Del. Code tit. 10, § 4901 Real estate.
Lands, tenements and hereditaments and all right of dower and curtesy therein when no sufficient personal estate can be found may be seized and sold upon judgment and execution obtained.
Executions
Del. Code tit. 10, ch. 49
in effectDel. Code tit. 10, § 4902 Exempt property.
(a) Every person residing within this State shall have exempt from execution or attachment process, or distress for rent, the following articles of personal property: The family Bible, school books and family library, family pictures, a seat or pew in any church or place of public worship, a lot in any burial ground, all the wearing apparel of the debtor and the debtor’s family.
(b) In addition to the articles specifically named in subsection (a) of this section, each person residing in this State shall have exempt the tools, implements and fixtures necessary for carrying on his or her trade or business, not exceeding in value $75 in New Castle and Sussex Counties, and $50 in Kent County.
(c) All sewing machines owned and used by seamstresses or private families, shall be exempt from levy and sale on execution or attachment process and also from distress and sale for rent. This provision shall not apply to persons who keep sewing machines for sale or hire.
(d) All pianos, piano playing attachments and organs leased or hired by any person residing in this State, shall be exempt from levy and sale on execution or from distress for rent due by such person so leasing or hiring any such piano, piano playing attachment, or organ in addition to other goods and chattels exempt by law. The owner of any such piano, piano playing attachment or organ or such owner’s agent, or the person so leasing or hiring the same shall give notice to the landlord or the landlord’s agent that the instrument is hired or leased.
Del. Code tit. 10, § 4903 Head of family exemption.
Every person residing in this State, and being the head of a family, shall have exempt from execution or attachment process, in addition to the exemptions in § 4902 of this title, other personal property not exceeding $500, the articles to be selected by the debtor. The exemptions in this section shall not apply to goods or chattels of a merchantable character bought to be sold and trafficked in by the person in the prosecution of the person’s regular business or occupation. No person shall have exempt from execution or attachment process any personal property, excepting that which is expressly exempted by § 4902 of this title when such exemption would prevent the collection according to law of any debt or claim that may be due or growing due for labor or services (other than professional services) rendered by any clerk, mechanic, laborer, or other employee of any person or persons against whom such execution or attachment process may be issued.
Del. Code tit. 10, § 4904 Claim of exemption by spouses.
All exemptions of property from judgment lien, execution or forced sale allowed by law to the head of the family may be claimed by both spouses jointly, or by either with the written consent of the other, or half of the exemptions may be claimed by each spouse; but in no case shall both spouses be entitled each to all exemptions allowed by law to the head of a family.
Del. Code tit. 10, § 4905 Evaluation of exempt property; selection of freeholders.
(a) The property exempt and required to be valued by the provisions of §§ 4902 and 4903 of this title shall be valued by 3 judicious and impartial freeholders. One of the freeholders shall be chosen by the creditor having the oldest execution in the hands of the officer holding the writ, 1 other of the freeholders shall be chosen by the debtor, and the other of the freeholders shall be chosen by the officer.
(b) In case the creditor and debtor, or either of them, neglects or refuses to name a freeholder, the officer shall choose for the person neglecting or refusing, and shall give notice to the freeholders thus chosen, in writing, under his or her hand, fixing the time and place in the notice they will be required to meet.
Del. Code tit. 10, § 4906 Procedure of freeholders.
The freeholders shall, upon the receipt of the notice and the tender of the fee named in this subchapter for services in making the valuation, to meet at the time and place mentioned in the notice, and before proceeding to make the valuation of property exempt under §§ 4902 and 4903 of this title and requiring a valuation thereof, shall take the following oath or affirmation, to wit:
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“I do solemnly swear, or affirm, as the case may be, that I will appraise the property of A. B., exempt from execution or attachment process under and by virtue of the laws of this State, at its true value in money, and that I will true schedule make to the best of my knowledge and understanding.”
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They shall then proceed to value the property designated and set apart by the debtor, and to make 2 schedules, distinctly stating the respective articles and their value thereof, with a certificate certifying that the articles mentioned in the schedule have been appraised at their true value in money, and were designated and set apart by the debtor and claimed by the debtor as exempt from execution or attachment process. Such certificate shall be signed by the freeholders or a majority of them. The articles mentioned by name in § 4902 of this title shall not be valued or included in the schedule.
Del. Code tit. 10, § 4907 Fees.
The fees for the service of the freeholders, in making the valuation required by this chapter, shall be the same as are allowed by law to referees before justices of the peace, and the fees to the officer serving the notices shall be the same as are allowed by law for summoning referees before justices of the peace, and shall form a part of the costs of the case upon which the officer is proceeding to make the sale.
Del. Code tit. 10, § 4908 Authority to administer oaths.
The officer making the sale, and serving the notices required, shall administer the oath required by this subchapter.
Del. Code tit. 10, § 4909 Neglect of duty by freeholders; penalty.
Whoever, being a freeholder, neglects or refuses to perform the duties required by this subchapter, shall be fined not more than $5.00.
Del. Code tit. 10, § 4910 Taxation or sale for taxes.
Nothing contained in this subchapter shall be construed as exempting any personal property from taxation, or sale for taxes, under the laws of this State.
Del. Code tit. 10, § 4911 Prohibition against levying upon goods in storage warehouse; violation and penalty.
(a) No constable in the State shall levy upon or sell or offer to sell or to remove, by virtue of any writ or upon any claim or demand whatsoever, any goods and chattels when such goods and chattels have been placed in, and continue to be in, any storage warehouse. No such goods and chattels, so placed, shall hereafter be seized upon or sold, except by the sheriff of the county in which such goods and chattels are located, after such advertisement and under like conditions as are required by law in the case of goods and chattels seized and sold by the sheriff under execution process.
(b) For purposes of this section, a “storage warehouse” is defined as any facility designed for the commercial storage of goods or a self-service storage facility consisting of real property designed and used for the purposes of renting and leasing individual storage space to occupants who are to have access to such for the purpose of storing and removing personal property.
Del. Code tit. 10, § 4912 Waiver of exemptions.
Any husband and wife jointly may make any waiver of any of the provisions of §§ 4902-4911 of this title.
Del. Code tit. 10, § 4913 Exemption and attachment of wages.
(a) Eighty-five percent of the amount of the wages for labor or service of any person residing within the State shall be exempt from mesne attachment process and execution attachment process under the laws of this State; but such limitation shall be inapplicable to process issued for the collection of a fine or costs or taxes due and owing the State.
(b) On any amount of wages due, only 1 attachment may be made. Any creditor causing such attachment to be made shall have the benefit of priority until the judgment with costs for which the attachment was made has been paid in full.
(c) Wages shall include salaries, commissions and every other form of remuneration paid to an employee by an employer for labor or services, but shall not include payment made for services rendered by a person who is self-employed.
Del. Code tit. 10, § 4914 Exemptions in bankruptcy and insolvency.
(a) In accordance with § 522(b) of the Bankruptcy Reform Act of 1978 (11 U.S.C. § 522(b)), in any bankruptcy proceeding, an individual debtor domiciled in Delaware is not authorized or entitled to elect the federal exemptions as set forth in § 522(d) of the Bankruptcy Reform Act of 1978 (11 U.S.C. § 522(d)) and may exempt only that property from the estate as set forth in subsection (b) of this section or otherwise authorized by Delaware state law.
(b) In any federal bankruptcy or state insolvency proceeding, an individual debtor domiciled in Delaware shall be authorized to exempt from the bankruptcy or insolvency estate, in addition to the exemptions made in this subsection and in § 4915 of this title, personal property and/or equity in real property, other than the debtor’s principal residence having an aggregate fair market value of not more than $25,000.
(c) In any federal bankruptcy or state insolvency proceeding, an individual debtor and/or such individual’s spouse domiciled in Delaware shall be authorized to exempt from the bankruptcy or insolvency estate, in addition to the exemptions made in subsection (b) of this section and in § 4915 of this title, the following:
(1) Equity in real property or equity in a manufactured home (as defined in Chapter 70 of Title 25) which constitutes a debtor’s principal residence in an aggregate amount not to exceed $200,000.
(2) A vehicle and/or tools of the trade necessary for purposes of employment in an amount not to exceed $25,000 each.
(d) This section shall apply separately with respect to each debtor in a joint case but not to exceed $25,000 each in value in personal property and/or equity in real property, other than the debtor’s principal residence, a total not to exceed $200,000 in value in a principal residence in an individual or a joint case, and $25,000 each in subsection (c) of this section vehicle and $25,000 each in subsection (c) of this section tools of the trade.
(e) A debtor may not exempt any amount of an interest in property described in paragraph (c)(1) of this section, if the Bankruptcy Court determines, after notice and hearing, that the debtor owes a debt arising from:
(1) Any violation of the federal securities laws (as defined in § 3(a)(47) of the Securities and Exchange Act of 1934 [15 U.S.C. § 78c(a)(47)]), any state securities law, or any regulation or order issued under federal or state securities laws,
(2) Fraud, deceit, or manipulation in a fiduciary capacity or in connection with the purchase or sale of any security registered under § 12 or § 15(d) of the Securities Exchange Act of 1934 [15 U.S.C. § 78l or § 78o(d)] or under § 6 of the Securities Act of 1933 [15 U.S.C. § 77f], or
(3) Any criminal act, intentional tort, or wilful or reckless misconduct that caused serious physical injury or death to another individual in the preceding 5 years.
Del. Code tit. 10, § 4915 Exemption of retirement plans, life insurance contracts, and annuity contracts [For application of this section, see 80 Del. Laws, c. 153, § 5].
(a) In addition to the exemptions provided in §§ 4902 and 4903 of this title, there shall be exempt from execution or attachment process assets held or amounts payable under any retirement plan, life insurance contract or annuity contract.
(b) Any amount qualifying as an “eligible rollover distribution” under § 402 of the Internal Revenue Code of 1986 [26 U.S.C. § 402], as amended, or as a “rollover contribution” under § 408 of the Internal Revenue Code of 1986 [26 U.S.C. § 408], as amended, is treated as an exempt amount under subsection (a) of this section for 60 days after the distribution of such amount. Such amount remains exempt from execution or attachment process if contributed to a retirement plan within 60 days of being distributed from a retirement plan.
(c) Any retirement plan described in subsection (a) of this section shall not be exempt from any claims for relief granted pursuant to Chapter 5 and/or Chapter 15 of Title 13.
