Delaware Foreclosure Laws
Judicial Foreclosure Available: Yes
Non-Judicial Foreclosure Available: No
Security Instruments: Mortgage
Right of Redemption Period: No
Deficiency Judgments Allowed: Not on Judicial Foreclosure; Only if Lawsuit Filed on Note
Time Frame: As Low as 90 Days; As High as 200 Days
Public Notice: Complaint
Delaware is different than many other states when it comes to foreclosure law. Delaware is a lien theory state, in which the property acts as security for the loan. In Delaware, the document that places a lien on a property is referred to as a mortgage.
Only judicial foreclosure proceedings are allowed in Delaware, in which a court makes the final judgment of foreclosure. The most common judicial foreclosure procedure in the state is known as Scire Facias, which means that the burden of proof lies with the borrower to show that he or she is not in default as opposed to the lender having to prove that the debtor is in fact in default.
Deficiency judgments are not permitted in Delaware with judicial foreclosure proceedings. They may be allowed if a lawsuit is filed on note. Mortgagors in the state do not have a right of redemption.
Types of Foreclosures Allowed in Delaware
In Delaware, only judicial foreclosures on defaulted property are permitted. This type of foreclosure, also known as foreclosure by judicial sale, involves selling the defaulted property under court supervision. In order for a judicial foreclosure to be possible, no power of sale clause may be present in the loan documents.
To begin the process of foreclosure, the lender must file a lawsuit in order to obtain an order to foreclose. In Delaware, the burden of proof to show lies with the borrower to prove that he or she is not in default, as opposed to the lender having to prove that the borrower is in default, which is a procedure known as Scire Facias. After being issued a notice of foreclosure, the mortgagor must appear in court within twenty (20) days to provide evidence as to why the foreclosure should not happen. If the borrower fails to appear or does not provide sufficient proof that the foreclosure should not happen, an order to foreclose will be issued by the court and a sale will be authorized.
The foreclosure sale is held by the sheriff either at the county courthouse where the property is located or at the property itself. A notice of sale must be posted at the property and at other public places throughout the county where the property is located. The foreclosure sale must be held no less than fourteen (14) days after the notice of sale has been posted.
The borrower has no right of redemption once the sale has been confirmed by the court, which means that once a foreclosure sale has been confirmed, the borrower cannot reclaim the foreclosed property by satisfying the loan and any underlying costs. Typically, a confirmation hearing is scheduled with thirty (30) days notice after the sale. The mortgagor can try to reclaim the property before the sale is made final but not after.
Working with a Foreclosure Lawyer in Delaware
These tough economic times have led many mortgagors to struggle with financial matters, especially mortgages. Homeowners in Delaware may be finding it difficult to keep up with payments and more and more homes are being reposed. However, there is help available for mortgagors in Delaware that have defaulted on their loans. Those who are struggling with their mortgages should speak to a skilled Delaware foreclosure lawyer immediately to ensure that they do not lose their home.
Foreclosure attorneys work diligently to devise a plan of action based on the debtor’s financial needs to present to the lender in hopes of staving off foreclosure. They may suggest mortgage modification, short sale, refinancing or even a temporary halt in payment. Regardless of the plan, foreclosure lawyers do not rest until an agreement has been arranged that prevents borrowers from losing their homes.
Regardless of the reason behind the default, be it job loss, a pay cut or medical issues, mortgagors can turn to foreclosure attorneys in Delaware for help in fighting for their rights as homeowners. Foreclosure lawyers will always look for an alternative to seizure that works for both debtors and lenders in order to ensure that all parties are satisfied.
If your property is being foreclosed upon, seek the help of a foreclosure attorney in Delaware right away to protect your home from repossession.