How does foreclosure work in Delaware, and how long does it take?

Judicial, not non-judicial

A Delaware mortgage is foreclosed by a lawsuit called a scire facias action in Superior Court. Under § 5061, after a default the lender may ask the court for a writ directing the sheriff to tell the borrower to appear and “show cause” why the property should not be seized and sold to pay the debt. The borrower and anyone who holds a recorded interest are parties. Lienholders and tenants are not parties but must get written notice (§ 5061(c)).

If the owner does not appear on the return day, the court enters judgment and the lender gets a writ (levari facias) to sell the property (§ 5063).

The steps, in order

1. Missed payments. The CFPB says “your servicer can’t start the foreclosure process until at least 120 days after you become delinquent,” except in rare cases.
2. Notice of intent to foreclose. For an owner-occupied 1-4 family primary residence, no foreclosure suit may be filed until 45 days after this notice is sent by certified mail and first-class mail. It must carry the heading “TAKE ACTION TO SAVE YOUR HOME FROM FORECLOSURE” in English and Spanish, state how to cure the default, include a 12-month payment history, and list HUD-certified counselors, the Attorney General’s hotline and the Delaware State Housing Authority (DSHA) (§ 5062B). The notice is not required if the home is abandoned or voluntarily surrendered, or after a bankruptcy stay ends.
3. Complaint and mediation notice. The complaint must say whether the case is in the mediation program and must carry the mediation notice (§ 5062D).
4. Mediation. The court schedules a conference not less than 45 and not more than 75 days after the notice was served (§ 5062C(d)). The owner should meet a HUD-approved housing counselor and file a Certificate of Participation within 30 days of service. The owner gives a financial worksheet at least 14 days before the conference. The mediation notice tells the owner the lender cannot seek judgment until the day after the conference (§ 5062C(c)).
5. Loss mitigation affidavit. The lender must file an affidavit that the owner had the chance to apply for loss mitigation before judgment or sale (§ 5062A).
6. Judgment and writ of sale. If the owner does not appear on the return day, judgment is entered for the lender (§ 5063). Otherwise the case goes on in court.
7. Notice of sale. The sheriff posts notices at least 10 days before the sale in 10 of the most public places of the county, delivers a notice to the owner, and advertises for two weeks in two newspapers (§ 4973).
8. The sale. At the premises, the courthouse, the Sheriff’s Office, or a public building or public property in the county, as the sheriff chooses (§ 4974).
9. Confirmation and deed. The court confirms the sale, and then the sheriff delivers the deed (§ 4976).

How long does it take?

No statute I read sets a total timeline. Add the legal minimums and the court’s own scheduling, and the real length depends on the case. Example: a loan is 120 days late on June 1. The notice of intent goes out on June 2, so the suit cannot be filed before July 17. If the owner is served on July 25, the mediation falls between September 8 and October 8. Judgment, notice of sale and confirmation come after that.

Can you get the house back after the sale?

The sections read give no statutory right to buy back the home after the sheriff’s sale. Section 5066 says the buyer holds the property “discharged from all equity of redemption, and all other incumbrances made and suffered by the mortgagor.” Any surplus after the debt, interest and costs “shall be rendered to the owner of the premises at the time of sale” (§ 5067). Your real chance to keep the home is before the sale: reinstatement, a loan modification, mediation or a sale on your own. Buying a foreclosed home? Sheriff’s sales are exempt from Delaware’s seller disclosure law (see seller disclosure) and from the federal lead paint disclosure rule (EPA).

Deficiency judgments

The statutes above cover the sale and the surplus. They do not address a claim for any balance left after a sale for less than the debt. I could not source a Delaware rule on that point, so ask a Delaware attorney before assuming a shortfall is or is not owed. Our attorney page explains why Delaware lawyers are involved in real estate matters.

Help for homeowners in default

• Attorney General’s mediation hotline: (800) 220-5424, or mortgage.mediation@delaware.gov. The program is free if you own a 1-4 unit home, live in it as your primary residence, and the mortgage is being foreclosed. Outcomes can include a loan modification, repayment plan, forbearance, short sale or deed in lieu.
• Delaware State Housing Authority: (302) 739-4263 or (888) 363-8808. Its page says the Delaware Emergency Mortgage Assistance Program (DEMAP) is not currently accepting applications. A Wilmington Senior Tax Assistance Program offers up to $3,000 to Wilmington homeowners age 62 or older facing foreclosure over unpaid property taxes or sewer and water bills.
• HUD-approved housing counselors: call (800) 569-4287, or the Homeowners Hope Hotline at (888) 995-HOPE. Counseling is free.
• Apply early: the CFPB says servicers must review a complete application received “more than 37 days before your scheduled foreclosure sale.”
• Scams: HUD warns against firms that promise to stop foreclosure and ask you to sign over authority or title. See also the escrow account guide for tax and insurance arrears.