How to File a Special Proceeding to Recover Foreclosure Surplus Funds in New Hampshire

Detailed Answer

If a foreclosure sale produced money in excess of the amounts owed (a “surplus” or “overage”), New Hampshire law provides a court process to claim that money. The process is a special proceeding filed in the court that handled the foreclosure sale. The general steps below explain what most claimants must do to try to recover foreclosure surplus funds in New Hampshire and what the court will look for.

1. Confirm that a surplus exists and how much.

   Obtain the sheriff’s (or auctioneer’s) sale report and the foreclosure sale accounting. The auction proceeds are first applied to costs, fees, and lien priorities. A surplus remains only if proceeds exceed all secured liens and sale costs. You can ask the court clerk, the sheriff’s office that conducted the sale, or the successful bidder for the sale accounting.

2. Identify the correct court and case number.

   File in the same county Superior Court where the foreclosure was litigated or where the judicial sale was ordered. Use the original foreclosure case number if one exists. If you are unsure which court handled the sale, contact the local Superior Court clerk. New Hampshire’s judicial branch main site is at https://www.courts.state.nh.us/.

3. Determine who has priority and whether you have standing.

   Priority generally follows the order of recorded liens: senior mortgages and tax liens are paid first, then junior liens, and the former owner may receive any remaining surplus. The court will examine recorded deeds, mortgages, and judgments to determine rights to funds. Gather chain-of-title documents, mortgage/satisfaction records, and any judgments or lien certificates to show your claim.

4. Prepare and file a written petition (special proceeding).

   Draft a petition or motion asking the court to order distribution of surplus funds. Typical elements to include:

   • Court caption and foreclosure case number (if available)
   • Your name, address, and relationship to the property (owner, assignee, lienholder, etc.)
   • Legal description and street address of the property
   • Date of the sheriff’s or auction sale and the amount of the surplus you claim
   • Statement of facts establishing your right to the surplus (e.g., recorded deed, recorded mortgage, lien priority)
   • List of other known claimants (e.g., junior lienholders, mortgagee, tax authority) and their addresses if known
   • Documents supporting the claim attached as exhibits
   • Requested relief (order directing the clerk/sherriff to remit funds to you)

   The local clerk can tell you if the court expects any particular caption or form language for a “special proceeding” in that division.

5. Serve notice on interested parties.

   Most courts require that all parties who may have a claim to the surplus be given notice and an opportunity to be heard. Typical parties include the foreclosing mortgagee, any junior lienholders, the former owner, and taxing authorities. Service generally follows the court’s rules for special proceedings: personal service, certified mail, or service by publication if parties cannot be located. The court clerk will explain local service rules and deadlines.

6. File proof of service and any required filing fees or cost deposits.

   After serving the petition, file affidavits or certificates of service with the clerk. Some courts require a filing fee or a cash deposit to cover administrative disbursement costs; check the Superior Court fee schedule or ask the clerk.

7. Attend the hearing and provide evidence of your claim.

   The court may schedule a hearing. Be prepared to explain your claim, present documentary proof (recorded instruments, sale accounting, receipts, affidavits), and respond to competing claimants. The judge will decide entitlement and issue an order directing distribution of the surplus if a claimant is entitled to funds.

8. Obtain and follow the court’s distribution order.

   If the judge grants your claim, the court will direct the clerk, sheriff, or registry to pay you the ordered amount. Follow any steps the order requires, such as providing identification, a completed payout form, or a stamped self-addressed envelope for mailed checks.

9. Consider appeals or competing claims.

   Any party unhappy with the court’s distribution decision may have a limited time to appeal. If multiple claimants dispute priority, the court may hold additional hearings to resolve competing liens. Consult an attorney to evaluate appeal rights and strategy.

Statutory framework and where to look

Key New Hampshire statutes concerning foreclosure sales and related court procedures appear in the New Hampshire Revised Statutes Annotated (RSA). You can search the RSA collection and the chapters governing judicial sale and foreclosure procedure at the state’s RSA website: https://www.gencourt.state.nh.us/rsa/html/ and find court procedures on the New Hampshire Judicial Branch site: https://www.courts.state.nh.us/.

Practical timeline

Timelines vary. Some matters are resolved in a single hearing; others with competing claimants can take weeks or months. Act promptly: delays can complicate locating evidence or parties and may affect rights to the funds.

When you should hire an attorney

If multiple parties claim the surplus, the amount is large, lien priority is unclear, or you are unsure how to draft and serve a proper petition, consult a New Hampshire attorney experienced in foreclosure and real property litigation. An attorney can prepare the petition, ensure proper service, and advocate at hearing.

Helpful Hints

• Start by asking the sheriff’s office and the court clerk for the sale accounting and instructions for filing a special proceeding in that court.
• Collect and organize recorded documents: deed, mortgage, assignments, releases, judgments, and lien filings.
• Make copies of everything and attach certified copies of recorded instruments to your petition when possible.
• Check the Superior Court fee schedule and whether a bond or filing deposit is required; the clerk can provide amounts and payment methods.
• Serve all potential claimants at the addresses shown in the land records or court docket; if a party cannot be located, ask the clerk about service by publication.
• Bring originals of key documents to the hearing, plus extra copies for the judge and opposing parties.
• If you are the former owner, be prepared to show identity documentation and an explanation of any junior liens you claim.
• Get case-specific guidance from a New Hampshire attorney if the distribution involves tax liens, bankruptcy involvement, or conflicting recorded priorities.
• Use the official resources: New Hampshire RSA site (https://www.gencourt.state.nh.us/rsa/html/) and the New Hampshire Judicial Branch (https://www.courts.state.nh.us/) for forms, rules, and local clerk contacts.