How foreclosure works in Delaware

The notices you will receive in Delaware, in order

1. Notice of default or acceleration letter

   From your servicer after you fall behind, if your mortgage requires it

   A notice of default says you are behind. A notice of acceleration, sometimes called a demand letter, says the whole balance is now due. Call a free housing counselor as soon as either one arrives.

2. Notice of Intent to Foreclose

   Mailed by the lender at least 45 days before it can file

   It is headed "NOTICE REQUIRED BY DELAWARE LAW: TAKE ACTION TO SAVE YOUR HOME FROM FORECLOSURE" in English and Spanish. It lists the amount needed to cure, HUD-certified counselors, the Attorney General's hotline and a 12-month payment history. Check the numbers and call a counselor.

   10 Del. C. § 5062B

3. Writ of scire facias, summons and complaint

   Served on you by the sheriff after the 45 days

   This packet starts the court case. It usually includes the complaint, a certified copy of the mortgage and an Affidavit of Demand. Your deadlines run from the day you are served.

   10 Del. C. §§ 5061, 5062D

4. Notice of Foreclosure Mediation and Certificate of Participation

   Attached to the front of the complaint

   These tell you a mediation conference will be set and what you must do first. Meet a HUD-approved housing counselor and file the Certificate of Participation within 30 days of service.

   10 Del. C. §§ 5062C(c), (e), 5062D(b)

5. Mediation conference notice and mediation record

   Conference set 45 to 75 days after service

   You meet your lender with a mediator. Afterward a Continuing Mediation Record or Final Mediation Record states whether there was an agreement, another conference or no deal.

   10 Del. C. § 5062C

6. Notice of sheriff's sale

   Delivered to you at least 10 days before the sale

   After a judgment, the court issues a writ of levari facias telling the sheriff to sell. The sheriff delivers or leaves the notice at your home, posts it in public places and advertises for 2 weeks in two newspapers. A court rule also requires notice to owners by certified mail at least 7 days before the sale.

   10 Del. C. §§ 4973, 5063, 5065; Del. Super. Ct. Civ. R. 69(g)

7. Confirmation of sale and sheriff's deed

   Usually the month after the sale

   The Superior Court confirms the sale unless there is a valid objection. Then the sheriff gives the buyer a deed, and your right to redeem ends.

   10 Del. C. §§ 5065, 5066

The legal steps in Delaware

1. Missed payments and the notice of intent to foreclose

   Under federal rules your servicer generally cannot start a foreclosure until you are more than 120 days behind. In Delaware, for an owner-occupied home with 1 to 4 units, the lender must also mail you a notice of intent to foreclose by certified and first-class mail and then wait 45 days before filing. The notice must state the amount needed to cure the default and list HUD-certified housing counselors.

   12 C.F.R. § 1024.41(f); 10 Del. C. § 5062B

2. The lender files in Superior Court

   The sheriff serves you with the complaint and a writ of scire facias. A Notice of Foreclosure Mediation and a Certificate of Participation form must be attached to the front of the complaint. Read them the day they arrive, because your deadlines start from the date you are served.

   10 Del. C. §§ 5061, 5062C(c), 5062D(b)

3. Meet a housing counselor and file the Certificate of Participation

   Within 30 days after you are served, meet with a HUD-approved housing counselor and file the Certificate of Participation with the court. Then give the lender and the mediator a completed financial worksheet at least 14 days before the conference. If you skip these steps you can still attend, but the mediation is less likely to work.

   10 Del. C. § 5062C(e), (f)

4. Answer the complaint

   Legal Services Corporation of Delaware says you must answer the complaint within 20 days after you are served or the lender can get a default judgment. In a case that is in the mediation program, the statute says an answer is not late if it is filed on or before the date of a scheduled mediation conference. Talk to a lawyer about your answer, because Delaware answers often must include a sworn affidavit of defense.

   10 Del. C. §§ 5062D(c), 5063

5. Mediation conference

   The court schedules a mediation conference for a date 45 to 75 days after the mediation notice was served on you. You must attend. The lender cannot seek judgment until the day after the scheduled conference.

   10 Del. C. § 5062C(c), (d)

6. Judgment and sheriff's sale

   If there is no agreement and the lender gets a judgment, the court issues a writ that tells the sheriff to sell the home. The sheriff must deliver a notice of the sale to you, or leave it at your home, at least 10 days before the sale, post notices, and advertise in two newspapers for 2 weeks before the sale. A court rule also requires notice by certified mail at least 7 days before the sale.

   10 Del. C. §§ 4973, 5065; Del. Super. Ct. Civ. R. 69(g)

7. Confirmation, deed and moving out

   The Superior Court must confirm the sale, usually about a month later. After confirmation the sheriff gives the buyer a deed and your right to redeem ends. If you have not moved, the lender or buyer can go back to Superior Court to have you removed.

   10 Del. C. §§ 5065, 5066

Common questions in Delaware