2006 Delaware Code - Subchapter II — Monition Method of Sale in New Castle County

§ 2222. Established.

In addition to all existing methods and authority for the collection of service charges due to the Office of Finance of New Castle County, the monition method and authority is hereby established. (63 Del. Laws, c. 169, § 1; 71 Del. Laws, c. 401, § 76.)

§ 2223. Affidavit; judgment; praecipe; issuance.

(a) The Chief Financial Officer of New Castle County, or a county attorney, may file an affidavit in the office of the Prothonotary of the Superior Court in and for New Castle County. The affidavit shall state that the person against whom the service charges, sought to be collected, were assessed is justly indebted to the Office of Finance of New Castle County for the amount of service charges, including accrued penalties, due on the property against which the service charges were assessed. The description of the property, as the same appears upon the assessment rolls of New Castle County, shall be a sufficient identification and description of the property. Thereupon the Prothonotary shall make a record of the same on a special judgment docket of the Superior Court against the property mentioned or described in the affidavit which record shall consist of the following:

(1) The name of the person in whose name the assessment was made;

(2) The description of the property as the same shall appear upon the assessment rolls;

(3) The year or years for which the service charges are due and payable;

(4) The date of the filing of such affidavit;

(5) The amount of the judgment, the same being the amount set forth in the affidavit.

(b) Such judgment shall be indexed in the judgment docket itself under the hundred in which the property is located as the location appears upon the assessment rolls so prepared, and under the hundred by communities where the name of the community appears upon the assessment rolls so prepared, and by referring to the page in the judgment docket whereon the record shall appear.

(c) Thereafter upon a praecipe for monition filed in the office of the Prothonotary by the Chief Financial Officer for New Castle County, or a county attorney, a monition shall be issued by the Prothonotary to the Sheriff of New Castle County, which monition shall briefly state the amount of the judgment for the service charges, including accrued penalties, due and the years thereof, together with a brief description of the property upon which the service charges are a lien. A description of such property as same shall appear upon the assessment rolls so prepared shall be a sufficient description. (63 Del. Laws, c. 169, § 1; 71 Del. Laws, c. 401, §§ 76, 77, 78.)

§ 2224. Form.

The monition shall be in substantially the following form:

To all persons having or claiming to have any title, interest or lien upon

the within described premises, take warning that unless the judgment for the

taxes or assessment service charges stated, including accrued penalties,

herein is paid within 20 days after the date hereof or within such period of

20 days, or evidence of the payment of taxes, service charges and accrued

penalties herein claimed is filed in the office of the Prothonotary, which

evidence shall be in the form of a receipted bill or duplicate thereof,

bearing date prior to the filing of the lien in the office of the Prothonotary

for New Castle County, or an affidavit is filed in the office of the

Prothonotary denying the service charges, in whole or in part pursuant to §

2226 of this title, the Office of Finance may proceed to sell the property

herein mentioned or described for the purpose of collecting the judgment for

the service charges herein stated, including accrued penalties thereon and all

costs incurred in the collections process.

...........................................................................……………………….

Name of person in Description of Year or Amount of

whose name property property years judgment

(63 Del. Laws, c. 169, § 1; 71 Del. Laws, c. 401, §§ 76, 79.)

§ 2225. Service; written notice; posting; return; alias or pluries monition.

(a) The monition, or a copy thereof, shall be served upon the person against whom the service charges sought to be collected were assessed. In addition, it shall be served upon all persons having an equitable or legal interest of record, including an interest pursuant to a judicial sale or a statutory sale. The monition shall be served as are summons under Superior Court Civil Rule 4(f)(1) in addition to that service allowed or required by applicable statutes. In the event service as heretofore provided cannot be obtained, the following shall constitute legal and sufficient service:

(1) Upon persons whose whereabouts are unknown. -- One return by the Sheriff of a monition without service together with publication of a notice once per week for 2 weeks in a newspaper of general circulation in the county in which the real estate is located and copies of the monition mailed to such persons at their last known address by registered or certified mail shall constitute legal and sufficient service.

(2) Upon nonresidents. -- Service pursuant to Chapter 31 of Title 10 or other applicable statute shall constitute legal and sufficient service upon nonresidents.

(b) The lienholders whose real or equitable interests in the real estate may be adversely affected shall not be required to be served with the monition, but shall be sent notice in writing. The notice shall be mailed by certified mail, return receipt requested, to the present or last known address of the person entitled to notification. The notice shall be mailed within 10 days after the monition issues from the Prothonotary. A copy of the notice, certified as a true and correct copy by the Chief Financial Officer or a county attorney, together with a copy of the certified mail, return receipt or a copy of the unclaimed mail shall be filed with the Prothonotary and when filed shall be conclusive evidence of the receipt of notice.

(c) The monition, or a copy thereof, shall be posted by the Sheriff upon some prominent place or part of the property against which the judgment for the service charge is a lien.

(d) The Sheriff shall make due and proper return of his proceedings under the monition to the Prothonotary within 20 days after issuance of the monition.

(e) Alias or pluries monition may issue upon praecipe filed by the Office of Finance. (63 Del. Laws, c. 169, § 1; 71 Del. Laws, c. 401, §§ 76, 80.)

