Mortgages on Real Estate

Del. Code tit. 25, ch. 21
in effect

Del. Code tit. 25, § 2101 Form of mortgage; effect [For application of section, see 80 Del. Laws, c. 280, § 2].

(a) The following shall be a sufficient form of mortgage for the purpose of creating a lien on real estate within this State: WHEREAS, A. D. of , hereinafter called party of the first part, in and by the party of the first part’s certain obligation duly executed, bearing even date herewith, stands bound unto C. D. of in the sum of Dollars, payable together with interest thereon, at the rate of per centum per annum, payable , from the date thereof, together with costs and counsel fees, under the terms and conditions therein expressed. NOW THIS MORTGAGE WITNESSETH, that the said party of the first part for and in consideration of the aforesaid debt of Dollars, and for the better securing the payment of the same, with interest, as aforesaid and costs and counsel fees, doth hereby grant and convey unto the said party of the second part, ALL DESCRIPTION OF PREMISES RECITAL And it is hereby expressly provided and agreed that if any action, suit, matter or proceeding be brought for the enforcement of this mortgage or the accompanying bond, and if the plaintiff or lien holder in said action, suit or proceeding shall recover judgment in any sum, such plaintiff or lien holder shall also recover as reasonable counsel fees ________________________________ per centum of the amount decreed for principal and interest, which said counsel fees shall be entered, allowed and paid as a part of the decree or judgment in said action, suit or proceeding. Provided Always, Nevertheless, that if the said party of the first part, the said party of the first part’s Heirs, Executors, Administrators or Assigns, shall and do well and truly pay, or cause to be paid, unto the said party of the second part, the said party of the second part’s Executors, Administrators or Assigns, the aforesaid debt of ________________________________ dollars on the day and time hereinbefore mentioned and appointed for the payment thereof with interest, then and from henceforth, as well this present Indenture, and the estate hereby granted, as the said recited Obligation, shall cease, determine and become void and of no effect, anything hereinbefore contained to the contrary thereof, in anywise notwithstanding. In Witness Whereof, the said party of the first part has hereunto set the party of the first part’s hand and seal this ________________________________ day of ________________________________________________________________ A.D. ________________________________________________________________ Sealed and delivered in the presence of ________________________________________________________________________________________________________________ (Seal) (b) A mortgage in the above form duly executed, acknowledged and recorded shall operate and be effective as a valid mortgage lien upon the entire interest of the mortgagors in the premises therein described, and irrespective of whether the mortgage is under seal, it may be foreclosed in the Superior Court pursuant to Chapter 49 of Title 10. (c) Nothing herein contained shall invalidate a mortgage not made in the above form, but a mortgage made in the form heretofore in common use within this State shall be valid and effectual.

Del. Code tit. 25, § 2102 Minor’s bond, obligation or mortgage.

The signature, seal and acknowledgment of a person under the age of 21 years and of the age of at least 18 years to any bond, other obligation and/or mortgage shall be valid and legally effective for all intents and purposes in law or in equity, and shall bind that person, that person’s heirs, executors and administrators.

Del. Code tit. 25, § 2103 Effect of mortgage executed by trustee for mentally ill spouse.

Any mortgage executed and acknowledged by a trustee for a mentally ill married man or woman, appointed pursuant to the provisions of § 104 or § 105 of this title, shall be as valid and effectual to bar and divest the mentally ill spouse’s estate as tenant by the curtesy or dower interest in case the mentally ill person survives such mentally ill person’s spouse, as if such mentally ill spouse had been legally capable, and had in fact executed and acknowledged such mortgage; and any such mortgage, or the record thereof, shall be competent evidence in all courts of this State.

Del. Code tit. 25, § 2104 Purchase money mortgage of married woman; liability of husband.

Where a married woman becomes a purchaser of real estate, she may secure the purchase money, or part of it, by recognizance, bond, mortgage or otherwise as single women may, and her husband need not be a party nor consent to such act of giving security. In such case any such recognizance, bond, mortgage or other obligation or lien shall not be subject to any right or estate in curtesy of the husband of such married woman. In case of her entering into recognizance or giving bond or mortgage, or making other contract for the payment of the purchase money of such real estate, her husband shall not be liable, unless he is a party thereto.

Del. Code tit. 25, § 2105 Purchase money mortgage by married woman.

A married woman may secure the purchase money or part of it for real estate purchased by her, and give a bond, as provided by § 2104 of this title.

Del. Code tit. 25, § 2106 Priority of mortgage from time of recording.

A mortgage, or a conveyance in the nature of a mortgage, of lands or tenements shall have priority according to the time of recording it in the proper office, without respect to the time of its being sealed and delivered, and shall be a lien from the time of recording it and not before.

Del. Code tit. 25, § 2107 Priority of mortgages recorded at same time.

If 2 or more mortgages, or conveyances in the nature of mortgages, of the same premises are lodged in the same office at the same time, they shall stand in priority in relation to each other, according to their respective dates.

Del. Code tit. 25, § 2108 Priority of purchase money mortgages.

(a) For purposes of this section, “purchase money mortgage” means 1 or more of the following: (1) A mortgage taken by the seller of the mortgaged property to secure the payment of all or part of the purchase price. (2) A mortgage taken by a mortgagee other than the seller of the mortgaged property to secure the repayment of money actually advanced by the mortgagee to or on behalf of a mortgagor at the time the mortgagor acquires title to the property and used by the mortgagor at that time to pay all or part of the purchase price. (b) A mortgage that states that the mortgage is intended to constitute a purchase money mortgage creates a rebuttable presumption that the mortgage is a purchase money mortgage under this section. (c) A lien of a purchase money mortgage on lands or tenements, or any part thereof, has preference to and priority over a judgment against the mortgagor or any other lien created or suffered by the mortgagor, including a lien filed or entitled to be filed under Chapter 27 of this title, although the judgment or lien is of a date before the purchase money mortgage, if both of the following occur: (1) The lands or tenements are sold and 1 or more purchase money mortgages on the lands or tenements, or any part thereof, are made by the purchaser to the seller or mortgagee for securing the purchase money, or any part thereof. (2) The mortgages are recorded within 10 days after the deed conveying the land or tenements from the seller to the purchaser is recorded. (d) As between 2 or more purchase money mortgages on the same land, the mortgages have priority and preference according to the times that the mortgages are severally recorded in the proper office. Two or more mortgages, recorded at the same time, do not have preference or priority as between themselves.

