A Guide to 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). 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 Default
If 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. It may be possible to avoid foreclosure at this stage if you immediately call the Workout Department of your lender and offer to pay the full amount of back payments and current payments, or discuss some other type of workout agreement.
Notice of Acceleration
Many mortgages contain a paragraph that covers situations when you are in default or late on your payments. This paragraph is known as an "acceleration" clause because it allows the lender to accelerate, or push forward, the date that full payment on your mortgage is due. Some mortgage contracts require the lender to give "notice of acceleration" to the borrower. The "notice of acceleration," sometimes called a "demand letter," normally states that the whole balance is due and payable immediately. If you fail to pay the entire amount due, the lender has the right to foreclose on the mortgage. However, the lender must comply with the requirements of the loan documents and other relevant laws. So, it is important to seek advice from an attorney as soon as you receive a "notice of acceleration."
Writ of Scire Facias
In Delaware, a lawsuit is required to foreclose on your mortgage except for certain types of mortgages issued by the government. The foreclosure process takes an average of 5 to 6 months from filing the lawsuit until the confirmation of the foreclosure sale. Don't be surprised if none of the papers in a foreclosure lawsuit actually use the word "foreclosure." Instead, the lawsuit papers will probably use the Latin words "scire facias sur mortgage" or "sci fa sur mortgage."
If the foreclosure is in Superior Court, the Sheriff will serve you with a "writ of scire facias" (sci. fa.) at your residence. The sci. fa. has many papers including a Summons, Complaint, a certified copy of the mortgage, an Affidavit of Demand, a Fair Debt Collection Practices Act disclosure statement and a "Notice to Lien Holders and Tenants of Filing of Action." Within 10 days of filing the foreclosure lawsuit, the lender must send by certified mail a copy of the complaint and a "Notice to Lien Holders and Tenants of Filing of Action" to you and anyone with an interest in your property, such as your tenants and other lenders. The lender will also post this notice on the main door of your house.
You must answer the complaint within 20 days after you are served with the complaint. For this reason, it is important to see an attorney as soon as possible, because, if you fail to answer within 20 days, or your answer does not meet other legal requirements, default judgment will be entered against you. Unless the default judgment is vacated or reopened, you will automatically lose your home.
In Delaware, there will usually be a notation on the complaint that plaintiff demands that defendant answer the allegations of the complaint by affidavit pursuant to 10 del. C. § 3901. This means that your answer to the complaint must include an affidavit of defense. Your affidavit of defense must give detailed and specific answers to all the allegations in the affidavit of demand, otherwise, the court may grant the lender's request for a default judgment and you would automatically lose the foreclosure lawsuit. Possible defenses to a foreclosure lawsuit are satisfaction or payment of the mortgage, or defenses that seek to avoid the mortgage, such as, assignment, discharge, duress, forfeiture, fraud, illegality, ratification, unjust enrichment and waiver.
Notice of Sale
Confirmation of Sale
Right to Cure a Default
After Foreclosure Sale
New Castle County Mortgage Foreclosure Mediations
67 Reads Way
New Castle, DE 19720