(d) Any retirement plan described in subsection (a) of this section shall not be exempt from the claims of an alternate payee under a qualified domestic relations order. However, the interest of any and all alternate payees under a qualified domestic relations order shall be exempt from any and all claims of any creditor of the alternate payee. As used in this subsection, the terms “alternate payee” and “qualified domestic relations order” have the meaning ascribed to them in § 414(p) of the Internal Revenue Code of 1986 [26 U.S.C. § 414(p)], as amended.
(e) A participant or beneficiary of a retirement plan is not prohibited from granting a valid and enforceable security interest in the participant’s or beneficiary’s interest under the retirement plan to secure a loan to the participant or beneficiary from the plan, and the right to assets held in or to receive payments from the plan is subject to execution and attachment for the satisfaction of the security interest or lien granted by the participant or beneficiary to secure the loan.
(f) For purposes of this chapter, “retirement plan” means any plan, trust, account, agreement or other arrangement described in § 401, § 403, § 408, § 408A, § 409, § 414 or § 457 of the Internal Revenue Code of 1986 (26 U.S.C. § 401, § 403, § 408, § 408A, § 409, § 414 or § 457), as amended, including any such plan, trust, account, agreement or other arrangement that a decedent, upon or by reason of the decedent’s death, directly or indirectly transferred, conveyed, transmitted or otherwise left to, or for the benefit of, the owner or beneficiary by means of a will, trust, exercise of a power of appointment, beneficiary designation, transfer or payment on death designation, or any other method or procedure. The terms “life insurance contract” and “annuity contract” shall have the same meanings as under § 1035(b) of the Internal Revenue Code of 1986 (26 U.S.C. § 1035(b)), as amended.
(g) This section shall not exempt from execution or attachment any judgment obtained under § 554 of Title 30.
(h) If this section is held invalid or preempted by federal law, in whole or in part, it shall remain in effect to the maximum extent permitted by law.
Del. Code tit. 10, § 4916 Exemption of qualified tuition programs and qualified ABLE programs.
(a) In addition to the exemptions provided in §§ 4902 and 4903 of this title, there shall be exempt from execution or attachment process assets held in and proceeds payable under or from any account established under a Qualified Tuition Program under § 529 of the Internal Revenue Code of 1986 (26 U.S.C. § 529), as amended (a “Tuition Account”) and any account established under § 529A of the Internal Revenue Code of 1986 (26 U.S.C. § 529A) (an “ABLE Account”). This exemption shall only apply to such amount as does not exceed the total contributions permitted under § 529(b)(6) of the Internal Revenue Code of 1986 (26 U.S.C. § 529(b)(6)) with respect to any Tuition Account or under § 529A(b)(6) of the Internal Revenue Code of 1986 (26 U.S.C. § 529A(b)(6)) with respect to any ABLE Account.
(b) This section shall not exempt from execution or attachment assets contributed by a debtor to any Tuition Account or ABLE Account within 365 days to the extent that such assets contributed within said 365 days exceed the greater of:
(1) $5,000; or
(2) The average annual contribution made by such debtor to such Tuition Account or ABLE Account for the 2 calendar years preceding the date of the filing of such execution or attachment or the filing of such petition.
(c) This section shall not exempt from execution or attachment any judgment obtained under Chapter 5 of Title 13 or § 554 of Title 30. If any portion of this section is held invalid or is preempted by federal law, in whole or in part, the remaining portions shall remain in effect to the maximum extent permitted by law.
(d) In the case of a Tuition Account or ABLE Account owned by a trust, nothing in this section may be construed to limit the protections afforded to trusts by § 3536 of Title 12.
Del. Code tit. 10, § 4931 Wages in New Castle County; limitation; notice of claim; other liens.
(a) In New Castle County all debts or claims that may become due or growing due for labor or services rendered by any mechanic, laborer, clerk or other employee of any person or persons, chartered company or association employing laborers, clerks or mechanics in any manner whatsoever, shall be a first lien on all the real and personal property of such employer or employers, and shall be the first to be satisfied out of the proceeds of the sale of such property, whether made by an officer or an assignee of such employer or employers or otherwise. The debt or claim, so secured to the mechanic, laborer, clerk or other employee, shall not exceed a sum equal to the wages of such mechanic, laborer, clerk, or other employee for 1 month. In no event shall such debt or claim exceed the sum of $50, though the wages for 1 month may be a greater sum. Notice of such claim or debt shall be given to the sheriff, constable, assignee, or other person who shall make or conduct the sale of property subject to the lien or preference hereby provided for.
(b) No lien of a judgment, recognizance, or mortgage shall operate to impair or postpone the lien or preference given and secured to debts or claims mentioned in subsection (a) of this section.
Del. Code tit. 10, § 4932 Wage claims as lien on real estate.
No claim or debt for work, labor, or clerk hire as prescribed in § 4931(a) of this title, shall be a lien upon any real estate unless a copy of such claim or debt is filed in the prothonotary’s office of the county in which such real estate is situated, within 1 month after it has become due and owing, or is growing due and owing. Any person presenting a copy of such claim or debt to be filed in the prothonotary’s office shall accompany it with an affidavit stating that such debt or claim is just and true. The fee to the prothonotary for such service shall be 50 cents.
Del. Code tit. 10, § 4933 False wage claim; penalty.
Whoever makes an affidavit to any debt or claim mentioned in § 4931(a) of this title which is untrue, shall be fined $50.
Del. Code tit. 10, § 4934 Wage claims by minors.
The parent, guardian, or next friend of any minors, who render such service as is mentioned in § 4931(a) of this title, may proceed under this chapter to secure the debt or claim arising from the service or labor rendered by such minor.
Del. Code tit. 10, § 4935 Employees of insolvent corporation.
Employees of insolvent corporations shall have a lien for, and a preference in the payment of, wages due them from such corporation, not exceeding wages for 2 months, as provided in § 300 of Title 8.
Del. Code tit. 10, § 4936 Medical and funeral expenses.
Whenever any sheriff or constable, by virtue of any execution process, supersedes an executor or administrator, and sells the goods and chattels of any deceased person, on whose estate there have been letters testamentary or of administration granted, he or she shall, out of the proceeds of the sale, and before applying any part thereof towards satisfying any execution, pay, first, funeral expenses of the deceased; second, the reasonable bills for medicine and medical attendance during last sickness of the deceased, and for nursing and necessaries for the last sickness of the deceased.
Del. Code tit. 10, § 4937 Payment of medical and funeral expenses by sheriff.
In case there has been no administration or letters testamentary granted on the estate of the deceased, any sheriff or constable selling the deceased person’s goods by virtue of any execution process, shall, before applying any proceeds of the sale towards satisfying any execution, pay in the order in which they stand, the bills mentioned in § 4936 of this title.
Del. Code tit. 10, § 4951 Issuance.
A writ of venditioni exponas for the sale of any goods and chattels, lands and tenements, taken in execution by virtue of a writ of fieri facias, may be issued and directed either to the sheriff in office, or the sheriff’s immediate predecessor (he or she having seized and taken in execution such goods and chattels, lands and tenements) at the election of the plaintiff in the execution; and all proceedings had, by virtue thereof, shall be valid in law.
Del. Code tit. 10, § 4952 Failure or neglect in execution; penalty.
The person to whom such writ of venditioni exponas may be directed, shall, for neglect, or failure, in the execution thereof, or in making return thereon, be subject to all such rules of court, suits, fines, and other process and proceedings, except that the sheriff shall not be subject to suit or liable for damages.
Del. Code tit. 10, § 4961 Procedure for public sale.
By a writ of levari facias, the sheriff, or other officer, to whom the same is directed to be executed, may seize and sell, at public sale, unimproved lands, and lands yielding no yearly profit, with, or without a writ of venditioni exponas; subject to the same provisions respecting notice of sale, application of the proceeds thereof, the execution of a deed to the purchaser, the issuing of a liberari facias for the delivery of lands which cannot be sold, and the title under such sale, or delivery, as are contained in this chapter for the sale of lands under execution process in other cases.
Del. Code tit. 10, § 4971 Time of sale of goods and chattels.
Goods and chattels, taken in execution by a sheriff shall not be sold until the expiration of 30 days after the levy thereon and notice thereof to the defendant, unless the court, issuing the execution, shall, upon application of the plaintiff, or of the officer holding the execution, and on its being shown that the goods and chattels are of a perishable nature, or will create a charge by keeping, order the same to be sold sooner. Such order shall direct reasonable notice of the sale, according to the circumstances.
Del. Code tit. 10, § 4972 Notice of public sale of goods and chattels.
Public notice of the sale of goods and chattels by a sheriff under execution process, and of the day, hour, and place thereof, shall be given by advertisements posted, at least 10 days before the day of sale, in 5, or more, public and suitable places in the county, 2 of which, at least, shall be in the hundred of the defendant’s residence, if the defendant resides in the county. One such advertisement shall, 10 days at least before the day of sale, be delivered to the defendant, and 1 to each plaintiff in the execution, and also to each plaintiff in any other execution, or executions, at the time in the hands of the sheriff or shall be left at the usual place of abode of such defendant and plaintiffs respectively, if there be such place of abode within the county. If any plaintiff in any such execution resides out of the county, such advertisement shall be delivered to the attorney of such plaintiff, if there is an attorney of record, and 1 such advertisement shall be transmitted to such plaintiff by mail, being enclosed and addressed to the plaintiff at the post office nearest the plaintiff’s place of abode. Advertisement shall also, at least 10 days before the day of sale, be delivered to the defendant’s landlord, or the landlord’s agent, if there is such residing in the county. This section and § 4971 of this title do not apply to execution process issued by justices of the peace or the Court of Common Pleas.
Del. Code tit. 10, § 4973 Notice of public sale of real estate.
(a) Public notice of the sale of lands and tenements under execution process, shall be given by advertisements posted, at least 10 days before the day of sale, in 10 of the most public places of the county where the premises are situated, setting forth the day, hour and place of sale, and what lands and tenements are to be sold, and where they lie. One of the advertisements shall be posted in the hundred in which the premises are located, and 1, at least, in each of the hundreds which immediately adjoin the hundred. A like advertisement shall be delivered at least 10 days before the day of sale to the defendant, or left at the defendant’s usual place of abode, if the defendant has a known place of abode in the county; if the defendant does not reside in the county, notice shall be served on the tenant, or if there is no tenant, shall be left at the mansion house or other public place on the premises. Section 4972 of this title respecting the delivery of an advertisement of the sale of goods and chattels under execution process, to each plaintiff in the execution, and also to each plaintiff in any other execution or executions, at the time in the hands of the sheriff, shall be in all respects applicable to the case of the sale of lands and tenements under execution process. Notice of such sale shall also be advertised for 2 weeks previous to the time of the sale in:
(1) A newspaper of general circulation published in the county wherein the property is situated; and
(2) A newspaper of general or limited circulation published nearest to the place where the property is situated.