Del. Code tit. 25, § 2109 Assignment of mortgages.

(a) An assignment of a mortgage or any sealed instrument attested by 1 creditable witness shall be valid and effectual to convey all the right and interests of the assignor. (b) All assignments of mortgages or any sealed instruments heretofore made in the presence of 1 witness and all satisfactions made by assignees in such assignments are made good and valid.

Del. Code tit. 25, § 2110 Effect of release of part of mortgaged premises; acknowledgment and recording.

The release by the mortgagee or that mortgagee’s assigns, executed at the instance of the mortgagor, that mortgagor’s heirs or assigns, of any part of the mortgaged premises shall not be deemed or taken to operate as a release or discharge of any other part of the lands included in such mortgage, but such other lands shall be and remain subject to the lien of the mortgage, and execution may be had thereof in the same manner as if the mortgage had originally included only such lands. Every such release shall be under hand and seal, and shall be acknowledged in the same manner as provided by law for the acknowledgment of deeds, and shall become effective upon the date of filing in the office of the recorder of deeds in and for the county in which such lands so released are situated.

Del. Code tit. 25, § 2111 Satisfaction of mortgages; penalty; enforcement in Superior Court.

(a) Whenever the debt or duty secured by a mortgage or conveyance in the nature of a mortgage is satisfied or performed, the legal holder of such mortgage or conveyance at the time the satisfaction or performance is completed shall, within 60 days after satisfaction or performance is completed (including the payment of any required satisfaction fees), cause an entry of such satisfaction or performance to be made upon the record by the procedure enumerated in this subsection. The fee for entering such satisfaction or performance upon the record shall be paid by the debtor or obligor unless the mortgage or conveyance provides otherwise. (1) A satisfaction of a mortgage or conveyance shall be made by recordation of either a satisfaction piece, if the instrument is presented in substantially the same form as set out in subsection (b) of this section and acknowledged in the same manner as provided by law for the acknowledgment of deeds, or an attorney’s affidavit pursuant to § 2120 of this title. The satisfaction piece shall be presented to the recorder, and the recorder shall accept such document for recordation providing such document conforms to the requirements set out in subsection (b) of this section. (2) If a full or partial release of the mortgage or conveyance is recorded, the recorder of deeds shall place a reference to a book and page number in the indices as to where the release is recorded. (b) The following shall be a sufficient form of satisfaction piece as authorized by paragraph (a)(1) of this section: To: Recorder of Deeds This instrument prepared by: ________________________________ County Name: ________________ State of Delaware Address: ________________ Tax Parcel Identification Number: ________________ Property Address: ________________________________. You are hereby requested and authorized to enter satisfaction of, and cancel of record, the mortgage executed by ________________________________________________, mortgagor, to ________________________________________________, mortgagee, dated ________________, ________, and recorded ________________, ________, in your office in Mortgage Record ________________, at Page ________________. [and if applicable, Assigned by ________________________________________ to ________________________________________ and recorded in Assignment Record ____________, Page ____________. ] INDIVIDUAL SIGNATURE AND ACKNOWLEDGEMENT IN WITNESS WHEREOF, Mortgagee(s), [Assignee(s)] has(ve) hereunto set its/their hand(s) and seal(s) this ________ day of ________________, ________. ________________________________WITNESS ________________________________MORTGAGEE (Seal) State of ________________________ County of ____________________ This instrument was acknowledged before me on ____________________ (date), by ____________________[name(s) of person(s)] as ____________________ [type of authority, e.g., officer, trustee, etc.] of ____________________ [name of party on behalf of whom instrument was executed]. ________________________________________________________________ (Signature of notarial officer) (Seal, if any) ________________________________________________________________ (Title and rank) My commission expires ________________ SIGNATURE AND ACKNOWLEDGEMENT IN A REPRESENTATIVE CAPACITY IN WITNESS WHEREOF, Mortgagee [Assignee] has hereunto set its hand and seal this ________ day of ________________, ________. MORTGAGEE [ASSIGNEE] NAME____________________ ________________________________ BY: ________________________________(SEAL) ________________________________WITNESS ________________________________ATTEST: ________________________________(SEAL) State of ________________________________ County of ________________________________ This Instrument was acknowledged before me on ________________ (date), by ________________________________ [name(s) of person(s)] as ________________________________ [type of authority, e.g., officer, trustee, etc.] of ________________________________ [name of party on behalf of whom instrument was executed]. ________________________________________________________________ (Signature of notarial officer) (Seal, if any) ________________________________________________________________ (Title and rank) My commission expires ________________ (c) Each recorder shall either create and maintain a separate index and record of the recording of documents which are authorized to be recorded by this chapter including powers of attorney to satisfy mortgages, satisfaction pieces, and partial and complete releases of mortgages and security interests, or index the same in the index used for recorded mortgages. If the recorder creates a separate index, it may be called the “release and satisfaction index”, which shall reference the mortgagor, mortgagee, record book, and page of the mortgage being released or satisfied and the address or lot number, if any, of the property being released or satisfied. The recorder may also maintain a separate record of said instruments and shall not be required to maintain other than a micrographic or electronic record of said instruments. (d) If the legal holder of a mortgage fails to satisfy the mortgage in accordance with the requirements of subsection (a) of this section, the mortgagor, or that mortgager’s agent, shall be entitled to submit a notice to the legal holder of the mortgage demanding that the mortgage be satisfied. The notice shall be sent by certified or registered mail, return receipt requested. The notice shall be sent to the legal holder of the mortgage at the address designated in the payoff statement, or to such other person and/or address as the legal holder may designate in the payoff statement. If: (1) No payoff statement is received by the mortgagor or that mortgager’s agent; or (2) No address is provided in the payoff statement and the person issuing the notice has received no address to which to send such notices; or (3) Payments are made electronically and no payment address is given by the legal holder; or (4) Payment in satisfaction has been made at maturity or otherwise when due and without a payoff statement having been issued, then the address for notice shall be deemed to be the last address used by the legal holder in written communications with the mortgagor, and the notice shall be sent to the attention of “Mortgage Satisfaction Department.” A copy of such notice shall also be sent to the registered agent (if any) in the State of Delaware of the legal holder. (e) Whoever, being the holder of a mortgage, wilfully fails to satisfy a mortgage upon the record as required by subsection (a) of this section shall be fined not more than $1,000 for each such failure together with assessed costs, for each failure, not to exceed $1,000. (f) The recorder of deeds or the mortgage commissioner of the county in which any mortgage is recorded that has been satisfied or performed shall file a complaint with the Attorney General’s office in said county against any mortgage holder who has not satisfied of record said mortgage within 60 days of its satisfaction or performance. (g) The Superior Court shall have jurisdiction of offenses under this section.

