 Delaware Loan Modification Guidelines
When you develop a definite plan of action with well-time, well-informed
steps, you can stop the foreclosure process and save your home. We have
outlined the foreclose process for the state of Delaware.
Judicial Foreclosure Available: Yes
Non-judicial Foreclosure Available: No
In Delaware, if a borrower defaults, the lender can take several remedies
simultaneously. The lender could sue to collect on the note and foreclose
the mortgage. A lender could also sue on the note first, and pursue foreclosure
later. However, the lender will only be permitted to recover the amount
unpaid on the loan. Usually, the speediest process is scire facias, a procedure
which contemplates a sale of the mortgaged property for a sum that will
pay the balance on the loan, or a transfer of title to the lender, after
the property has been exposed at a public sale, in exchange for a credit
against some part of the balance on the loan, or up to the full balance
owed on the loan.
Scire Facias
Scire Facias is a proceeding in which the borrower must show cause that
there should be no foreclosure. Usually, upon breach of the terms of the
mortgage, such as through non-payment of the note or breach of the mortgage
conditions, the lender may seek a writ of scire facias from the Superior
Court in the county in which the mortgaged property is located. The initial
filing, which must be sworn to, consists of a Praecipe and Complaint. The
Praecipe calls upon the Prothonotary to issue the writ of scire facias.
The term scire facias is the name both of the writ and the proceeding it
instigates. The writ is issued upon the default of the borrower in making
payments or observing mortgage conditions, and requires the borrower to
show cause why the mortgage should not be foreclosed and the property sold.
Once the writ is issued, it will be served upon the borrower by the sheriff.
If the sheriff goes out and tries to hand the borrower the writ without
success after repeated effort, which is called return non est., then a
default liberari judgment may be obtained. (At least two separately issued
consecutive writs must be returned non est.) If the borrower is served
with the writ, it will command the borrower to appear before the court
to show cause why the mortgage premises out not to be seized and sold to
pay off the mortgage, with interest, or else pay off the lender's losses
due to the borrower's non-performance. If the borrower fails to appear
within 20 days after being served with the writ of scire facias, then the
lender will obtain a default liberari judgment. Otherwise the borrower
must prove why the foreclosure should not take place. Unless the court
is satisfied with the explanation, the court will authorize the property
to be seized to pay off the mortgage.
Preliminary Notices
Posting
Notices of the sale must be posted publicly and on the property in foreclosure
at least ten days before the sale date.
Delivery
A copy of the notice must be run two weeks before the sale.
Sale Procedures
Person Conducting the Sale
The sale itself will be conducted by the sheriff.
Place of Sale
The place of sale must be either at the court house steps or at the site
of the property in foreclosure.
Post-Sale Matters
The sale must be confirmed by the court. Once confirmed, no redemption
is possible. A deed will be executed by the Sheriff to convey title to
the purchaser. Deficiency judgments are possible, but only by a suit on
the note, in addition to the scire facias.
Unusual Procedures
Since scire facias is purely a remedy at common law, equity law does not
play a role in the proceedings. Although mortgages can be foreclosed by
an equity suit in the Delaware Court of Chancery, this method is seldom
used. Strict common law has some unusual results, however. In particular,
the borrower's counterclaims will not be heard at the hearing on the scire
facias, because they were not part of the original mortgage. Such counterclaims
must be pursued in a separate proceeding rather than as part of the scire
facias proceeding. However, all record owners acquiring title subject to
the mortgage (terre-tenants) must be joined in the scire facias proceeding.
Also persons who have equitable or legal interests of record, such as one
pursuant to a judicial sale, must be joined. These changes were made in
1986 to correct a constitutional problem with the old procedure.
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