Both newspapers are to be selected by the sheriff. Not more than 3 insertions per week shall be made in any 1 newspaper. If there is only 1 newspaper published in the county at the time, the sheriff may select a newspaper in 1 of the other counties, and if there is no newspaper in the county the sheriff may select 2 in the other counties. The publishers of the newspapers shall not be paid for such advertising a higher rate than their ordinary charges for transient advertisements.
(b) In advertisements of notice of sale of real estate in newspapers, by the sheriff of any county in this State, under execution process, it shall be sufficient if the property to be sold is described therein in such manner that it may be readily identified. It shall not be necessary to describe the property by metes and bounds, or courses and distances. Nor shall it be necessary in any case to follow the description of the property in the writ of execution under which it is sold.
Del. Code tit. 10, § 4974 Place for public sale of real estate.
(a) As used in this section, “public building” and “public property” mean a building or property that is open to members of the public who wish to attend a sheriff’s sale. “Public building” or “public property” includes a building or property not owned by the government or a governmental entity.
(b) All sales of real estate, made by a sheriff by virtue of execution process, shall be made at any 1 of the following locations:
(1) On the premises to be sold.
(2) At the courthouse for the county in which the premises are situated.
(3) At the Sheriff’s Office or the building in which the Sheriff’s Office is located.
(4) At any public building or outdoors on any public property located in the county where the premises are situated.
(c) Unless otherwise directed by court order, the sheriff conducting a sale retains exclusive authority to determine the location and means for the sale of real property by virtue of execution as permitted by subsection (b) of this section.
Del. Code tit. 10, § 4975 Officer conducting sale as barred from purchasing.
A sheriff, constable, or other person making sale of goods and chattels by virtue of any process, or order, shall not either directly, or by the agency of another, purchase any of such goods or chattels. Any person offending against this section, shall forfeit and pay double the value of the goods, or chattels, so purchased, to be recovered as debts of like amount are recoverable, one half for the use of the State, and the other half for the use of the person suing.
Del. Code tit. 10, § 4976 Deed of sheriff’s sale.
Upon confirmation by the court of any sale of lands and tenements, made by virtue of execution process, the sheriff, or officer making the sale, shall execute, acknowledge and deliver to the purchaser a good and sufficient deed for the premises so sold.
Del. Code tit. 10, § 4977 Grantee’s title.
The grantee in any deed, executed under § 4976 of this title, shall hold the premises therein conveyed, with all their appurtenances, as fully and amply, and for such estate and estates, and under such rents and services, as the person or persons, for whose debt, or duty, the property is sold, might, or could, do at or before the taking thereof in execution.
Del. Code tit. 10, § 4978 Rent; time of entitlement; apportionment; proceedings.
(a) In any case of sale, the purchaser shall be entitled to rent for the premises sold from the day of sale. If such premises are in possession of a tenant under rent, such rent shall be apportioned, according to the time; the proportion for the time the rent has been growing due to the day of sale, being payable to the lessor or the lessor’s assigns, and the residue to the purchaser. Each party shall have remedy by distress, or action, for such party’s just proportion.
(b) A purchaser may recover his or her proportion of rent, although such rent is reserved by deed (as well as rent from the day of sale, in case no rent has been reserved) by a civil action for use and occupation.
(c) In any action, or proceeding, for such rent, any fair defense, which would have availed against the person as whose property the premises were sold, shall avail against the purchaser. If a rent reserved is not a fair rent for the premises, and the lease, or contract, is posterior to the order, or to the date of the judgment, in execution, or by virtue whereof the sale is made, the purchaser shall not be limited by the rent reserved, but may demand and recover a fair rent. If the crop is sold separately from the soil, the demand of the purchaser shall proportionally abate.
Del. Code tit. 10, § 4979 Petition for deed.
If a sale is made of lands and tenements by order of the Court of Chancery, or by virtue of an execution, and the officer making such sale, or the purchaser, is dead, or if such officer is out of office, and the purchase money is paid, without a deed being made pursuant to such sale, the purchaser, or other person having right under the purchaser by descent, devise, assignment, or otherwise, may prefer to the Superior Court, or Court of Chancery, at any term of such courts respectively, in the county wherein the premises are situate, a petition representing the facts, and praying for an order authorizing and requiring the sheriff, or if there is legal exception to the sheriff, a local law-enforcement officer for the time being, to execute and acknowledge a deed conveying to the petitioner the premises so sold, or a just proportion thereof. Thereupon the Court may make an order touching the conveyance of the premises according to justice and equity.
Del. Code tit. 10, § 4980 Deed executed after petition; effect on title.
A deed, executed pursuant to an order made under § 4979 of this title, shall pass to the grantee therein all the title and estate to and in the premises therein conveyed, which, in pursuance of the sale, and of the execution, or order by virtue whereof such sale was made, can, or ought to be passed. If the person, to whom such deed is executed, is not entitled to the same, according to justice and equity, or if a greater estate is conveyed to the grantee than the grantee is justly entitled to, such deed, or order, shall not prejudice any person having right; but such deed may be decreed to be upon trust, or any person, having right, may be otherwise relieved according to equity and good conscience.
Del. Code tit. 10, § 4981 Recordation of petition and order; evidentiary value.
An order made upon a petition, being duly certified, the petition and order shall be recorded in the office of the recorder of deeds for the county wherein the premises are situate; and such record, or a certified copy thereof, shall be competent evidence of such petition and order.
Del. Code tit. 10, § 4982 Deed after execution by sheriff’s predecessor.
A deed for lands and tenements, sold by virtue of a writ of venditioni exponas, directed to the predecessor of the sheriff at the time in office, such predecessor having seized and taken in execution such lands and tenements, shall be valid in law, without petition to, or order of, any court for making such deed.
Del. Code tit. 10, § 4983 Deed by sheriff after expiration of term.
Whenever an execution for sale of lands and tenements shall be directed and delivered to a sheriff in office, whose term expires before the confirmation of the sale made under and by virtue of the execution, or whose term expires after confirmation of the sale, but before the execution and acknowledgment of the deed to be made in pursuance thereof, then and in either case the sheriff making the sale may as late sheriff make, execute and acknowledge a deed for the lands and tenements so sold to the purchaser thereof in pursuance of the confirmation, and the deed so made, executed and acknowledged by the sheriff as late sheriff shall be good and valid in law. Such deed shall be made, executed and acknowledged by the sheriff within 2 years from the date of the confirmation of the sale.
Del. Code tit. 10, § 4984 Deed by sheriff appointed to fill vacancy.
Whenever an execution for sale of lands and tenements is directed and delivered to a sheriff in office who dies before the confirmation of the sale made under and by virtue of the execution, or who dies after confirmation of the sale but before the execution and acknowledgment of the deed to be made in pursuance thereof, then and in either case the sheriff appointed to fill the vacancy may make, execute and acknowledge a deed for the lands and tenements so sold to the purchaser thereof in pursuance of the confirmation, and the deed so made, executed and acknowledged by that sheriff shall be good and valid in law.
Del. Code tit. 10, § 4985 Discharge of liens upon execution sale; exceptions.
Real estate sold by virtue of execution process shall be discharged from all liens thereon against the defendant, or against one or more of the defendants, if there is more than one, whose property such real estate is, except such liens as have been created by mortgage or mortgages prior to any general liens; and with respect to such, the sale shall be a discharge to the extent to which the proceeds thereof may be legally applicable to a judgment or judgments obtained for the debt, to secure the payment of which the mortgage or mortgages respectively, if there is more than one, appear to have been given, and the real estate shall also be discharged from all right of dower and curtesy therein of any defendant in the execution.
Del. Code tit. 10, § 4986 Payment into court of unclaimed proceeds from execution sale; disposition by court.
Whenever the sheriff or any other officer cannot pay over the proceeds from sale under execution process because the person or persons entitled to the same or any part thereof is or are absent from the State, unknown or incompetent to receive the same or where there is any lien by mortgage, judgment or recognizance (not being the first) against the defendant, or some one or more of them, if there is more than 1, in the process referred to in § 4985 of this title, with condition other than for the payment of money, or for the payment of money as or in the nature of an annuity, or for the payment of interest to 1 or more persons during their lifetime and the principal at their death to some other person or persons, or otherwise, such proceeds from sale under execution process that cannot be paid over because the person or persons entitled to some or any part thereof is or are absent from the State, unknown or incompetent to receive the same, and such part of the proceeds of sale as shall be legally applicable to any such lien as set out above shall be paid into the court, out of which the process issued, and shall be invested by the court, or otherwise disposed of for the benefit of the parties interested, as shall be just and proper under the circumstances. Such payment into court shall discharge the officer selling the property from all liability for the money so paid.
Del. Code tit. 10, § 4987 Sheriff’s record of sale proceeds.
The sheriff shall, in proper books, keep a record of the disposition of all moneys arising from the sale of property under execution process, when the same is applicable otherwise than to executions in the sheriff’s hands, as provided in § 2106 of this title.
Del. Code tit. 10, § 5001 Awarding of writ.
If lands and tenements, exposed to sale by virtue of execution process, cannot be sold for want of buyers, the sheriff, or officer, shall make return upon the writ accordingly. Such return shall not make the officer liable for the debt or damages contained in the writ; but a writ of liberari facias shall be awarded and directed to the proper officer, commanding that officer to deliver to the plaintiff such part, or parts, of the premises as shall satisfy the plaintiff’s debt, or damages, with interest and costs, according to the valuation of 12 individuals, to hold to the plaintiff as the plaintiff’s free tenement, in satisfaction of the plaintiff’s debt, damages and costs, or so much thereof as the premises, by the valuation of 12 individuals will amount to.
Del. Code tit. 10, § 5002 Execution for residue of debt.
If lands delivered upon a liberari facias under § 5001 of this title fall short, according to the valuation, of satisfying the whole debt, damages and costs for which they are delivered, the plaintiff may have execution for the residue as in other cases.
Del. Code tit. 10, § 5003 Title under execution and return of writ.
The execution and return of a writ of liberari facias shall, without deed, or other act, pass to the party to whom the lands are delivered, the same title and estate therein which is taken by a purchaser of lands sold under execution process, and conveyed by deed from the sheriff, or officer selling the same.
Del. Code tit. 10, § 5011 Awarding of writ.