Del. Code tit. 25, § 2112 Effect of satisfaction of mortgage by Regional Manager or Treasurer of Home Owners’ Loan Corporation.

When any mortgage has been satisfied pursuant to a power of attorney executed by the Regional Manager or Regional Treasurer in the name of the Home Owners’ Loan Corporation, in accordance with the provisions contained in § 108(a) of this title, the mortgage or conveyance shall be extinguished.

Del. Code tit. 25, § 2113 Effect of entry of satisfaction.

An entry of satisfaction or performance made in accordance with this chapter shall extinguish the mortgage or conveyance, and the effect shall be the same as if such mortgage or conveyance had not been made.

Del. Code tit. 25, § 2114 Damages for nonentry of satisfaction.

If any person commits a default under § 2111 of this title, such person, that person’s executors or administrators, or if it is a corporation, such corporation, in addition to the other penalties provided for shall be liable to the party by or on whose behalf the satisfaction or performance has been made or completed, in damages to be recovered by a civil action. The damages shall not be less than $10 nor more than $500, except when special damage to a larger amount is alleged in the complaint and proved.

Del. Code tit. 25, § 2115 Procedure to compel entry of satisfaction of mortgage or judgment.

(a) In all cases where mortgages or judgments are liens on real estate in this State and the same have been paid and the mortgagee or obligee or their executors, administrators or assigns refuses or neglects to enter satisfaction of such mortgage or judgment on the record thereof in the office where the same is recorded or entered, forthwith after the payment thereof, the mortgagor or obligor or their heirs or assigns may, upon sworn petition to the Superior Court of the county in which such mortgage or judgment is recorded or entered, setting forth the facts, obtain from such Court a rule on the mortgagee or obligee or their executors, administrators or assigns, returnable at such time as the Court may direct, requiring such mortgagee or obligee or their executors, administrators or assigns to appear on the day fixed by the Court and show cause, if they have any, why such mortgage or judgment shall not be marked satisfied on the record thereof. Such rule shall be served as provided by law for service of writs of scire facias. In case the mortgagee or obligee or their executors, administrators or assigns reside out of the State and cannot be served, or in case the mortgagee or obligee is a corporation which has been dissolved for more than 3 years prior to the filing of the petition, and for whom no trustee or receiver has been appointed, the rule shall be continued and a copy thereof shall be published by the sheriff in a newspaper of the county once each week for 4 successive weeks, and upon proof of such advertisement by affidavit of the sheriff made at the time to which such rule was continued, shall be deemed and considered sufficient service of such rule. (b) Upon the return of the rule, if the Court is satisfied from the evidence produced that such mortgage or judgment, together with all interest and costs due thereon, has been satisfied and paid, the rule shall be made absolute, and the Court shall order and decree that the mortgage or judgment is paid and satisfied, and shall order and direct the recorder or the prothonotary, in whose office such mortgage or judgment is entered, to enter on the record thereof full and complete satisfaction thereof.

Del. Code tit. 25, § 2116 Reconveyance upon satisfaction or performance.

When a debt or duty, secured by a mortgage, or conveyance in the nature of a mortgage is satisfied or performed, the person or corporation in whom the title under such mortgage or conveyance is, shall upon the reasonable request and at the proper cost of the mortgagor, that mortgagor’s heirs or assigns, execute and acknowledge a sufficient reconveyance of the premises contained in such mortgage, or conveyance in the nature of a mortgage.

Del. Code tit. 25, § 2117 Entry of partial payments on record; penalty for refusal; exceptions.

Repealed by 72 Del. Laws, c. 29, § 1, effective May 12, 1999.

Del. Code tit. 25, § 2118 Priority of mortgages and other instruments securing future advances and certain other advances; modifications of mortgages and other instruments.

