Foreclosure Guidelines in Delaware

Highlights:

Judicial/ Non-Judicial Foreclosure: Only Judicial Foreclosure

Right of Redemption/ Deficiency Judgment: No/ No

Timeline: 90 Days, Can vary depending on individual cases

Deed of Trust / Mortgage as Security Instruments: Mortgage
Judicial Foreclosure Process:   

Though there are a few options for Judicial foreclosure procedure available in the state of Delaware, the most used procedure is called ‘Scire Facias’.

In this process, an order of foreclosure is filed in the court by the lender and the notice on the same is issued to the borrower. The borrower is required to appear before the court within 20 days of receiving the notice which basically is a writ petition requesting details about the default and the borrower’s arguments on withholding the foreclosure process.

In effect, the borrower needs to prove that they have not defaulted on the loan (if they want to stop the foreclosure procedure), instead of the lender having to prove that the borrower has defaulted on the loan.

In case the court is not satisfied with the borrower’s reply and the borrower fails to prove that they have not defaulted on the loan, the court can order the foreclosure proceedings to be initiated immediately.

The foreclosure proceedings consists of selling the property through a public auction either at the courthouse or at the location of the property. The notice for the above mentioned sale needs to be posted on public places and also on the property, mentioning the time, date and other details about the sale proceedings in the county where the property is located. The foreclosure procedure is carried out by the sheriff and the property is sold to the highest bidder through a public auction.

The borrower does not have an option of right of redemption – So, they cannot claim the property back once the sale is completed. The lender cannot file for a deficiency judgment in case the property is sold for a lesser value than what is owed by the borrower.