(a) If lands and tenements are sold by order of the Court of Chancery, or by virtue of execution process, and the defendant, or 1 or more defendants, or any person holding as tenant under such defendant, or defendants, by lease, or contract, posterior to such order, or to the date of the judgment whereon such execution was issued, is in possession of the premises sold; or if such defendant, or defendants, have died in possession of the premises sold within 1 year next preceding the day of sale, and the person in possession either has come into possession after such defendant, or defendants, and by means of his or her or their possession, or holds under, or through a person so coming into possession, the purchaser may have a writ of possession awarded, pursuant to such sale.
(b) In the event of a judicial sale at law or equity under and by virtue of the foreclosure of any mortgage, or execution upon a mechanic’s lien, the purchaser at the judicial sale may have a writ of possession awarded against any person in possession of the real estate so sold, provided the rights of such person in possession arose posterior to the date of the mortgage, or the effective date of the mechanic’s lien.
Del. Code tit. 10, § 5012 Rule to show cause; requirement.
The Court of Chancery, if the sale is by its order, or the court out of which the execution issued, if the sale is by virtue of an execution, upon application of the purchaser, and oath or affirmation by the purchaser, or some credible person for the purchaser, in writing, stating a proper case for the awarding of such writ, shall grant a rule upon the defendant, or defendants, owner or owners of the premises sold, and also upon the person in possession of the premises, if any person other than the defendant is in possession, to show cause, on a day in the rule specified, why a writ of possession shall not be awarded for putting the purchaser in possession of the premises. A writ of possession shall not be issued without such rule made absolute.
Del. Code tit. 10, § 5013 Time of applying for writ.
A rule for a writ of possession may be granted in the Superior Court at the term of the return of the sale or at any one of the next 3 succeeding terms thereafter, and in the Court of Chancery within 1 year from the return of the sale.
Del. Code tit. 10, § 5014 Service of rule.
The rule referred to in § 5013 of this title shall be served at least 2 days before the expiration thereof. If the sheriff or other person who is attempting to serve the rule is unable to serve the rule upon the defendant personally, service may be made in such manner as the court by order may direct or in such manner as may be prescribed by a rule of court.
Del. Code tit. 10, § 5015 Defendant as bona fide tenant.
If the defendant is in possession bona fide as tenant under, or by possession of another, a writ of possession shall not be awarded.
Del. Code tit. 10, § 5016 Defendant as joint owner.
If the defendant is owner of an undivided share, the writ of possession shall be restricted to such share; and any holder of another share, or such holder’s tenant, shall not be removed, or further disturbed than by putting the purchaser into peaceable possession of the undivided share of the defendant.
Del. Code tit. 10, § 5017 Stay of execution of writ.
On making the rule for a writ of possession absolute, the court may direct a reasonable stay of execution. If the person in possession is a tenant, execution shall be stayed until the usual expiration of the year of tenants, according to the custom of letting in the place, or neighborhood, wherein the premises are situate.
Del. Code tit. 10, § 5018 Form of writ.
(a) A writ of possession may be according to the following form:
County, ss. The State of Delaware, To the Sheriff of said County, greeting:
* * * * * * * L. S. * * * * * * *
out of our (here insert the style of the court) in the said County, returnable to term, 20, at the suit of plaintiff vs. defendant; and have this writ, with your doings thereon certified, at our said Court to be held at ., on day of next.
Witness at the day of in the year of our Lord two thousand and
Prothonotary.
(b) If there is legal exception to the sheriff, the writ may be directed to a local law-enforcement officer.
(c) If the sale is by order of the Court of Chancery, omit from the word “execution” to the word “defendant,” both inclusive, and instead thereof insert, “an order of our Court of Chancery, at in a certain cause between plaintiff and defendant.” The writ may be adapted to the case by any necessary variation in the form.
Del. Code tit. 10, § 5019 Effect of writ on title and on other remedies.
Nothing contained in this subchapter shall deprive a purchaser of his or her remedy by a civil action in the nature of an action of ejectment, nor debar from such remedy a person removed from possession; and any proceedings under this subchapter, shall not be conclusive as to the title of either party.
Del. Code tit. 10, § 5031 Execution attachment.
The plaintiff in any judgment in a court of record, or any person for such plaintiff lawfully authorized, may cause an attachment, as well as any other execution, to be issued thereon, containing an order for the summoning of garnishees, to be proceeded upon and returned as in cases of foreign attachment. The attachment, condemnation, or judgment thereon, shall be pleadable in bar by the garnishee in any action against the garnishee at the suit of the defendant in the attachment. Goods which are perishable, or will create a charge by keeping, may be sold on the order of a judge as in cases of foreign attachment.
Del. Code tit. 10, § 5032 Answer by garnishee.
The answer of a garnishee in any execution attachment, at the option of the plaintiff therein, may be taken by affidavit before any person legally authorized to administer oaths. When so taken and filed with the writ of attachment it shall be docketed in the same manner and have the same effect as if taken in open court. The garnishee’s mileage, in such cases, shall be counted from the garnishee’s residence to the office of the person taking the garnishee’s affidavit, and endorsed thereon.
Del. Code tit. 10, § 5041 Fieri facias; time of return.
Every fieri facias shall be actually returned by the sheriff to whom it was delivered before the rising of the court, to which it is returnable, on the second day after the return day mentioned in the writ, with the sheriff’s certificate of what the sheriff has done thereon in usual and legal form.
Del. Code tit. 10, § 5042 Inventory of unsold goods and chattels.
Where the levy, or return, by virtue of a fieri facias has been of goods and chattels unsold at the return day, the sheriff shall annex to the writ an inventory of each article of such goods and chattels.
Del. Code tit. 10, § 5043 Specification of lands seized or levied upon.
If there has been a levy, or seizure, of lands, the sheriff’s return shall specify the principal improvements thereon; if any, as well as the known, or computed, quantity and situation thereof.
Del. Code tit. 10, § 5044 Specification of prior executions.
(a) Where the levy, or seizure, is returned as made subject to prior execution, the sheriff or other officer shall, in the officer’s endorsed, or annexed return, set forth as well the names of the plaintiffs in such prior executions as have come to the officer’s hands, as the sums thereby to be levied.
(b) When the sheriff or other officer, to whom an execution is directed, levies or receives the sum due thereon, or any part thereof, or obtains a settlement of the execution, such officer shall make return thereof, as provided by § 4755 of this title.
(c) When such sheriff or other officer has sold real estate by virtue of execution process, such officer shall, in his or her return to such process, expressly show to what lien or liens the money arising from the sale has been applied, and how much has been applied to each lien, as provided by § 4756 of this title.
Del. Code tit. 10, § 5045 Sheriff’s neglect in making return [Repealed].
Del. Code tit. 10, § 5051 Issuance of writ.
(a) No writ of capias ad satisfaciendum shall be issued upon any judgment in a civil action against any person in this State, until a writ of fieri facias on the judgment has issued, and it appears from the return of such fieri facias, that the defendant therein has not either real, or personal property within the county sufficient to satisfy the debt, or damages in the fieri facias expressed; or until the plaintiff in such judgment, or some credible person for the plaintiff, makes a written affidavit, to be filed in the prothonotary’s office before the issuing of the writ, stating that he or she verily believes that the defendant has not either real, or personal, estate sufficient to satisfy the debt, interest and costs contained in such judgment.
(b) Any writ of capias ad satisfaciendum issued, contrary to the provision in subsection (a) of this section shall be void, and the plaintiff obtaining such writ shall be liable to all the costs of the same.
Del. Code tit. 10, § 5052 Plaintiff’s affidavit of fraud; exceptions from requirement.
(a) No writ of capias ad satisfaciendum shall be issued out of any court of this State upon a judgment in a civil action, against any person in this State, nor shall any such person be imprisoned for the nonperformance of a judgment rendered in any court for the payment of money, until the plaintiff in such judgment, or the party in whose favor the judgment rendered shall be, or some credible person for the plaintiff, shall, in addition to the requirement of § 5051 of this title make a written affidavit, to be filed in the office of the prothonotary or the Register in Chancery, as the case may be, before the issuing of the process, stating that the defendant in such judgment is justly indebted to the plaintiff in a sum exceeding $50, and that he or she verily believes the defendant has secreted, conveyed away, assigned, settled, or disposed of either money, goods, chattels, stocks, securities for money, or other real, or personal estate, of the value of more than $50, with intent to defraud his or her creditors; and shall moreover, in such affidavit, specify and set forth the supposed fraudulent transactions.
(b) Any writ of capias ad satisfaciendum, issued contrary to the provision of subsection (a) of this section, shall be void, and the plaintiff obtaining such writ shall be liable to all the costs of the same.
(c) The provisions of this section shall not apply to any person imprisoned by authority of the United States, nor to any other than execution, or final process, or commitment, for debt, or damages, or costs, of a civil action, or nonperformance of a judgment rendered for the payment of money.
Del. Code tit. 10, § 5053 Motion denying fraud; disposition.
The court in which the affidavit referred to in § 5052 of this title is filed shall, upon motion of the person arrested, and reasonable notice in writing to the party in whose favor the process issued, or such party’s attorney, investigate the specifications of fraud in an affidavit made under § 5052 of this title; and, upon such investigation, may discharge the movant from imprisonment, or the movant for trial not later than the next term of the court of the county wherein the process issued, upon a denial, in the motion, of the specifications of fraud, or may make such order in the premises as the court deems just and proper.
In the Superior Court, the trial referred to in this section shall be by the Court unless a trial by jury is demanded by the movant.
Del. Code tit. 10, § 5061 Occasion for suing out writ; parties and notice [For application of this section, see 82 Del. Laws, c. 30, § 3].
(a) Subject to the provisions of §§ 5062A, 5062B, 5062C and 5062D of this title, upon breach of the condition of a mortgage of real estate by nonpayment of the mortgage money or nonperformance of the condition stipulated in such mortgage at the time and in the manner therein provided the mortgagee, the mortgagee’s heirs, executors, administrators, successors or assigns may, at any time after the last day whereon the mortgage money ought to have been paid or other conditions performed, sue out of the Superior Court of the county wherein the mortgage premises are situated a writ of scire facias upon such mortgage directed to the sheriff of the county commanding the sheriff to make known to the mortgagor, and those persons described in subsection (b) of this section and such mortgagor’s heirs, executors, administrators or successors that the mortgagor or they appear before the Court to show cause, if there is any, why the mortgaged premises ought not to be seized and taken in execution for payment of the mortgage money with interest or to satisfy the damages which the plaintiff in such scire facias shall, upon the record, suggest for the nonperformance of the conditions.