(a) Any mortgage or other instrument given for the purpose of creating a lien on real property, when so expressed therein or when so expressed in a separate instrument or other agreement specifically referred to therein and incorporated by reference (which instrument or other agreement need not be recorded), may secure not only existing indebtedness, but also future advances, whether such advances are obligatory or to be made at the option of the lender, or otherwise, and whether made before or after default or maturity or other similar events, to the same extent as if such future advances were made on the date of the execution of such mortgage or other such instrument, although there may be no advance made at the time of the execution of such mortgage or other instrument and although there may be no indebtedness outstanding at the time any advance is made. Such lien, as to third persons with or without actual knowledge thereof, shall be valid as to all such indebtedness and future advances from the time the mortgage or other such instrument is recorded or filed in the proper office as provided by law. The total amount of the indebtedness having the priority established by such lien may decrease or increase from time to time, but the total unpaid principal balance at any 1 time shall not exceed the maximum principal amount of the obligation which must be specified in such mortgage or other such recorded instrument. Any mortgage or other instrument to which this subsection applies, and all such existing indebtedness, future advances and interest thereon, shall have preference to and priority over any lien, other than those liens the priority of which is governed by § 2901 of this title, which is subsequent in time to the time such mortgage or other such instrument is recorded or filed in the proper office as provided by law. (b) In addition to the stated indebtedness, a mortgage or other instrument given for the purpose of creating a lien on real property may secure disbursements and other advances thereunder for the payment of taxes, assessments, maintenance charges, insurance premiums or costs relating to the property encumbered by such mortgage or other instrument, for the discharge of liens having priority over the lien of such mortgage or other instrument, for the curing of waste of the property that is the subject of the lien, for the indemnification obligations regarding environmental liabilities of the property that is the subject of the lien, and for the payment of service charges and expenses incurred by reason of default, and including late charges, attorneys’ fees and court costs, if such mortgage or other such instrument states that it shall secure any such advances and disbursements, together with all interest thereon. Any mortgage or other instrument to which this subsection applies, and all such stated indebtedness, disbursements and other advances expressed therein and interest thereon, shall have preference to and priority over any lien, other than those liens the priority of which is governed by § 2901 of this title, which is subsequent in time to the time such mortgage or other such instrument is recorded or filed in the proper office as provided by law. (c) Nothing in this section is intended to limit or restrict the obligations, indebtedness, liabilities, covenants, disbursements or advances that may be secured by any mortgage or other instrument given for the purpose of creating a lien on real property. (d) The preference and priority of the lien of any mortgage or other such instrument given for the purpose of creating a lien on real property and all matters secured thereby shall extend to any and all future modifications thereof, or of the obligations secured by the mortgage or such other instrument, that have been recorded or filed in the proper office as provided by law, except for such modification as expressly increases the maximum principal amount that is specified in such mortgage or other such instrument or separate instrument or agreement referred to in subsection (a) of this section. (e) Nothing herein shall be construed to limit any agreement between the lender and the borrower or other parties to any such mortgage or other such instrument given for the purpose of creating a lien on real property as to the time period for the repayment of such existing indebtedness, future advances, interest, service charges and disbursements as aforesaid, as to other obligations, advances or disbursements that are secured thereby or as to any other terms and conditions of such mortgages or other such instrument.

Del. Code tit. 25, § 2119 Insurance requirements for mortgages.

(a) The mortgagee or obligee of any mortgage or other instrument given for the purpose of creating a lien on real property shall accept as evidence of insurance a written binder issued by any authorized insurer or its agent if the binder includes or is accompanied by: (1) The name and address of the insured borrower; (2) The name and address of the lender as loss payee; (3) A description of the insured real property; (4) A provision that the binder may not be cancelled within the term of the binder unless the lender and the insured borrower receive written notice of the cancellation at least 10 days prior to the cancellation; (5) Except in the case of a renewal of a policy subsequent to the closing of the loan, a paid receipt for the full amount of the applicable premium; and (6) The amount of insurance coverage. A mortgagee or obligee may refuse to honor a binder in cases where the lender receives notice of the cancellation of the binder by the insurer; or, at the expiration of 30 days of the date the binder was given, the insurer has failed to issue the policy of insurance. (b) The mortgagee or obligee of any mortgage or other instrument given for the purpose of creating a lien on real property shall not require hazard insurance in an amount which exceeds the greater of: (1) The value placed on the improvements by the insurer; or (2) The value placed on the improvements as determined by the lender’s appraisal of the real property. (c) In the event that subsection (a) or (b) of this section is wilfully violated, the original mortgagee or obligee listed upon the original mortgage or other instrument shall be obligated to pay to the mortgagor or obligor: (1) Reasonable attorneys’ fees; and (2) The greater of the actual damages directly resulting from the violation or 5% of the face amount of the mortgage. (d) A violation of this section shall not affect the validity of the mortgage or other instrument which creates the lien securing the loan. (e) For purposes of this section, a “mortgage or other instrument given for the purpose of creating a lien on real property” shall mean a consumer purpose mortgage or other consumer purpose instrument given for the purpose of creating a lien. For purposes of this section, “consumer purpose mortgage” and “consumer purpose instrument given for the purpose of creating a lien” shall mean mortgages or other instruments given for the purpose of creating a lien encumbering 1-to-4 family residential properties, and shall not include mortgages or other instruments given for the purpose of creating a lien encumbering other multi-unit residential properties, such as apartment buildings, or encumbering office, commercial or industrial properties.

Del. Code tit. 25, § 2120 Authorization to satisfy mortgage and other liens paid off by a licensed Delaware attorney.

