Foreclosure in Delaware
In Delaware, a mortgage is a lien against the property granted by the home owner to the lender to secure an obligation to pay the note. The note is a written promise to pay a debt (the loan).
In this brochure, when we use the word mortgage, it will generally mean both the mortgage and the note. When you fail to make required payments on your mortgage, your mortgage will be in default. Once you are in default, the lender can start foreclosure proceedings, and you could lose your house if you have no defenses.
You will probably receive notices from the lender and/or the court related to foreclosure. Some of the most common types of notice in Delaware are "notice of default," "notice of acceleration," "writ of scire facias," and "notice of sale". If you receive any notices related to foreclosure, seek help from an attorney immediately.
Notice of DefaultIf you fall behind in the payments on your mortgage, the lender will usually send you a "notice of default" or "notice of delinquency" telling you that your payments are behind. A notice of default is often required by the mortgage. However, Delaware law does not require notice of default unless the mortgage requires such notice.The notice of default warns you of a serious problem, so you must take action immediately.
Writ of Scire FaciasIn Delaware, a lawsuit is required to foreclose on your mortgage except for certain types of mortgages issued by the government.
Right to cure a defaultYou can cure a default by paying the lender missed payments, plus fees and costs before acceleration of the mortgage. After acceleration of the mortgage, you may cure the default by paying the entire balance of all the principle, interest and costs due on the mortgage, but only if you do so before the Sheriff sells the property at the Sheriff's Sale. However, partial payments made after acceleration of the entire debt, evidenced by the initiation of foreclosure proceedings, do not cure the default.
EvictionIf you are a tenant living in a property sold in a foreclosure sale, then the creditor or buyer must file a claim either for ejectment or possession to evict you. After a claim is filed, it can take as little as a couple of days, or as long as, a month or two before the tenant is forcecd to leave the rental property.After the foreclosure sale, you should prepare to move out. Although if you are unable to afford alternative housing, you could stay in the property until you get evicted. A lender can evict you by requesting a writ of possession from the Superior Court.
Delaware homeowners and lenders will be required to go into mediation when foreclosure complaints are filed under a bill signed into law Wednesday by Gov. Jack Markell.
It was one of a package of bills aimed at helping homeowners through the growing foreclosure crisis.
Under the new mediation law, foreclosure will be halted until a meeting takes place, though it include an opt-out provision. Lenders will pay a fee to finance the process, and the law will expire in two years.
Contributed by: Federal Trade Commission
Last Reviewed: 07/16/2009
Delaware State Housing Authority - Delaware Foreclosure Help -The Do's & Don'ts.
Contributed by: Delaware State Housing Authority
Last Reviewed: 07/13/2009