(b) In addition to the mortgagor, and such mortgagor’s heirs, executors, administrators or successors, the following persons shall be necessary parties in every mortgage foreclosure action:
(1) Record owners acquiring title subject to the mortgage (terre tenants) which is being foreclosed upon; and
(2) Persons having an equitable or legal interest of record, including an interest pursuant to a judicial sale or a statutory sale pursuant to § 8771 et seq. of Title 9.
(c) The following persons whose real or equitable interests in the real estate may be adversely affected by plaintiff’s cause of action shall not be deemed to be necessary parties and shall not be required to be joined as a defendant in mortgage foreclosure actions:
(1) Lien holders; and
(2) Tenants seised of an estate for years or at will.
Notice in writing, however, shall be given to the above classes of persons in the manner prescribed from time to time by the civil rules of the Superior Court of the State. It is the intent of this subsection that written notice be deemed sufficient in lieu of joinder to protect the property interests of the above classes of persons in the mortgaged real estate since those property interests are created and defined by the legal operations of existing statutes and law.
(d) The Superior Court may make all necessary rules respecting the form of process, the manner of issuance and return thereof, modes of proof and the manner of notice to persons having an interest in the real estate which relate to mortgage foreclosure proceedings.
(e) Those persons identified in subsection (b) of this section need not be joined as necessary parties in a mortgage foreclosure action when their interest arises subsequent to the filing of the mortgage foreclosure action. Any person acquiring an interest defined in subsection (b) of this section subsequent to the filing of the foreclosure action and at least 30 days prior to the sheriff’s sale scheduled in the cause shall be given written notice in accordance with the rules of the Superior Court. Any person acquiring a property interest in real estate within 30 days prior to the sheriff’s sale scheduled in the cause shall not be entitled to receive written notice of the sale, the public records of the foreclosure being sufficient notice.
Del. Code tit. 10, § 5062 Land divided by county line; venue of action.
Whenever the dividing line between any 2 counties of this State runs through a tract of land conveyed in mortgage, a writ of scire facias may be sued out in either county in which any part of such tract is situated, directed to the sheriff of the county in which such writ is sued out. The sheriff may make service of the writ, notwithstanding any person or persons liable to such service in and residing in this State may live outside the sheriff’s bailiwick. The Superior Court of the county wherein such action is brought may give definitive judgment upon such scire facias with the same effect as if the lands lay wholly within such county.
Del. Code tit. 10, § 5062A Loss mitigation affidavit required.
(a) In connection with any mortgage foreclosure action brought under § 5061 of this title with respect to an owner-occupied 1- to 4-family primary residential property, unless the mortgage is held by the seller of the subject property who does not hold more than 5 such mortgages, the defendant must have an opportunity to apply for relief under a federal loss mitigation program for which the defendant may be eligible including, but not limited to, the Home Affordable Modification Program, the Second Lien Modification Program, the Home Affordable Unemployment Program, and the Home Affordable Foreclosure Alternatives Program, together with any proprietary loss mitigation programs offered by the plaintiff for which defendant may be eligible. A plaintiff in a mortgage foreclosure action may establish that it provided a defendant with the opportunity to apply for relief contemplated by this paragraph if, for example, the plaintiff provides the defendant with a list of the applicable loss mitigation programs in which the plaintiff participates and instructions for how to initiate an application for each such program, which list and instructions may be included in the notice of intent to foreclose required by § 5062B of this title.
(b) No judgment may be entered in any mortgage foreclosure action brought under § 5061 of this title with respect to an owner-occupied 1- to 4-family primary residential property, and no owner-occupied 1- to 4-family primary residential property that is the subject of a judgment of foreclosure that has not gone to sheriff’s sale as of January 19, 2012, may be sold at sheriff’s sale, unless the plaintiff has filed a fully executed affidavit asserting:
(1) That the defendant has been provided with the opportunity to apply for relief under any loss mitigation program for which the defendant may be eligible, as described in subsection (a) of this section, and
(2) That the loan secured by the mortgage for which plaintiff seeks foreclosure is:
a. Not subject to a loss mitigation program; or
b. Is ineligible for any applicable loss mitigation program due to the defendant’s failure to apply, or failure to provide required information, or failure to complete the requirements of the program; or
c. Is determined by the plaintiff to be otherwise ineligible for any applicable loss mitigation program.
(c) If an affidavit required by subsection (b) of this section is false with respect to the accuracy of any statement required by paragraphs (b)(1) and (b)(2) of this section, the foreclosure action shall be dismissed by the court without prejudice and a complaint may be refiled by the plaintiff, but no fees or other costs shall be charged to the defendant in connection with the dismissed action.
(d) This section applies to the following mortgage foreclosure actions:
(1) Actions filed on or after January 19, 2012.
(2) Actions pending in the Superior Court on January 19, 2012, which have not gone to judgment or sale.
(e) [Repealed.]
Del. Code tit. 10, § 5062B Required notices.
(a) (1) Except as provided in paragraph (a)(2) of this section, with respect to an owner-occupied 1- to 4-family primary residential property, a mortgage foreclosure action may not be filed until 45 days after a notice of intent to foreclose is sent in the form and manner required by paragraph (a)(3) of this section, which notice may not be sent until the obligor on the loan secured by the mortgage has defaulted on the obligation set forth in the terms of the loan.
(2) The notice of intent to foreclose required under paragraph (a)(1) of this section is not required if the property subject to the mortgage has been abandoned, if the mortgage is held by the seller of the subject property who does not hold more than 5 such mortgages, if the obligor on the loan secured by the mortgage has voluntarily surrendered the property to the obligee, or if the default has continued after the automatic stay has been lifted or terminated in a bankruptcy proceeding, or if the default has continued after the bankruptcy proceeding has been dismissed.
(3) a. The notice of intent to foreclose required under paragraph (a)(1) of this section must be sent by all of the following methods:
1. To all borrowers by certified mail, postage prepaid, return receipt requested, bearing postmark from the United States Postal Service.
2. To all borrowers by first-class mail.
b. The notice of intent to foreclose must contain all of the following:
1. The following heading, in English and in Spanish, in at least 30-point boldface type, at the beginning of the notice:
“NOTICE REQUIRED BY DELAWARE LAW: TAKE ACTION TO SAVE YOUR HOME FROM FORECLOSURE”
2. A statement, in English and in Spanish, in at least 14-point boldface type, immediately following the heading, in substantially the following form with such additions and deletions as may be recommended by the administrator of the Residential Mortgage Foreclosure Mediation Program from time to time:
“This is an official Notice that the mortgage on your home is in default, and the lender intends to foreclose. Specific information about the nature of the default may be provided in the attached pages.
Mortgage foreclosure is a complex process. Some people may approach you about ' saving’ your home. You should be careful about any such promises. The State encourages you to become informed about your options in foreclosure before entering into any agreements with anyone in connection with the foreclosure of your home. There are government agencies and nonprofit organizations that you may contact for helpful information about the foreclosure process. For the name and telephone number of an organization near you, please refer to the list later in this Notice. The State does not guarantee the advice of these organizations. Do not delay dealing with the foreclosure because your options may become more limited as time passes.
EMERGENCY FINANCIAL HELP MAY BE AVAILABLE
The Delaware State Housing Authority (“DSHA”) may be able to help to save your home. DSHA has loan programs to provide Delaware homeowners with assistance in preventing residential mortgage foreclosures that result from circumstances beyond their control. If you are delinquent on your mortgage, you should meet with a U.S. Department of Housing and Urban Development (“HUD”) certified housing counselor as soon as possible and explore your options prior to applying to any DSHA programs. To find a HUD-certified housing counselor, refer to the list later in this Notice. Take this Notice with you when you meet with the HUD-certified housing counselor.
3. The following phrase, in English and in Spanish, in at least 14-point boldface type:
“For information on how to reinstate your loan, call the following telephone number: ________________ .”
and the telephone number of a contact person or department the homeowner may call to obtain specific instructions on how to reinstate the mortgage loan.
4. A statement, as of the date of the notice, of the nature of the default, the amount required to cure the default and reinstate the loan, including all past due payments, penalties, and fees, and any other actions the homeowner must take to cure the default.
5. A list of HUD-certified housing counselors and their contact information.
6. The phone number for the Delaware Attorney General’s Foreclosure Hotline and the contact information for DSHA’s foreclosure prevention programs.
7. Any other information that the Superior Court may require.
(4) If the borrower(s) may be eligible to apply for assistance through any proprietary loss mitigation program offered by the potential plaintiff or under any federal loss mitigation program in which the potential plaintiff participates, including, but not limited to, the Home Affordable Modification Program, the Second Lien Modification Program, the Home Affordable Unemployment Program, and the Home Affordable Foreclosure Alternatives Program, the potential plaintiff shall include a list of the potentially applicable loss mitigation programs, instructions for how to initiate a completed application for each such program, and a telephone number to call to confirm receipt of an application.
(5) The potential plaintiff (or the servicer sending notice on their behalf) shall include with the notice of intent to foreclose an accounting of the mortgage obligation covering the 12-month period prior to the date of the alleged default. The accounting must include, at a minimum, a history of all payments made during the 12-month period prior to the date of the alleged default and the potential plaintiff’s allocation of those payments to principal, interest, attorneys’ fees, other applicable fees, and the allocation of such payments to the payment installments required by the mortgage. The accounting must also include all of the following:
a. The due date for the mortgage.
b. Any other information as the potential plaintiff may be relying upon as the basis for the claim of default.
c. A certification by the potential plaintiff (or the servicer sending notice on their behalf) that the information contained in the accounting is true and accurate to the best of its knowledge as of the date provided and that the information provided has been relied upon as the basis for the claim of default. Where a servicer provides the certification instead of the potential plaintiff, the servicer shall also identify itself as such and recite in such certification its authority to act on behalf of the potential plaintiff.
(b) As necessary to reflect changes in law, procedure, or loss mitigation options, the Superior Court may prescribe additional or alternate requirements for the form of a notice of intent to foreclose as described under paragraph (a)(3)b. of this section.
(c) DSHA shall make available upon request the list of approved HUD-certified housing counselors and the contact information for each as required under paragraph (a)(3)b.5. of this section.
Del. Code tit. 10, § 5062C Residential Mortgage Foreclosure Mediation Program.
(a) An Automatic Residential Mortgage Foreclosure Mediation Program is established.