(a) An attorney authorized to practice law in the State who has paid in full or caused to be paid in full a debt owed by any debtor to any creditor holding a mortgage securing such debt and encumbering a property owned by the debtor, or a retired Delaware attorney who, while an active member of the Bar of the Delaware Supreme Court, paid in full or caused to be paid in full a debt owed by any debtor to any creditor holding a mortgage securing such debt and encumbering a property owned by the debtor, after review and approval of the retired attorneys’ relevant records by an active member of the Bar of the Delaware Supreme Court, may, at any time after the expiration of 60 days after such debt has been paid in full, and after giving a minimum of 15 days’ notice to said creditor, record with the recorder of deeds in the county in which such property is located, an affidavit and request which shall contain the following information: (1) The mortgage record, volume and page of the mortgage proposed to be marked fully paid and satisfied; (2) The full name and address of the original mortgagee; (3) The name of the original mortgagor or mortgagors; (4) The original date of the mortgage; (5) The original amount of the mortgage; (6) A satisfactory description of the property which is encumbered by the mortgage, including, but not limited to: a. The property address and/or lot number; b. Subdivision name, if any; and c. The tax parcel number assigned to such property; (7) The name of each entity to whom the mortgage was subsequently assigned, together with the dates and recording information of said assignments; (8) The full name and address of the last mortgagee in interest which appears of record on the mortgage; (9) The full name and address of the creditor or mortgage loan servicer who was fully paid; (10) If the fully paid creditor or mortgage loan servicer is other than the last mortgagee of record on the date of full payment, a statement by the attorney or retired attorney whose signature appears on the affidavit that: a. The attorney or retired attorney was provided with a written payoff statement by the creditor or mortgage loan servicer; b. The attorney or retired attorney relied upon the written payoff statement; and c. The attorney or retired attorney made payment or caused payment to be made of the outstanding debt to the creditor or mortgage loan servicer; (11) If the mortgage secured a home equity or other consumer open line of credit, affiant attorney or retired attorney, where requested in writing by the mortgagee, shall, also in writing, instruct said mortgagee to close, effective upon the date and time of receipt of the mortgage “payoff figure,” the open line of credit and that no additional funds are to be advanced under the open line of credit; (12) The date on which the debt was fully paid; (13) That at least 60 days have elapsed since the debt was fully paid; (14) That the affiant attorney or retired attorney has fully paid or has caused to be fully paid the debt to the creditor or to the mortgage loan servicer and retains evidence of that payment; (15) That after a minimum of 15 days’ notice, by certified mail, return receipts requested, the mortgagee of record at the time of the full payment described in the affidavit, has failed to accomplish satisfaction of the mortgage in the mortgage record, volume and page in which such mortgage appears in the public records; (16) That the attorney or retired attorney requests the recorder of deeds in the county in which such property is located to indicate in the property records of that county that such mortgage is fully paid and satisfied; (17) That the attorney or retired attorney whose signature appears on said affidavit has personally reviewed all of the information and each of the facts contained in said affidavit and request; and (18) That the information contained in said affidavit and request is true and correct to the best of the attorney’s or retired attorney’s knowledge. (b) An attorney authorized to practice law in the State who has paid in partial satisfaction or caused to be paid in partial satisfaction a debt owed by any debtor to any creditor holding a mortgage securing such debt and encumbering a property owned by the debtor, or a retired Delaware attorney who while an active member of the Bar of the Delaware Supreme Court paid in partial satisfaction or caused to be paid in partial satisfaction a debt owed by any debtor to any creditor holding a mortgage securing such debt and encumbering a property owned by the debtor, after review and approval of the retired attorney’s relevant records by an active member of the Bar of the Delaware Supreme Court, may, at any time after the expiration of 60 days after such debt has been partially paid, and after giving a minimum of 15 days’ notice to said creditor, record with the recorder of deeds in the county in which such property is located, an affidavit and request which shall contain the following information: (1) The mortgage record, volume and page of the mortgage proposed to be marked partially released; (2) The full name and address of the original mortgagee; (3) The name of the original mortgagor or mortgagors; (4) The original date of the mortgage; (5) The original amount of the mortgage; (6) A satisfactory description of the property which is to be released from the mortgage, including, but not limited to: a. The property address and/or lot number; b. Subdivision name, if any; and c. The tax parcel number assigned to such property; (7) The name of each entity to whom the mortgage was subsequently assigned, together with the dates and recording information of said assignments; (8) The full name and address of the last mortgagee in interest which appears of record on the mortgage; (9) The full name and address of the creditor or mortgage loan servicer who was partially paid; (10) If the partially paid creditor or mortgage loan servicer is other than the last mortgagee of record on the date of partial payment, a statement by the attorney or retired attorney whose signature appears on the affidavit that: a. The attorney or retired attorney was provided with a written partial release statement by the creditor or mortgage loan servicer; b. The attorney or retired attorney relied upon the written partial release statement; and c. The attorney or retired attorney made partial payment or caused partial payment to be made of the outstanding debt to the creditor or mortgage loan servicer; (11) The date on which the debt was partially paid; (12) That at least 60 days have elapsed since the debt was partially paid; (13) That the affiant attorney or retired attorney has partially paid or has caused to be partially paid the debt to the creditor or to the mortgage loan servicer and retains evidence of that payment; (14) That after a minimum of 15 days’ notice, by certified mail, return receipts requested, the mortgagee of record at the time of the partial payment described in the affidavit, has failed to accomplish partial release of the mortgage in the mortgage record, volume and page in which such mortgage appears in the public records; (15) That the attorney or retired attorney requests the recorder of deeds in the county in which such property is located to indicate in the property records of that county that such mortgage is partially released; (16) That the attorney or retired attorney whose signature appears on said affidavit has personally reviewed all of the information and each of the facts contained in said affidavit and request; and (17) That the information contained in said affidavit and request is true and correct to the best of the attorney’s or retired attorney’s knowledge. (c) The recorder of deeds, or a duly appointed deputy, in the county in which the debtor’s property encumbered by such mortgage is located shall be authorized to cause said mortgage to be satisfied or the relevant portion of the pledged property to be released from said mortgage, as the case may be, upon receipt of an affidavit and request by the attorney or retired attorney fully or partially paying such debt. (d) The recorder of deed’s office may charge a fee for accepting and recording the affidavit and satisfying or partially releasing the mortgage. (e) This section shall, in no way, limit