Delaware Foreclosure Laws

In Delaware the primary instrument of security is the Mortgage, there is no Trust Deed and no Power of Sale clause, and therefore any foreclosure has to take place under judicial auspices. This process typically takes around 90 days to complete, but as the wheels of the courts sometime turn slowly, can take longer. The home owner has no rights of redemption and the lender is not allowed to pursue a deficiency claim, and this simplifies post-sale matters considerably.

There are a number of options available in pursuing the judicial foreclosure in Delaware, however the most commonly practiced methodology is the “Scire Facias” translated from Latin means “to know the making”.

This foreclosure process is very different from every other judicial foreclosure process. In virtually all other court processes in the case of a foreclosure, the burden of proof lies with the lender to prove that the borrower owes them the debt in terms of the mortgage lien. In this instance it is required for the borrower to prove to the courts that he is not in debt to the lender.

The lender files the law suit to obtain a foreclosure order and the borrower has to appear in court. They are served with a writ and have to appear at the court on a date not more than 20 days after the writ is served. They are then required to prove to the court why they do not owe the lender the debt. If their explanation satisfies the court, the court will not process a foreclosure order. If it does not, a court authorized foreclosure sale is granted to the lender. This sale is allowed to take place at the courthouse or the property by the Sheriff of the county where the property is situated.

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