(b) This section shall apply to mortgage foreclosure actions under § 5061 of this title with respect to owner-occupied 1- to 4-family primary residential properties, unless the mortgage is held by the seller of the subject property who does not hold more than 5 such mortgages.
(c) (1) As required pursuant to § 5062D(b)(3) of this title, a notice of foreclosure mediation shall accompany the complaint filed in a mortgage foreclosure action subject to this section, which notice shall notify the defendant of the Automatic Residential Mortgage Foreclosure Mediation Program. A copy of such notice shall also accompany the posted and mailed Notice to Lienholders and Tenants required by the Superior Court Civil Rules.
(2) The notice of foreclosure mediation shall:
a. Contain the following heading, in English and in Spanish, in at least 30-point boldface type, at the beginning of the notice:
NOTICE REQUIRED BY DELAWARE LAW
YOUR LENDER HAS FILED A FORECLOSURE ACTION AGAINST YOUR PROPERTY. YOU ARE ELIGIBLE TO PARTICIPATE IN MEDIATION. CALL THE DELAWARE ATTORNEY GENERAL’S FORECLOSURE HOTLINE AT 1-800-220-5424 NOW OR FIND A HOUSING COUNSELOR ON THE INCLUDED LIST TO START THE MEDIATION PROCESS.;
b. Contain the following statement, in English and in Spanish, in at least 14-point boldface type, immediately following the heading:
Your lender has filed a foreclosure action against your property. You are eligible for mediation with your lender. A mediation conference will be scheduled for you. Please look out for this mediation scheduling notice in the mail. Your lender will not be able to seek judgment against your property until the day after the date for which your mediation conference is scheduled.In order to effectively participate in mediation, you must meet with a HUD-approved housing counselor and certify to the court your intent to participate in mediation within 30 days of today. You are encouraged to do this immediately; your chances of saving your home may be better the sooner you meet with a HUD-approved housing counselor. Please call the Delaware Attorney General’s Foreclosure Hotline at 1-800-320-5424 or contact a HUD-approved housing counselor. A list of HUD-approved housing counseling agencies is also provided in this notice. A housing counselor may be able to assist you with the mediation process and with applying for loss mitigation programs and emergency assistance programs. You also must work with your HUD-approved housing counselor to prepare a proposal for your lender in advance of your mediation conference. A Certificate of Participation form is attached to this notice. If you do not certify your intent to participate in mediation, you may still attend your scheduled mediation conference and meet with a representative of your lender. However, your mediation is less likely to be successful and your lender may choose to seek judgment against your property immediately after mediation.You must appear in person at your mediation conference. If you are unable to attend the mediation conference on the scheduled date, you may request that your mediation conference be rescheduled for good cause. You must make this request promptly or your request may be denied.;
c. Contain a list of housing counseling agencies approved by the United States Department of Housing and Urban Development who may be available to provide assistance with the mediation process, along with the contact information for each listed agency;
d. Be accompanied by a Certificate of Participation form, which shall include the following information:
1. The address of the subject property;
2. The following language:
I am the borrower: YES NO
I occupy this property as my primary residence: YES NO
I want to keep living in this house or otherwise negotiate a resolution to this foreclosure that will not result in sheriff’s sale: YES NO
If you checked “NO” for any of the above statements, your mediation conference will be canceled.
3. A certification substantially in the following form:
“I represent that the information herein is true, and certify that as required by the Automatic Residential Mortgage Foreclosure Mediation Program, I have met with the housing counselor identified below and a proposal will be submitted on my behalf to Plaintiff’s attorney at least 14 days before the date of the Mediation Conference.”; and
4. The name and address of the HUD-approved housing counselor;
5. Such other information as the Superior Court shall prescribe.
e. If a date for mediation has already been scheduled pursuant to paragraph (d)(2) of this section, notify the defendant that the mediation conference is scheduled for that date and attach the mediation scheduling notice; in such event, the form of notice required by this paragraph (c)(2) shall be adjusted to reflect that a mediation conference has already been scheduled.
(3) The Superior Court may also require that the notice of foreclosure mediation be accompanied by such other flyers, forms, and checklists as it deems appropriate.
(4) The Delaware State Housing Authority shall make available upon request the list of approved housing counseling agencies and the contact information for each listed agency required under paragraph (c)(2)c. of this section.
(d) (1) The Superior Court or its delegatee shall schedule a mediation conference and issue a mediation scheduling notice to the plaintiff, the defendant, and all other necessary parties to the action as set forth in § 5061 of this title. The mediation conference must be scheduled for a date that is not less than 45 days from the date the notice of foreclosure mediation was served on the defendant and not more than 75 days from such date. The mediation scheduling notice may be in such form as the Superior Court or its delegatee shall provide. The mediation scheduling notice must inform the parties of the date, time, and place of the mediation conference, the contact information for the mediator if 1 has been assigned, and that all necessary parties, other than the plaintiff and the defendant, must file an appearance in order to be provided with further mediation notices.
(2) [Repealed.]
(3) The Superior Court or its delegatee may, in its discretion and either on its own initiative or in response to a request from a party or the mediator, for good cause shown, reschedule a mediation conference, except that no initial mediation conference may be scheduled sooner than 45 days from the date the notice of foreclosure mediation was served on the defendant without the written consent of the defendant and no initial mediation conference may be scheduled later than 75 days from the date the notice of foreclosure mediation was served on the defendant without the written consent of both the plaintiff and the defendant. If the Superior Court or its delegatee reschedules a mediation conference, the previously scheduled conference shall be canceled and the Superior Court or its delegatee will issue a new mediation scheduling notice to the plaintiff, defendant and all appearing parties. The new mediation scheduling notice shall state that the previously scheduled conference was canceled and shall inform the parties of the date, time, and place of the rescheduled mediation conference and the contact information for the mediator if one has been assigned to act as the mediator at the rescheduled mediation conference.
(4) After a Certificate of Participation has been filed identifying the borrower’s HUD-approved housing counselor, the housing counselor shall be provided with copies of all subsequent mediation scheduling notices and other communications to be provided to the borrower as part of the mediation process.
(e) (1) A defendant shall meet with a HUD-approved housing counselor and file a Certificate of Participation no more than 30 days from the date the notice of foreclosure mediation was served on the defendant. The Certificate of Participation shall be filed with the Superior Court or its delegatee and the defendant shall send copies to the mediator and to the plaintiff or, if the plaintiff is represented by counsel, to the mediator and to the plaintiff’s counsel, who will promptly forward the Certificate of Participation on to the plaintiff. If a defendant has checked “NO” with respect to any of the statements required to be included in the Certificate of Participation under paragraph (c)(2)d.2. of this section, above, the mediation conference will be canceled, but this shall not prevent the defendant from requesting that the mediation conference be reinstated at a later date prior to the entry of judgment.
(2) The failure of a defendant to file a Certificate of Participation will not excuse the plaintiff from attending the mediation conference and engaging in mediation in good faith, but the mediator may take the defendant’s failure into consideration when making recommendations.
(3) Upon receipt of a duly completed Certificate of Participation from the defendant, the plaintiff shall owe a mediation fee to the Superior Court or its delegatee in the amount set by the Superior Court pursuant to subsection (q) of this section. Notwithstanding the preceding sentence, if the mediation conference has been cancelled as a result of the defendant checking “NO” on the Certificate of Participation under paragraph (e)(1) of this section above, no mediation fee will be required. The mediation fee required, whether under this section or paragraph (i)(8) of this section below, shall be due and must be paid by plaintiff within 30 days after the eFiling of a completed Certificate of Participation, and shall be in addition to any other filing fees required by law. The Superior Court or its delegatee may in its discretion reschedule any scheduled mediation conference where the mediation fee is overdue pursuant to this paragraph until such time as the mediation fee has been paid.
(f) At least 14 days prior to the date of the mediation conference, the defendant shall provide a completed financial proposal worksheet to the plaintiff, to the mediator, and to such other entities as the Court may require. The Superior Court or its delegatee may prescribe the form of such financial proposal worksheet and any accompanying materials that must be provided by the defendant. The failure of a defendant to provide a complete financial proposal worksheet to the plaintiff will not excuse the plaintiff from attending the mediation conference and engaging in mediation in good faith, but the mediator may take such failure into consideration when making recommendations and may inform the defendant that the failure to provide a complete financial proposal worksheet and accompanying materials, if required, may affect the plaintiff’s ability to enter into a loss mitigation agreement or other resolution of the foreclosure.
(g) At least 7 days prior to the date of the mediation conference or such other date as agreed to by the mediator, the plaintiff shall provide the defendant and its housing counselor, if known, a checklist of documents that the plaintiff requires that the defendant bring to the mediation conference, including whether updated versions of existing documents need to be provided. Each party shall also make itself available at least 3 days prior to the date of the mediation conference to discuss the list of documents. The Superior Court or its delegatee may prescribe a form of checklist to be used under this paragraph. If the plaintiff requests at the mediation conference additional documents from the defendant that were not included on the checklist, the mediator may take any failure of the plaintiff to provide a complete checklist into consideration when making recommendations. If the defendant fails to bring the documents required by the plaintiff to the mediation conference and such documents were requested timely under this subsection, the mediator may take into consideration the defendant’s failure to provide the documents when making recommendations and may inform the defendant that such failure may affect the plaintiff’s ability to enter into a loss mitigation agreement or other resolution of the foreclosure.
(h) The Superior Court or its delegatee may set forth procedures for the provision of information and statements by the parties in mediation, including the use of preliminary position statements. However, the failure of a party to provide a preliminary position statement will not excuse any party from attending the mediation conference and engaging in mediation in good faith, but such failure may be taken into consideration by the mediator in assessing whether the party failing to provide the position statement is engaging in mediation in good faith.
(i) A mediation conference will be held on the day stated in the mediation scheduling notice, and shall be conducted in accordance with the following:
(1) A mediator will oversee the mediation conference and provide guidance as appropriate. However, if multiple mediation conferences are occurring in the same location simultaneously, the mediator may determine that the mediator’s presence is not required for the entirety of the mediation session. In this event, the mediator will inform the parties that they may engage in party-led mediation and that they should seek out the mediator when questions arise and when the mediation conference is complete. The mediation shall be held in a location where fax machines and internet access is available, in order to facilitate the transmission of documents between parties and their counsel.
(2) The plaintiff and the defendant shall appear in person at each mediation conference and must have authority to agree to a proposed settlement, except that if the plaintiff is represented by counsel, the plaintiff’s counsel may appear in lieu of the plaintiff to represent the plaintiff’s interests at the mediation conference, provided plaintiff’s counsel has the authority to agree to a proposed settlement and a representative of the plaintiff who has decision making and settlement authority is available during the mediation conference by telephone. The defendant may be accompanied by a housing counselor and may have legal representation.