the authority of the recorder of deeds to otherwise satisfy or partially release mortgages as provided by law. (f) The following or substantially consistent revisions by the recorder of deeds shall be a sufficient form of mortgage satisfaction affidavit pursuant to this section: AFFIDAVIT CERTIFYING MORTGAGE PAYOFF AND REQUEST FOR MORTGAGE SATISFACTION PURSUANT TO 25 DEL. C. § 2120 STATE OF DELAWARE ) ) SS. NEW CASTLE COUNTY ) I, the undersigned, an attorney authorized to practice law in the State of Delaware, or an attorney who has retired from the practice of law in the State of Delaware and after review and approval of my relevant records by an active member of the Delaware Bar, after having first been duly sworn, depose and say as follows: (1) The mortgage proposed to be marked fully paid and satisfied appears in Mortgage Record , Volume , Page ; (2) The full name and address of the original mortgagee is ; (3) The name of the original mortgagor(s) is (are) ; (4) The original date of the mortgage is ; (5) The original amount of the mortgage is ; (6) A satisfactory description of the property which is encumbered by the mortgage, including, but not limited to the following is: a. The property address and/or lot number is ; b. Subdivision name, if any, ; and c. The county tax parcel number assigned to such property is ; (7) After the original mortgage was recorded, the mortgage was subsequently assigned of record to each of the following entities on the date and at the book and page there noted: to on at Book/Volume and Page No. to on at Book/Volume and Page No. to on at Book/Volume and Page No. to on at Book/Volume and Page No. (8) The full name and address of the last mortgagee in interest on the mortgage is ; (9) The full name and address of the creditor or mortgage loan servicer who was fully paid is ; (10) , who is the creditor or mortgage loan servicer that was fully paid is other than , the last mortgagee in interest which appeared of record on the date of said payment. I did, however, obtain a written payoff statement from the creditor or mortgage loan servicer on account of said mortgage, and, in accordance with and in reliance on the payoff statement, I made payment or caused payment to be made of the outstanding debt to the creditor or mortgage loan servicer; (11) I have, where applicable, instructed the mortgagee, in writing, effective the date and time of receipt of the mortgage “payoff figure”, to close and decline any further advances on the home equity or other consumer open line of credit which was secured by the affected mortgage; (12) The date on which the debt was fully paid is ; (13) At least 4 months have elapsed since the debt was fully paid and the amount of the debt so paid is not in dispute; (14) I fully paid or caused to be fully paid such debt to the creditor or mortgage loan servicer and I retain evidence of that payment; (15) After a minimum of 15 days’ notice by me, by certified mail, return receipt requested, the last mortgagee in interest has failed to take appropriate steps to accomplish satisfaction of the mortgage in the mortgage record, volume and page where such mortgage appears in the public records; (16) I request the Recorder of Deeds in County to indicate in the record of said County that such mortgage is fully paid and satisfied; (17) I have personally reviewed all of the information and each of the facts contained in this affidavit and request; and (18) The information contained in this affidavit and request is true and correct to the best of my knowledge. (g) The following or substantially consistent revisions by the recorder of deeds shall be a sufficient form of mortgage partial release affidavit pursuant to this section: AFFIDAVIT CERTIFYING MORTGAGE PARTIAL PAYOFF AND REQUEST FOR MORTGAGE PARTIAL RELEASE PURSUANT TO 25 DEL. C. § 2120 STATE OF DELAWARE ) NEW CASTLE COUNTY ) ) SS. I, the undersigned, an attorney authorized to practice law in the State of Delaware, or an attorney who has retired from the practice of law in the State of Delaware and after review and approval of my relevant records by an active member of the Delaware Bar, after having first been duly sworn, depose and say as follows: (1) The mortgage proposed to be marked partially paid and partially released appears in Mortgage Record , Volume , Page ; (2) The full name and address of the original mortgagee is ; (3) The name of the original mortgagor(s) is (are) ; (4) The original date of the mortgage is ; (5) The original amount of the mortgage is ; (6) A satisfactory description of the property to be released from the mortgage, including, but not limited to the following is: a. The property address and/or lot number is ; b. Subdivision name, if any, ; and c. The county tax parcel number assigned to such property is ; (7) After the original mortgage was recorded, the mortgage was subsequently assigned of record to each of the following entities on the date and at the book and page there noted: to on at Book/Volume and Page No. to on at Book/Volume and Page No. to on at Book/Volume and Page No. to on at Book/Volume and Page No. (8) The full name and address of the last mortgagee in interest on the mortgage is ; (9) The full name and address of the creditor or mortgage loan servicer who was partially paid is ; (10) , who is the creditor or mortgage loan servicer that was partially paid is other than , the last mortgagee in interest which appeared of record on the date of said payment. I did, however, obtain a written partial release statement from the creditor or mortgage loan servicer on account of said mortgage, and, in accordance with and in reliance on the partial release statement, I made partial payment or caused partial payment to be made of the outstanding debt to the creditor or mortgage loan servicer; (11) The date on which the debt was partially paid is ; (12) At least 4 months have elapsed since the debt was partially paid and the amount of the debt so paid is not in dispute; (13) I partially paid or caused to be partially paid such debt to the creditor or mortgage loan servicer and I retain evidence of that payment; (14) After a minimum of 15 days’ notice by me, by certified mail, return receipt requested, the last mortgagee in interest has failed to take appropriate steps to accomplish partial release of the mortgage in the mortgage record, volume and page where such mortgage appears in the public records; (15) I request the Recorder of Deeds in County to indicate in the record of said County that such mortgage is partially paid and a portion of the pledged property is released; (16) I have personally reviewed all of the information and each of the facts contained in this affidavit and request; and (17) The information contained in this affidavit and request is true and correct to the best of my knowledge. (h) An affidavit given in either of the forms above shall be notarized by a notary public. (i) For purposes of this section, a “retired attorney” or a “retired Delaware attorney” shall mean an inactive, judicial, retired or emeritus member of the Bar of the Delaware Supreme Court as provided in Delaware Supreme Court Rule 69. (j) (1) For purposes of this subsection: a. “Lien” includes a homeowner association or condominium lien, UCC financing statements, judgments, and any other monetary lien recorded with a recorder of deeds office. b. “Lien” does not include a mortgage. (2) If an attorney authorized to practice law in this State satisfies, partially releases, or releases a specific property that is part of a lien recorded with a recorder of deeds office, the attorney may use the procedure under subsection (a) of this section to satisfy a lien or the procedure under subsection (b) of this section to partially satisfy a lien. (3) If an attorney authorized to practice law in this State uses either of the procedures authorized under paragraph (j)(2) of this section, the attorney shall use an affidavit that is substantially similar to the affidavit authorized under subsection (f) of this section, for a satisfaction of a lien, or subsection (g) of this section, for a partial release of a lien or release of a specific property that is part of a lien. The attorney may adjust the affidavit as necessary based on the type of lien satisfied or partially satisfied.

