- Who sends it
- The county sheriff serves it for your lender, which files the case in the Superior Court of the county where the home is
- What it starts
- A court case. Under the court rules an answer is due 20 days after service, but in a mediation case an answer is not late if filed by the mediation conference date
- Do this first
- Write down the date you were served, find the mediation notice on top, and call a housing counselor and legal aid
What these papers are in Delaware
Delaware foreclosures are court cases. Under 10 Del. C. § 5061, after a default the lender can get a writ of scire facias from the Superior Court of the county where the home is. The writ tells the sheriff to notify you to appear and "show cause, if there is any," why the home should not be seized and sold to pay the mortgage.
For an owner-occupied home with 1 to 4 units, the complaint must come with (10 Del. C. § 5062D):
- A statement of whether the case is in the Automatic Residential Mortgage Foreclosure Mediation Program, and if not, why not.
- If it applied, an affidavit that the 45-day Notice of Intent to Foreclose was sent, and the date it was sent.
- A statement of the debt the lender says is due, backed by an affidavit.
- The Notice of Foreclosure Mediation, attached to the front of your copy.
What it does and does not mean
- It is not a sale date and not an eviction. You still own the home, and you can stay while the case goes on.
- It does mean you are being sued. If you do nothing, the court can enter a default judgment, and the home can then be sold at a sheriff's sale.
- In a mediation case, no judgment can be entered until the day after your scheduled mediation conference (10 Del. C. § 5062C(n)).
- No judgment can be entered and no sheriff's sale held on an owner-occupied home unless the lender files a sworn affidavit that you had a chance to apply for the loss mitigation programs you may qualify for. If that affidavit is false, the case must be dismissed and you cannot be charged fees or costs for it (10 Del. C. § 5062A).
The national page on a summons and complaint explains foreclosure lawsuits in general.
Your answer deadline and how to count it
- Superior Court Civil Rule 12(a) says a defendant must serve an answer within 20 days after service of process, the complaint and any affidavit. Count 20 calendar days from the day the sheriff served you.
- If your case is in the mediation program, 10 Del. C. § 5062D(c) says no answer is untimely if it is filed on or before the date of any scheduled mediation conference. Do not rely on that date alone. If you checked "NO" on the Certificate of Participation and the conference is canceled, the certificate form warns the lender may seek judgment if you have not answered in the time allowed by law.
- Look for a notation on the face of the complaint saying allegations must be answered by affidavit. Delaware law lets lenders in scire facias cases require this (10 Del. C. § 3901(a)). If it is there and the lender filed a certified copy of the mortgage, you must answer those points in a sworn affidavit of defense, filed with your answer. If you do not, the points can be treated as admitted and a default judgment may be entered (10 Del. C. § 3901(c), (d); Rule 12(a)).
- Separate from the answer: you have 30 days from service of the mediation notice to meet a housing counselor and file your Certificate of Participation (10 Del. C. § 5062C(e)(1)).
What to do this week
- Write the date you were served on the first page and keep every paper together.
- Find the Notice of Foreclosure Mediation and Certificate of Participation on top of the complaint. Call a HUD-approved housing counselor from its list right away.
- Call legal aid about your answer, especially if the complaint demands an affidavit of defense. Delaware Legal Help Link can connect you with free legal aid groups.
- Check the affidavits. Does the notice-of-intent affidavit give a date at least 45 days before the case was filed? Does the debt match your records?
- Keep applying for loss mitigation with your servicer and keep copies of everything you send.
- Read how foreclosure works in Delaware to see each step that follows.
Free help in Delaware and scam warnings
Legal Services Corporation of Delaware publishes a free guide to foreclosure in Delaware. Delaware Legal Help Link connects you with the state's free legal aid groups. If you do not qualify for free help, the Delaware State Bar Association explains its lawyer referral service. The Attorney General's Foreclosure Hotline is (800) 220-5424. See the Delaware foreclosure help page for more.
- Court filings are public, and people watch them. Expect mail and calls from companies offering to save your home.
- A Delaware foreclosure consultant cannot take any payment until every promised service is fully done, and its contract must let you cancel at any time without penalty (6 Del. C. ch. 24B).
- A company selling loan modification help cannot take a fee until you have signed a modification agreement with your lender (6 Del. C. § 2406C).
The rest of the Delaware process
See how foreclosure works in Delaware, the timeline, ways to stop it and free help in Delaware, or read the national guide to this letter.
Common questions
What does scire facias sur mortgage mean?
It is the name of a Delaware mortgage foreclosure lawsuit. The writ calls on you to show cause, if there is any, why your home should not be seized and sold to pay the mortgage (10 Del. C. § 5061). Treat it like any lawsuit and act right away.
How many days do I have to answer a Delaware foreclosure complaint?
Superior Court Civil Rule 12(a) gives 20 days after service. In a case in the mediation program, 10 Del. C. § 5062D(c) says an answer filed on or before the scheduled mediation conference date is not untimely. Ask legal aid which date applies to your case.
What is an affidavit of defense?
It is a sworn statement giving the specific facts behind your defense. If the complaint has a notation requiring one and the lender filed a certified copy of the mortgage, you must file it with your answer, or the court may treat the lender's claims as admitted (10 Del. C. § 3901).
Can the lender win before my mediation conference?
Not in a case covered by the mediation program. No judgment may be entered until the day after the date the mediation conference is scheduled (10 Del. C. § 5062C(n)).
Other Delaware letters
- Notice of Intent to Foreclose ("Notice Required by Delaware Law: Take Action to Save Your Home from Foreclosure")This is the notice Delaware law requires before a lender can file a foreclosure case on an owner-occupied home with 1 to 4 units. The lender must wait 45 days after sending it before it can file in Superior Court. Use those days to check the numbers, call a free housing counselor and apply for help.
- Notice of Foreclosure Mediation and Certificate of ParticipationThis notice comes attached to the front of the foreclosure complaint. It tells you a free mediation conference with your lender will be scheduled 45 to 75 days after you were served. To take full part, meet a HUD-approved housing counselor and file the Certificate of Participation within 30 days.
- Notice of Sheriff's Sale (advertisement of sale of real estate)A Delaware notice of sheriff's sale means the court has entered judgment and the sheriff has set a date to auction your home. The sale is not final until the Superior Court confirms it, usually the next month. Until then you can still object or redeem.
- Rule to Show Cause Why a Writ of Possession Should Not Be AwardedThis court paper means the buyer at the sheriff's sale has asked the Superior Court for a writ of possession to put the buyer in possession of the home. You get a date to tell the court why the writ should not be issued. The writ cannot issue until the court makes the rule absolute.
Sources
- 10 Del. C. ch. 49, subch. XI, Scire Facias on Mortgage (§§ 5061, 5062A, 5062C, 5062D, 5063)
- 10 Del. C. ch. 39 (§ 3901, affidavits of defense)
- Rules of Civil Procedure for the Superior Court of Delaware, 2026 edition (Rule 12(a))
- Delaware Department of Justice: Certificate of Participation form
- 6 Del. C. ch. 24B, subch. II, Foreclosure Consultants
- Legal Services Corporation of Delaware: A Guide to Foreclosure in Delaware
- Delaware Legal Help Link