement require a reconveyance; (2) Sell the property, if allowed under the terms of the conveyance, at a bona fide market sale to an unaffiliated third party; or (3) Make payment to the homeowner within 90 days of any resale of the property so that the homeowner receives cash payments or consideration in an amount equal to at least 90 percent of the net proceeds from any resale of the property should a property subject to a pre-foreclosure conveyance be sold within 36 months after entering into a pre-foreclosure conveyance agreement. As used in this subparagraph, the term "net proceeds from any resale" means the resale price minus any necessary funds actually expended by the pre-foreclosure purchaser on the homeowner's behalf in order to delay or prevent the mortgage default of delinquency, foreclosure, or execution of a tax deed; (e) Represent, directly or indirectly, that: (1) The pre-foreclosure purchaser is acting as an advisor or a consultant, or in any other manner represent that the pre-foreclosure purchaser is acting on behalf of the homeowner; (2) The pre-foreclosure purchaser has certification licensure or affiliations that the pre-foreclosure purchaser does not have; or (3) The foreclosure purchaser is assisting the homeowner to avoid the loss of ownership, to "save the house," or a substantially similar phrase; or (f) Until the homeowner's right to cancel the transaction has expired: (1) Record any document transferring or encumbering any interest in the home; or (2) Transfer or encumber or purport to transfer or encumber any interest in the residence to any third party. IV. (a) The pre-foreclosure purchaser shall make a detailed accounting of the basis for the amount of a payment made to the homeowner of a property resold within 36 months after entering into a pre-foreclosure conveyance agreement. (b) The accounting shall include detailed documentation of expenses and other consideration paid by the pre-foreclosure purchaser and deducted from the resale price. Source. 2007, 322:1, eff. July 16, 2007.

RSA 479-B:6 Waiver of Rights Prohibited.

479-B:6. Waiver of Rights Prohibited. I. A person may not induce or attempt to induce a homeowner to waive the homeowner's rights under this chapter. II. Any waiver by a homeowner of the provisions of this chapter is void and unenforceable as contrary to public policy. Source. 2007, 322:1, eff. July 16, 2007.

RSA 479-B:7 Maintenance of Rights Against Transferee.

479-B:7. Maintenance of Rights Against Transferee. I. Any agreement, encumbrance, assignment or transfer of any interest in violation of this chapter shall be voidable at the option of the homeowner, until the time of a completed conveyance to a third party. II. No action shall be brought under this chapter more than 3 years from the date of the violation. Source. 2007, 322:1, eff. July 16, 2007.

RSA 479-B:8 Violation of the Consumer Protection Act.

479-B:8. Violation of the Consumer Protection Act. A violation of this chapter is considered to be a violation of the New Hampshire consumer protection act, RSA 358-A, and all remedies of the consumer protection act are available for such violations. Source. 2007, 322:1, eff. July 16, 2007.

RSA 479-B:9 Criminal Penalties.

479-B:9. Criminal Penalties. A person who violates any provision of this chapter is guilty of a class A misdemeanor. Source. 2007, 322:1, eff. July 16, 2007.

RSA 479-B:10 Contracts and Notices.

479-B:10. Contracts and Notices. I. All disclosures, contracts, and notices required by this chapter shall be made clearly and conspicuously in language comprehensible by persons without training or knowledge in the area of real property and finance. II. All notices required by this chapter, other than the homeowner's notice that he or she is canceling a contract, shall be printed in at least 14-point type. III. Notices of cancellation that are required by this chapter to accompany certain contracts shall be their own separate documents, not printed on the back of any other document. Source. 2007, 322:1, eff. July 16, 2007.

RSA 479-B:11 Exemptions.

479-B:11. Exemptions. I. The provisions of this chapter shall not apply to: (a) A duly licensed attorney at law acting on behalf of a client; (b) A person who holds or is owed an obligation secured by a lien on any residence in foreclosure while the person performs services in connection with the obligation or lien, if the obligation or lien did not arise as a result of a pre-foreclosure conveyance; (c) Any bank, trust company, savings and loan association, credit union, or insurance company chartered under the laws of any state or the United States or any subsidiary, affiliate, or agency thereof; (d) A prejudgment or post-judgment lien creditor of the homeowner; (e) A person licensed as a mortgage banker or mortgage broker while engaged in any activity for which the person is licensed under RSA 397-A; (f) A person licensed as a real estate broker, associate real estate broker, or real estate salesperson, while engaged in any activity for which the person is licensed under RSA 331-A; (g) A nonprofit organization or government entity that offers counseling or advice to homeowners in foreclosure or loan default, if the organization is not directly or indirectly related to and does not contract for services with for-profit lenders, foreclosure consultants, or pre-foreclosure purchasers; (h) A creditors' committee or trustee participating in a place of reorganization or repayment through a proceeding under the jurisdiction of the United States Bankruptcy Court or (i) A person licensed to engage in the business of debt adjustment under RSA 399-D. II. Notwithstanding any provision of the law to the contrary, the provisions of this chapter shall not apply to a person who purchases a homeowner's residence in a short sale in which: (a) As consideration for the sale, all liens against the property, including mortgages, were discharged or released; (b) If, as part of the sale, a deficiency was required by any creditor, the exact terms and conditions of any deficiencies were disclosed to the borrower by the purchaser at least 72 hours before the transfer. The disclosure shall be: (1) Printed in at least 14-point type and in boldface; and (2) Dated and personally signed by the homeowner and witnessed and acknowledged by a notary public or a justice of the peace appointed and commissioned by the state of New Hampshire; and (c) The homeowner received from the purchaser, at least 72 hours before the transfer, a document entitled "notice of short sale." The document entitled "notice of short sale" shall: (1) Be printed in at least 14-point type; (2) Be dated and personally signed by the homeowner and witnessed and acknowledged by a notary public or a justice of the peace appointed and commissioned by the state of New Hampshire; (3) Contain a prominent statement, printed in at least 16-point type and in boldface, that the homeowner is selling his or her home, will no longer have any ownership of the home after the sale, and will no longer have the right to live in the home after the sale; and (4) Describe in detail the terms of the sale. III. Notwithstanding any provision of the law to the contrary, the provisions of this chapter shall not apply to a person who attempts to negotiate a short sale in which the person would purchase the homeowner's residence as set forth in paragraph II, but does not purchase the homeowner's residence or arrange for another person to purchase the homeowner's residence. Source. 2007, 322:1. 2011, 145:2, eff. Aug. 6, 2011. 2016, 151:2, eff. Jan. 1, 2017.

Source: New Hampshire General Court (gc.nh.gov)URL: https://gc.nh.gov/rsa/html/NHTOC/NHTOC-XLVIII-479-B.htmFetched: 10/20/2026