Del. Code tit. 25, § 2121 Instruments transferring, pledging or assigning lessors’ interests in leases or rents arising from real property as security.

(a) Upon recording, in the office of the recorder of deeds in and for the county where the real property lies, of any instrument transferring, pledging or assigning the lessor’s interest in leases (whether in existence or thereafter existing) of or rents (including security deposits) arising from real property as conditional or unconditional security for a debt or duty, the interest of the transferee, pledgee or assignee shall be fully perfected as to the transferor, pledgor or assignor and as to all third parties without the necessity of furnishing further notice to the transferor, pledgor or assignor or any lessee, of obtaining possession of the real property, of impounding the rents or security deposits, of filing a financing statement under the Delaware Uniform Commercial Code, of securing the appointment of a receiver, or of taking any other affirmative action, and such interest shall have priority according to the time of recording the instrument in the proper office, without respect to the time of its being signed and delivered. (b) Except as may be provided in the lease or other agreement by which it is bound, the lessee under any such lease identified in subsection (a) of this section is authorized to pay the transferor, pledgor or assignor, rents and security deposits until the lessee receives written notification that rents due or to become due have been transferred, pledged or assigned and that payment is to be made to the transferee, pledgee or assignee. A notification that does not reasonably identify the rents transferred, pledged or assigned is ineffective. If requested by the lessee, the transferee, pledgee or assignee must furnish reasonable proof that the assignment has been made and is in full force and effect and unless so furnished the lessee may pay the transferor, pledgor or assignor. (c) Whenever the debt or duty secured by an instrument described in this section is satisfied or performed, and to the extent such instrument is not self-terminating, upon such an event, the transferee, pledgee or assignee shall forthwith cause to be recorded in the office in which the instrument is recorded a document pursuant to which it declares that the instrument is terminated. The recording of such document shall extinguish the instrument and the effect shall be the same as if such instrument had not been made. (d) Any recorded instrument transferring, pledging or assigning an interest in leases of or rents arising from real property shall be duly perfected as herein provided, except that nothing herein shall alter, change or modify any perfected order of priority of interests in such leases or rents which exists on the date that this legislation is enacted.

Del. Code tit. 25, § 2122 Procedure to strike an entry of satisfaction or other indication of a mortgage satisfaction.

(a) When entry of satisfaction, recordation of a mortgage satisfaction piece or other indication of a mortgage satisfaction has been made upon the record through inadvertence, error or mistake, any person or party affected by such inadvertence, error or mistake may, upon sworn petition to the Superior Court of the county in which such mortgage was recorded, setting forth the facts, obtain from such Court a rule on the mortgagor or obligor or their heirs, executors, administrators or assigns, returnable at such time as the Court may direct, requiring such mortgagor or obligor or their heirs, executors, administrators or assigns to appear on the day fixed by the Court and show cause, if they have any, why the entry of satisfaction or other indication of a mortgage satisfaction should not be stricken. Such rule shall be served as provided by law for service of writs of scire facias. In case the mortgagor or obligor or their heirs, executors, administrators or assigns reside out of the State and cannot be served, or in case the mortgagor or obligor is a corporation which has been dissolved for more than 3 years prior to the filing of the petition, and for whom no trustee or receiver has been appointed, the rule shall be continued and a copy thereof shall be published by the sheriff in a newspaper of the county once each week for 4 successive weeks, and upon proof of such advertisement by affidavit of the sheriff made at the time to which such rule was continued, shall be deemed and considered sufficient service of such rule. (b) Upon the return of the rule, if the Court is satisfied from the evidence produced that entry of satisfaction or other indication of a mortgage satisfaction had been made upon the record of such mortgage through inadvertence, error or mistake, the rule shall be made absolute, and the Court shall order and decree that the entry of satisfaction or other indication of a mortgage satisfaction of such mortgage shall be stricken as if such satisfaction or other indication of a mortgage satisfaction had not been made. (c) Upon the issuance of an order striking an entry of satisfaction or other indication of a mortgage satisfaction, the party who obtains such order shall forthwith file with the recorder of deeds a certified copy of said order. The recorder shall at once record said order and make a proper note of the same in the indices. The recorder shall collect recording fees upon receipt of the instrument as provided for in § 9607 of Title 9.

Del. Code tit. 25, § 2123 Satisfaction of mortgage after lapse of time.

