How Foreclosure Works in Delaware

Judicial. After a default, the lender forecloses by filing a lawsuit (a writ of "scire facias" on the mortgage) in the Superior Court of the county where the property is located. If the lender wins, the property is sold at a sheriff's sale, which the court must confirm.

For an owner-occupied 1- to 4-family primary residence, the lender must send a "Notice of Intent to Foreclose" to all borrowers by both certified mail and first-class mail after the default, and cannot file the foreclosure until 45 days after it is sent (with exceptions such as abandoned property, small seller-financers, voluntary surrender, or certain bankruptcy situations). The notice must carry a required English/Spanish heading ("TAKE ACTION TO SAVE YOUR HOME FROM FORECLOSURE") and information about help. The complaint must then be served with a Notice of Foreclosure Mediation, and tenants and lienholders must receive written notice under court rules. Notice of the sheriff's sale is given as in other execution sales.

For a covered owner-occupied home, the foreclosure cannot be filed until 45 days after the Notice of Intent to Foreclose is sent. In mediation-eligible cases, the lender cannot seek judgment until the day after the scheduled mediation conference, and the homeowner's answer is timely if filed on or before the date of any scheduled mediation conference. No judgment may be entered (and no sheriff's sale held) on an owner-occupied 1- to 4-family home until the lender files an affidavit that the homeowner had the chance to apply for loss-mitigation programs.