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Learning Center | Delaware Foreclosure Laws

Questions
How are mortgage liens treated in Delaware?
How are Delaware mortgages foreclosed?
What are the legal instruments that establish a Delaware mortgage?
How long does it take to foreclose a property in Delaware?
Is there a right of redemption in Delaware?
Are deficiency judgments permitted in Delaware?
What statutes govern Delaware foreclosures?

Answers

How are mortgage liens treated in Delaware?

Delaware is known as alien theory state where the property acts as security for the underlying loan. The document that places the lien on the property is called amortgage.

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How are Delaware mortgages foreclosed?

In Delaware, the lenders go to court in what is known as ajudicial foreclosure proceeding where the court must issue a final judgment of foreclosure. The most common procedure is known asscire facias. The property is then sold as part of a publicly noticed sale. The court with jurisdiction over a foreclosure is known as theSuperior Court. A complaint is filed in the court along with what is known alis pendens. Alis pendens is a recorded document that provides public notice that the property is being foreclosed upon. The defendant has twenty (20) days to respond. Thescire facias method is unique in that the defendant has to present a defense that the subject mortgage upon which the action is based is not in default as opposed to lender having to prove it is in default. Notice must be given fourteen (14) days in advance of the foreclosure sale.

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What are the legal instruments that establish a Delaware mortgage?

The documents are known as themortgage,note, and in a commercial transaction, asecurity agreement. Sometimes the mortgage document is combined with the security agreement. Amortgage is filed to evidence the underlying debt and terms of repayment, which is set forth in thenote.

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How long does it take to foreclose a property in Delaware?

Depending on the court schedule, it usually takes approximately 175-200 days to effectuate an uncontested foreclosure. This process may be delayed if the borrower contests the action, seeks delays and adjournments of hearings, or files forbankruptcy.

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Is there a right of redemption in Delaware?

No, Delaware has no post confirmationstatutory right of redemption, which allows a party whose property has been foreclosed to reclaim that property by making payment in full of the sum of the unpaid loan plus costs. Usually there is a confirmation hearing scheduled on thirty (30) days notice after the sale. A borrower can usually redeem during that period but not after.

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Are deficiency judgments permitted in Delaware?

Yes, adeficiency judgment may be obtained when a property in foreclosure is sold at a public sale for less than the loan amount that the underlying mortgage secures. This means that the borrower still owes the lender for the difference between what the property sold for at auction and the amount of the original loan.

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What statutes govern Delaware foreclosures?

The laws that govern Delaware foreclosures are found in Delaware Code : Title 10 (Courts and Judicial Procedure), Part III Procedure, Chapter 49. Executions, Subchapter XI, Scire Facias on Mortgage. To view these statutes on the Web, you can visit:

http://198.187.128.12/Delaware/lpext.dll?f=templates&fn=fs-main.htm&2.0


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