(a) Any mortgage or deed of trust having the effect of a mortgage (hereinafter “mortgage”) that is unsatisfied upon the public records and remains a lien on any real estate may be satisfied pursuant to the procedures set forth in subsection (b) of this section: (1) After the lapse of 10 years from the date for the maturity of such lien set forth in such mortgage, or in any modification, extension or continuance thereof duly recorded in like manner and place; or (2) In the absence of any fixed or ascertainable maturity date stated in such mortgage or any such modification, extension or continuance thereof, after the lapse of 40 years from the latest of the date of recording the mortgage or of any modification, extension, or continuance thereof (as the case may be). (b) An attorney authorized to practice law in the State of Delaware shall be authorized to satisfy a mortgage that remains a lien pursuant to subsection (a) of this section above, provided the following procedures are followed: (1) Written notice, by certified mail, return receipt requested, must be sent to the last mortgagee of record as defined below requesting that the mortgage be immediately satisfied or that the last mortgagee of record notify the attorney, by certified mail, return receipt requested, within 60 days of the mailing of said notice, that the obligation secured by the mortgage has not been satisfied or performed pursuant to § 2111(a) of this title. The last mortgagee of record shall mean the legal holder of the mortgage and at the address which appears upon the recorded mortgage, or any assignment, modification, extension or continuance thereof, or counsel of record for the legal holder of the mortgage duly recorded in like manner or place, or if such addresses are not ascertainable from the public records, at the last known available or reasonably ascertainable address of the last mortgagee of record or if none, addressed care of the Office of the Delaware Bank Commissioner. (2) If the mortgage remains unsatisfied for an additional period of 60 days after the above notice has been mailed, and during such time the attorney has not received any notification from the last mortgagee of record that the obligation secured by the mortgage has not been satisfied or performed pursuant to § 2111(a) of this title, the attorney may file an affidavit of satisfaction in the form set forth in subsection (c) of this section below. (c) An affidavit of satisfaction permitted under this section shall contain the following information: (1) The mortgage record, volume and page, instrument number or other recording data of the mortgage proposed to be marked fully paid and satisfied; (2) The name of the original mortgagee, as the same appears in the mortgage; (3) The name of the original mortgagor or mortgagors, as the same appears in the mortgage; (4) The original date of the mortgage (if specified therein); (5) The original principal amount of the mortgage (if specified therein); (6) The name of each assignee to whom the mortgage was subsequently assigned of record, together with the dates and recording information of said assignments; (7) The full name and address of the last mortgagee of record; (8) A statement by the attorney that: a. Such attorney has sent the notice required by paragraph (b)(1) of this section; b. Such attorney has not received from the last mortgagee of record notice that the obligation secured by the mortgage has not been satisfied or performed pursuant to § 2111(a) of this title; c. After passage of the period of time specified in paragraph (b)(2) of this section, the mortgage has not been satisfied; and d. The attorney has reason to believe that the mortgage is a consumer purpose mortgage or consumer purpose deed of trust; (9) That the attorney requests the recorder of deeds in the county in which the mortgage is recorded to indicate in the property records of that county that such mortgage is fully paid and satisfied; (10) That the attorney whose signature appears on said affidavit has personally reviewed all of the information and each of the facts contained in said affidavit and request; and (11) That the information contained in said affidavit and request is true and correct to the best of the attorney’s knowledge. (d) The recorder of deeds, or a duly appointed deputy, in the county in which the mortgage is recorded shall be authorized to cause said mortgage to be satisfied upon the receipt of such affidavit and request by the attorney. (e) The recorder of deeds office may charge a fee for accepting and recording the affidavit and satisfying the mortgage. (f) An affidavit filed pursuant to this section does not in itself extinguish any obligation secured by the mortgage that is the subject of the affidavit. An attorney who files an affidavit pursuant to subsection (c) of this section is not liable to any person if the attorney complied with this section and the last mortgagee of record did not respond in a timely manner to the notification pursuant to paragraph (b)(1) of this section. (g) This section shall in no way limit the authority of the recorder of deeds to otherwise satisfy mortgages as provided by law. (h) This section does not supplant any other remedy or process available for the satisfaction or release of mortgages. (i) A mortgagor, grantor, or interested party is entitled to the presumption that a mortgage that is unsatisfied on the public records and remains a lien on real estate has been paid and satisfied if any of the following has occurred: (1) A lapse of 10 years from the date for the maturity of the lien set forth in the mortgage or a modification, extension, or continuance of the mortgage that is duly recorded in like manner and place. (2) In the absence of any fixed or ascertainable maturity date stated in the mortgage or a modification, extension, or continuance of the mortgage, a lapse of 40 years from the latest of the date of recording of the mortgage or of a modification, extension, or continuance of the mortgage. (j) If an action has not been brought to enforce the lien of a mortgage within the time provided under subsection (i) of this section then, notwithstanding any other right or remedy available either at law or equity, the lien created by the mortgage terminates, is no longer enforceable against the property, and is extinguished as a lien against the property. (k) The termination and extinguishment, under subsection (j) of this section, of the lien created by the mortgage does not extinguish an obligation secured by the mortgage. ( l ) This section applies to all mortgages recorded before, on, or after October 14, 2022. (m) Subsection (a) of this section does not limit subsections (i) and (j) of this section.

Del. Code tit. 25, § 2124 Recordation of mortgagee’s change of address.

(a) Any mortgagee or any assignee of a mortgage under § 2109 of this title that changes its notice address from the address stated in any mortgage or assignment of mortgage must, within 60 days of a change in its notice address, file in the recorder of deeds office in the county in which the mortgage or any assignment has been recorded a statement of mortgagee address change. (1) The filing of a statement of mortgagee address change is public notice to all parties interested in such mortgage or assignment of mortgage, or the property upon which it is a lien, of the address where the legal holder of such mortgage or assignment of mortgage must receive any notice. (2) Until such time as a statement of mortgagee address change has been filed, any party having an interest in such mortgage or assignment of mortgage, or the property upon which it is a lien, is fully protected by sending all notices to the legal holder of such mortgage or assignment of mortgage at the notice address provided in the mortgage or the last assignment of record. (3) A mortgagee is not required to file a separate statement of mortgagee address change for each mortgage recorded in the county or to include each mortgage recorded in the county on a statement of mortgagee address change. (4) It is unlawful for a mortgagee to fail to file a statement of mortgagee address change as required under this section. A violation of this paragraph (a)(4) is punishable by a fine of not more than $1,000 and costs of not more than $1,000. (5) The Superior Court has jurisdiction over a violation of paragraph (a)(4) of this section. (b) Each recorder of deeds may promulgate a sample form to be used to file a statement of mortgagee address change. (c) Each recorder of deeds shall create and maintain a separate index for statements of mortgagee address change. The index must be called the “statement of mortgagee address change index” and must reference the mortgagee who has changed its address and include the mortgagee’s notice address as provided in the statement of mortgagee address change. The index does not need to include reference to each mortgage recorded in the county by the mortgagee who filed a statement of mortgagee address change. (d) Each recorder of deeds may charge a fee for accepting and recording a statement of mortgagee address change. The fee must reasonably reflect the costs necessary to defray expenses associated with creating and maintaining the statement of mortgagee address change index.
Source: DE Code (Official Site)URL: https://delcode.delaware.gov/title25/c021/index.htmlFetched: 10/4/2026

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