(3) At the mediation conference, the parties shall address, among other things, loss mitigation programs offered by the plaintiff for which the defendant could be eligible, along with other potential resolutions that may allow the defendant to continue to own the property or otherwise avoid a foreclosure judgment or sheriff’s sale, including without limitation the following options where applicable: bringing the mortgage loan current; paying off the mortgage; a repayment plan to bring the loan current over time; agreeing to vacate in the near future in exchange for not contesting the matter and a monetary payment; offering the lender a deed in lieu of foreclosure; filing bankruptcy proceedings; paying the mortgage default over 60 months; and requesting a loan modification.
(4) The individual appearing at the mediation conference on behalf of the plaintiff will be responsible for receipt of all information requested from defendant and will be responsible for communicating that information to the plaintiff.
(5) The individual appearing at each mediation conference on behalf of the plaintiff shall bring to the mediation conference an updated itemization of all fees and costs, including any other charges and attorneys’ fees requested, that must be paid as of the date of the mediation in order to reinstate the loan secured by the property subject to the foreclosure action and an current itemization of all overdue amounts causing that loan to be in default.
(6) At a minimum, the mediator will advise the defendant that:
a. The mediation does not suspend the defendant’s obligation to respond to the foreclosure complaint; and
b. Entry of judgment in the foreclosure action may cause the defendant to lose the residential mortgage property.
(7) Absent mutual agreement of the parties, the mediator will have no authority to bind the parties to a resolution, except that the mediator may recommend to the Superior Court that the foreclosure action be dismissed due to the plaintiff’s failure to appear for 2 successive mediation conferences. In no event shall any determination issued by a mediator under this program form the basis of an appeal of any foreclosure judgment.
(8) The parties to a foreclosure action may agree in a mediation conference to schedule an additional mediation conference, which fact shall be recorded in the mediation record at the end of the present mediation conference. If the plaintiff has not yet been required to pay a mediation fee under paragraph (e)(3) of this section because the defendant did not file a completed Certificate of Participation in a timely manner, upon the scheduling of the first additional mediation conference after the initial mediation conference, the plaintiff shall be required to pay a mediation fee to the Superior Court or its delegatee in the amount set by the Superior Court pursuant to paragraph (q) of this section. The mediation fee required under this paragraph must be paid by the plaintiff within 30 days of the eFiling of a completed Certificate of Participation, and shall be in addition to any other filing fees required by law. The mediation fee required under this paragraph must be paid by the plaintiff before the date for which the first additional mediation conference has been scheduled. The Superior Court or its delegatee may in its discretion reschedule any subsequently scheduled mediation conference where the mediation fee is overdue until such time as the mediation fee has been paid.
(9) At the conclusion of a mediation conference, the mediator shall sign a mediation record that shall also be cosigned by all parties present at the mediation conference and filed with the Superior Court. The mediation record shall be on such form as the Superior Court or its delegatee shall provide, shall allow the mediator to make recommendations, and shall state:
a. That the mediation process is complete due to the defendant’s failure to appear and that the foreclosure action may continue; or
b. That the defendant has failed to appear and an additional mediation conference is being scheduled for the next available mediation day at the plaintiff’s request and that no judgment may be entered in the foreclosure action until the day after such date; or
c. That an additional mediation conference is being scheduled for the next available mediation day due to the plaintiff’s failure to appear and that no judgment may be entered in the foreclosure action until the day after such date; or
d. That the mediation process was unsuccessful because the parties failed to come to agreement and that the foreclosure action may continue; or
e. That the parties have agreed to an additional mediation conference scheduled for a date specified and that no judgment may be entered in the foreclosure action until the day after such date; or
f. That the parties have reached a mutually agreeable resolution, that the plaintiff agrees that no entry of default judgment will be sought pending the execution of documents memorializing the agreement of the parties, and that the plaintiff will seek to dismiss the foreclosure action upon such execution (or, in the case of a trial mortgage modification, upon the conversion of the trial mortgage modification to a permanent mortgage modification) or take such other actions as may be authorized by the Superior Court; or
g. That the case is not suitable for mediation because:
1. There was improper service of the complaint or of the notices required under this section or under § 5062B of this title, and a new mediation conference will be scheduled after proper service has been made, and no judgment may be entered in the foreclosure action until the day after such date of such new mediation conference; or
2. A bankruptcy petition has been filed, mediation is not permitted to continue in accordance with paragraph (i)(12) of this section, and upon termination of the automatic stay, plaintiff shall request that a mediation conference be scheduled and no judgment may be entered in the foreclosure action until the day after such date of such new mediation conference; or
3. The subject property is not an owner-occupied 1- to 4-family primary residence and that the foreclosure action may continue; or
4. Such other reasons as the mediator shall state; or
h. That the mediator is recommending that the foreclosure action be dismissed due to the plaintiff’s failure to appear for 2 successive mediation conferences; or
i. Such other resolutions as may be agreed to by the parties.
(10) If no mediation record is signed by all parties present at the mediation conference, the mediator shall file a mediation record with the Superior Court stating that the mediation process was unsuccessful or such other recommendations as the mediator deems appropriate.
(11) The Superior Court or its delegatee may arrange a program to allow for volunteer attorneys to provide legal representation to homeowners at mediation conferences.
(12) Where a bankruptcy petition has been filed, mediation shall not be permitted to continue unless either:
a. The automatic stay has been lifted or modified with respect to the defendant’s mortgage obligation to the plaintiff; or
b. Mediation is permitted to proceed pursuant to an order or directive of a bankruptcy court. Where the mediation process has previously been cancelled as the result of the filing of a bankruptcy petition but is subsequently permitted to proceed under this subparagraph, plaintiff shall request that a mediation conference be scheduled and no judgment may be entered in the foreclosure action until the day after such date of such new mediation conference.
(j) If a mediation conference has been scheduled, the parties may cancel the conference by mutual agreement by filing with the Superior Court or its delegatee a mediation cancellation record signed by each party and the mediator. The mediator shall be permitted to sign a mediation cancellation record on behalf of a party if the mediator discusses the terms of the mediation cancellation record with such party and receives authority from such party to sign on its behalf. Such authority may be granted verbally or in writing. The mediation cancellation record shall be on such form as the Superior Court or its delegatee shall provide, shall allow the mediator to make recommendations, shall state that the parties have agreed that the scheduled mediation conference is not necessary, and shall state any other resolutions as may be agreed to by the parties.
(k) A plaintiff shall not be entitled to attorneys’ fees for time spent in a mediation conference if the Court finds that the plaintiff has failed to comply with subsection (i) of this section, or if the plaintiff has requested that the mediation conference be rescheduled due to plaintiff’s lack of preparation, or if the plaintiff has requested additional documents that were not included on the checklist provided pursuant to subsection (g) of this section, unless in each case the Court finds reasonable cause for such failure. The mediator shall note any such fact in the mediator’s recommendations on the mediation record.
( l ) The mediator may be an employee of the Superior Court, an employee of the Consumer Protection Unit of the Department of Justice, an employee of a nonprofit legal services entity organized in Delaware, or an independent mediator who may be compensated through the funds collected through the Automatic Residential Mortgage Foreclosure Mediation Program. The Superior Court or its delegatee shall determine the qualifications and training required of mediators and shall keep a list of mediators available to participate in the Automatic Residential Mortgage Foreclosure Mediation Program. Mediators will be assigned at the discretion of the Superior Court or its delegatee.
(m) (1) If the parties have reached a mutually agreeable resolution through the mediation process, the terms of the agreement will be memorialized in writing at the conclusion of the mediation conference or, in the case of a canceled mediation conference, promptly upon signing the mediation cancellation record. Promptly thereafter, the parties shall deliver to each other fully executed documents.
(2) Promptly upon receipt of documents executed by the defendant that reflect the agreement of the parties or, in the case of a trial mortgage modification, promptly upon the conversion of the trial mortgage modification to a permanent mortgage modification:
a. If no answer or motion for summary judgment has been filed by the defendant in the foreclosure action, plaintiff shall file a notice of dismissal with the Superior Court; or
b. If the defendant has filed an answer or motion for summary judgment in the foreclosure, plaintiff shall seek to obtain a stipulation of dismissal signed by all parties and file the stipulation with the Superior Court and, if such stipulation cannot be obtained, move for an order of the Superior Court dismissing the foreclosure action.
(3) If the documents fail to reflect a party’s understanding of the agreement reached between the parties or if a party fails to execute the documents or if the terms of a trial modification are not satisfied, either party may request that an additional mediation conference be scheduled.
(4) With respect to foreclosure actions subject to this section that have reached a mutually agreeable resolution through the mediation process or otherwise and recorded such fact in the mediation record at the conclusion of a mediation conference or in a mediation cancellation record, notwithstanding any provisions of the Delaware Code to the contrary, no judgment may be entered unless an additional mediation conference has been scheduled pursuant to paragraph (m)(3) of this section, and the date for such additional mediation conference has passed.
(n) Notwithstanding any provisions of the Delaware Code to the contrary, no judgment may be entered in any action subject to this section for which a mediation conference has been scheduled until the day after the date for which such mediation conference has been scheduled.
(o) If seeking a default judgment in an action subject to this section, the plaintiff or plaintiff’s counsel must have provided proper service of the notices required under subsection (c) of this section and under § 5062B(a)(3)a. of this title.
(p) None of the plaintiff’s or defendant’s rights in the foreclosure action shall be waived by participation in the Automatic Residential Mortgage Foreclosure Mediation Program.
(q) The Automatic Residential Mortgage Foreclosure Mediation Program shall be funded with the mediation fees collected pursuant to paragraphs (e)(3) and (i)(8) of this section. The Superior Court shall set the amount of the mediation fee in an amount to approximate and reasonably reflect the costs necessary to defray the expenses in whole or in part of the Automatic Residential Mortgage Foreclosure Mediation Program. The Superior Court or its delegatee shall collect the mediation fees and disburse funds from the collection of such fees to pay mediators, administrative expenses and other operating costs of the program. Any funds remaining from the collection of mediation fees in excess of the Automatic Residential Mortgage Foreclosure Mediation Program’s direct operating costs in the immediately preceding quarter may be distributed to reimburse any Delaware-based HUD-approved housing counseling agencies or nonprofit legal services entity organized in Delaware that have provided assistance in the Automatic Residential Mortgage Foreclosure Mediation Program for a portion of their costs of participating in the program.
