The following was provided by Connie Boyles Lane, 2010-2011 chair of the Real Property Law Section of the NH Bar Association as advice to members of the Bar.
April 2 update:
I wanted to clarify one aspect of my recent update to the listserv on RSA 397-A. I stated that the Banking Department was unwilling to exempt attorneys from RSA 397-A, but did not elaborate as to the reasons for that determination. The Banking Department feels that it cannot exempt attorneys or change the definition of ancillary without violating the Safe Act and the proposed regulations promulgated by HUD under the Safe Act (final rules are expected by the end of May). Based on information that they have concerning other states' efforts to modify these provisions, HUD would determine that New Hampshire law was not compliant with SAFE. If HUD determines that a state's law is not in compliance, HUD must implement a system for all state licensed mortgage loan originators in the estate, further, HUD would have exam and enforcement powers of New Hampshire loan originators.
There are several resources available to individuals seeking assistance with loan modification. Here is a summary of what I have learned:
HUD Housing Counselors. HUD Housing Counselors can provide loan modification assistance free of charge to individuals. A list of HUD counselors is on the HUD website and can be found on the NH Bar Association website in the "For the Public" section under Mortgage Foreclosures. I have also attempted to set out a list of these agencies at the bottom of this email.
While these HUD counselors are not attorneys, they can provide explain the loan modification process and work with people to obtain a modification from their current mortgage holder. The mortgage counselor at CATCH in Concord, NH, George Helwig, is a former banker and quite knowledgeable about loan modifications. He says that CATCH will assist anyone in Merrimack County with a loan modification issue; that they cannot help, are referred to Pro Bono's foreclosure assistance program.
Pro Bono Foreclosure Program. The Pro Bono foreclosure program is described in the "For the Public" section of the Bar's website. It is designed for low income individuals, so many moderate income families will not qualify.
The Lawyer Referral Program. The Lawyer Referral Program of the NH Bar Association will refer a foreclosure client to its panel of attorneys, but only if the foreclosure process has started. They will also refer people to bankruptcy counsel, if that appears to be an option. Lawyer Referral's number is 603-229-0002.
The Banking Department has taken the position that if you are hired as bankruptcy counsel, then negotiating with the mortgage lender is ancillary to the bankruptcy litigation, and thus under the exemption set forth in Section 397-A: 4, which reads as follows:
A licensed attorney who negotiates the terms of a residential mortgage loan on behalf of a client as an ancillary matter to the attorney's representation of the client, provided that the attorney is not compensated, directly or indirectly, by a lender, a mortgage broker, mortgage servicer, or other mortgage loan originator or by any agent of such lender, mortgage broker, mortgage servicer, or other mortgage loan originator. • HUD Housing Counseling Agencies located in New Hampshire
• National Foreclosure Mitigation Counseling (NFMC) grantees through NeighborWorks® America located in New Hampshire