(r) The Superior Court may, by rule, administrative directive, or otherwise, make all necessary rules respecting the Automatic Residential Mortgage Foreclosure Mediation Program. For example, the Superior Court may allow for the use of Delaware nonprofit legal service providers in addition to the use of HUD-approved housing counselors wherever the use of HUD-approved housing counselors is required or permitted under this section. Nothing in this legislation shall impair the authority of the Superior Court to institute procedures to manage its caseload.
(s) As necessary to remain consistent with the purpose of the Automatic Residential Mortgage Foreclosure Mediation Program and related state and federal foreclosure prevention programs, the Superior Court may by rule adjust the mechanics of the Automatic Residential Mortgage Foreclosure Mediation Program set forth in this section.
(t) The Superior Court or its delegatee shall collect and compile statistics on the effectiveness of the Automatic Residential Mortgage Foreclosure Mediation Program, which shall be made available to the public on a periodic basis. The entity responsible for the compilation of statistics shall be provided with copies of all Certificates of Participation, all mediation records, and all mediation cancellation records. Parties shall provide the entity responsible for the compilation of statistics with such nonprivileged information as may be necessary to evaluate or report on the effectiveness of the Automatic Residential Mortgage Foreclosure Mediation Program.
(u) This section applies to mortgage foreclosure actions commenced on or after January 19, 2012.
(v) [Repealed.]
Del. Code tit. 10, § 5062D Complaints and answers.
(a) A complaint to foreclose a mortgage in an action subject to this chapter shall contain a statement as to whether the mortgage foreclosure action is subject to the Automatic Residential Mortgage Foreclosure Mediation Program and, where it is not subject to the Automatic Residential Mortgage Foreclosure Mediation Program, a statement of the reason why it is not subject to that program.
(b) In an action subject to the Automatic Residential Mortgage Foreclosure Mediation Program, in addition to any other requirements set forth in the Delaware Code or by the Superior Court, a complaint to foreclose the mortgage shall be accompanied by:
(1) If applicable, an affidavit stating that the notice of intent to foreclose was sent to the borrower(s) in accordance with § 5062B(a)(3) of this title and the date of said notice;
(2) A statement of the debt remaining due and payable supported by an affidavit of the plaintiff or the mortgage holder or the agent or attorney of the plaintiff or mortgage holder; and
(3) The notice of foreclosure mediation described under § 5062C(c)(2) of this title, which notice shall be attached to the front of the copy of the complaint served on the defendant.
(c) Notwithstanding any provisions of the Delaware Code to the contrary, no answer to a complaint in a mortgage foreclosure action subject to the Automatic Residential Mortgage Foreclosure Mediation Program shall be deemed untimely if it is filed on or before the date of any scheduled mediation conference.
(d) This section applies to mortgage foreclosure actions commenced on or after January 19, 2012.
(e) [Repealed.]
Del. Code tit. 10, § 5063 Judgment upon default.
If the defendant fails to appear at the return day of the scire facias, definitive judgment therein, as well as all other judgments to be given upon such scire facias, shall be entered that the plaintiff have execution by levari facias directed to the proper officer.
Del. Code tit. 10, § 5064 Award of levari facias when county line divides land.
The writ of levari facias awarded upon any judgment for the sale of any such tract, as mentioned in § 5062 of this title, shall be directed to the sheriff of the county wherein the judgment was given. The sheriff shall proceed in the same manner as is prescribed in other cases of the sale of lands upon such execution process, and may on the writ sell the tract of land in the whole, and altogether at one and the same time, and make return thereof to the court out of which the writ is issued. Upon confirmation of such sale by the court the sheriff shall make a deed to the purchaser conveying the whole as fully as if the same had been wholly situated in his or her bailiwick. Any deed so made shall be recorded in each of the counties in which the land is situated. Notice of any such sale shall be set up in at least 5 of the most public places in each of the hundreds in which the land or any part thereof is located.
Del. Code tit. 10, § 5065 Procedure after award of levari facias.
Under a levari facias, awarded as described in this subchapter, the mortgaged premises shall be taken in execution, and after notice given in the same manner as in other cases of the sale of lands upon execution process, shall be exposed to public sale, and upon such sale and confirmation thereof, shall be conveyed by deed to the purchaser; or if there be no sale for want of bidders, return shall be made accordingly, and thereupon a liberari facias may issue and be executed in the same manner, and with like effect, as provided in other cases of the sale of lands upon execution process.
Del. Code tit. 10, § 5066 Title of purchaser.
The person to whom any lands and tenements shall be sold, or delivered, under § 5065 of this title, and such person’s heirs and assigns, shall hold the same, with their appurtenances, for such estate, or estates, as they were sold, or delivered for, discharged from all equity or redemption, and all other incumbrances made and suffered by the mortgagor, the mortgagor’s heirs, or assigns; and such sale shall be available in law. Such sale, or delivery, shall not create any further term, or estate, to the vendees, mortgagees, or creditors, than the lands and tenements were mortgaged for.
Del. Code tit. 10, § 5067 Disposition of surplus from sale proceeds.
Any surplus of the proceeds of sale of mortgaged premises, after satisfying the principal debt in the mortgage, with interest and costs, shall be rendered to the owner of the premises at the time of sale. Until the surplus is so rendered, the officer making the sale shall not be discharged upon the record of the court to which the sale is returnable.
Del. Code tit. 10, § 5071 Issuance for execution on judgments and recognizances; parties.
A writ of scire facias may be sued upon a judgment in a personal, or mixed action, as well as upon a judgment in a real action, as also upon all recognizances, to obtain execution of such judgment, or recognizances. Such writ may be sued by and against the parties to the judgment, or recognizance, and also by and against any other persons entitled, or liable, to the execution thereof, whether as executors, administrators, heirs, terre tenants, or otherwise.
Del. Code tit. 10, § 5072 Execution on judgments in civil actions.
(a) An execution may be issued upon a judgment in a civil action at any time within 5 years from the time when such judgment was entered or rendered, or from the time when such judgment became due; or to collect any instalment of a judgment within 5 years from the time when such instalment fell due.
This section shall only apply to cases when no execution has been previously issued to collect such judgment or instalment, and to cases where 1 or more have been issued for such purpose, and it appears by the return of the officer that such judgment or instalment, as the case may be, has not been paid or satisfied. As to all other cases the law shall remain unaffected.
(b) No judgment shall be deemed to be paid or satisfied, in whole or in part, by a levy on execution process, unless it appears otherwise than by the fact of such levy that such payment or satisfaction has been made.
Del. Code tit. 10, § 5073 Execution on judgments of the Court of Common Pleas or justices of the peace.
An execution may be issued upon a judgment recovered before the Court of Common Pleas or a justice of the peace, and of which a transcript has been filed and entered in the Superior Court, or on a judgment upon an appeal from the Court of Common Pleas or a justice of the peace, at any time within 5 years from entering the transcript, or giving the judgment on appeal, without scire facias, unless it is necessary to make a party defendant. A party plaintiff may be made by suggesting the facts and stating the proper party on the record, without scire facias, and the proceeding shall be in the name of the proper party so stated.
Del. Code tit. 10, § 5081 Time of binding of goods and chattels by execution; duration of lien.
An execution shall not bind goods and chattels until it is delivered to the sheriff or other proper officer to be executed. An execution shall, from the time it is so delivered, bind all the goods and chattels of the defendant within the bailiwick, which shall be actually levied upon within 60 days thereafter. No levy upon goods and chattels, made by virtue of execution process, shall be of any force or effect as against a subsequent execution levied upon the same goods and chattels for a longer period than 3 years from the making of such first mentioned levy.
Del. Code tit. 10, § 5082 Priority of liens.
If several executions against the same defendant are delivered on the same day, the first delivered shall have priority. If several executions against the same defendant are delivered together, they shall have priority according to their respective numbers.
Del. Code tit. 10, § 5083 Endorsing of date on writ.
The prothonotary, issuing an execution, shall endorse thereon the date of its issue.
Del. Code tit. 10, § 5084 Duty of sheriff upon receipt of execution.
The sheriff, or other officer, receiving an execution, shall, in a docket, set down the date of receiving it; and when several executions are delivered on the same day, the docket shall show the order in which they are received. Such officer shall also endorse upon an execution, immediately on receiving it, the precise time of its delivery to him or her.
Del. Code tit. 10, § 5085 Applicability to executions by the Court of Common Pleas or justices of the peace.
The provisions of this subchapter shall not apply to executions issued by the Court of Common Pleas or justices of the peace.
Del. Code tit. 10, § 5091 Execution on judgment for penalty.
When an execution is issued upon a judgment for a penalty, the officer issuing it shall endorse thereon the real debt and the time from which interest is to be calculated.
Del. Code tit. 10, § 5092 Death or escape of party arrested or imprisoned.
If a person arrested, or imprisoned, by virtue of an execution, dies in execution, or escape, in either case the arrest, or imprisonment, shall be no satisfaction of the judgment, on which the execution is issued; and the execution shall be held to be in no part executed by such arrest, or imprisonment.
Del. Code tit. 10, § 5093 Liability of officer for escape; action against officer.
If a person arrested, or imprisoned, by virtue of an execution, be suffered to escape, the sheriff, constable, or other officer having the custody of such person at the time of the person’s escape, shall be answerable for the full amount payable according to the execution. The person at whose suit the execution was issued, or for whose use it is endorsed, or such person’s executors, or administrators, shall have a civil action therefor, against such sheriff, constable, or other officer, or such officer’s executors, or administrators. The nonpayment of the amount shall be a breach of the condition of the official recognizance, or obligation, of such sheriff, constable, or officer.
Del. Code tit. 10, § 5094 Restitution on reversal of judgment after sale of real estate.
If, after the sale of real estate upon execution process, the judgment upon which such writ is awarded shall be reversed for error, the real estate, so sold, shall not be restored, nor any part thereof, nor shall the sale thereof be avoided; but in such case, restitution only of the money for which such lands may be sold, shall be made.
Del. Code tit. 10, § 5095 Mistaken identity of judgment debtor.
Where a judgment is entered upon the wrong person by any court by reason of mistaken identity, that person shall at any time after the entry be permitted to petition the court that entered the judgment to challenge the validity of the judgment entered against him or her. If the court determines that a judgment against such person was erroneously entered, the court shall issue an order correcting the error in whatever manner it deems appropriate to correct the mistake, including the release of any liens against real estate and personal property.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title10/c049/sc01/index.htmlFetched: 10/4/2026