§ 2226. Affidavit of defense.

The person against whom service charges sought to be collected were assessed, or any person having an equitable or legal interest of record, including an interest pursuant to a judicial sale or a statutory sale, at any time before the expiration of 20 days after service of the monition, may file with the Prothonotary an affidavit denying the service charges due in whole or in part, and stating with specificity the reasons for disputing the service charge. Any service charge not specifically disputed in the affidavit of defense shall be paid in full at the time the affidavit is filed. (63 Del. Laws, c. 169, § 1.)

§ 2227. Jury trial.

Where an affidavit of defense has been filed pursuant to § 2226 of this title, the Superior Court shall proceed to direct an issue to be tried by a jury at the bar of the Superior Court to ascertain whether there is a just demand and the amount thereof, and their verdict or finding shall be final and conclusive. (63 Del. Laws, c. 169, § 1.)

§ 2228. Discharge of property from lien.

If the person against whom service charges sought to be collected were assessed, or any person having an equitable or legal interest of record, including an interest pursuant to a judicial sale or a statutory sale, gives to the Office of Finance a bond with sufficient surety to be approved by the Court to pay any judgment recovered against such person with costs and penalties as set pursuant to § 2210 of this title, the property against which the service charges were assessed shall be discharged from lien. (63 Del. Laws, c. 169, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 401, §§ 76, 81.)

§ 2229. Writ of venditioni exponas.

(a) At any time after the expiration of 20 days following the return to the Sheriff upon the monition, unless before the expiration of the 20 days the judgment and cost on the judgment shall be paid or evidence of the payment of such service charges evidenced by a receipted bill or a duplicate thereof bearing date therefor prior to the filing of the lien for record in the office of the Prothonotary; or unless an affidavit is filed in the office of the Prothonotary denying the service charges in whole or in part pursuant to § 2226 of this title; upon application in writing by the Office of Finance, a writ of venditioni exponas shall issue out of the office of the Prothonotary directed to the Sheriff commanding the Sheriff to sell the property mentioned or described in the writ and make due return of the proceedings thereunder in the same manner as it is now applicable with respect to similar writs of venditioni exponas issued out of the Superior Court. The property shall be described in the writ under the description thereof as it appears on the assessment rolls and by metes and bounds where obtainable, but nothing herein contained shall be construed to invalidate a writ or a sale pursuant thereto containing only the description as it appears on the assessment rolls or a writ bearing only a description by metes and bounds.

(b) The writ shall be substantially in the following form:

NEW CASTLE COUNTY, SS.

The State of Delaware.

TO THE SHERIFF OF NEW CASTLE COUNTY,

GREETINGS:

WHEREAS, by a monition issued out of the Superior Court dated at

Wilmington, the ........ day of .................. A.D., 19 ...., IT WAS

COMMANDED, that you should serve the person against whom service charges

sought to be collected were assessed, or any person having an equitable or

legal interest of record, including an interest pursuant to a judicial sale or

a statutory sale, and, further, that you should post the said monition or

copy thereof upon the real estate therein mentioned and described, and make a

return to the said Superior Court within 10 days after said service and

posting:

That on the ........ day of .................. A.D., 19 ...., you

returned that a copy of the said monition was served upon the person against

whom service charges sought to be collected were assessed, or any person

having an equitable or legal interest of record, including an interest

pursuant to a judicial sale or a statutory sale on the ........ day of

.................. A.D., 19 ...., and was posted on the real estate therein

mentioned and described on the ........ day of .................. A.D., 19

.... .

We therefore now command you to expose to public sale, the real estate

mentioned and described in said monition as follows: .................... and

that you should cause to be made as well a certain debt of

.................... Dollars ($ ......) lawful money of the United States,

which to the said Office of Finance of New Castle County, is due and owing, as

also the sum of .................... Dollars ($ ......) lawful money as

aforesaid, for its costs, which it has sustained by the detaining of that

debt, whereof the said lf20 was convicted as it appears of record and against

which said property is a lien:

And have you that money before the Judges of our Superior Court at

Wilmington, on Monday the ........ day of next, to render to the said Office

of Finance of New Castle County as aforesaid, for its debt and costs as

aforesaid, and this writ:

WITNESSETH, the Honorable .................... at Wilmington, the

........ day of .................. A.D., 19 .... .

....................

Prothonotary

Issued:

(c) The description contained in such monition shall be a sufficient description of the real estate to be sold under such writ. (63 Del. Laws, c. 169, § 1; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 401, §§ 76, 82.)

§ 2230. Effect of sale of real estate or interest therein.

Any real estate or interest therein sold under this subchapter shall vest in the purchaser all the right, title and interest of the person in whose name the property was assessed, and/or all right, title and interest of the person or persons who are the owners thereof, and likewise freed and discharged from any liens and encumbrances, dower or curtesy or statutory right, in the nature of a dower or curtesy or statutory right, whether absolute or inchoate, in or to the real estate. (63 Del. Laws, c. 169, § 1.)

§ 2231. Petition for deed of conveyance.

If the owner of the property or his legal representatives fail to redeem the property as provided in this subchapter, the purchaser of the property or his legal representative, successors or assigns may present a petition to the Superior Court setting forth the appropriate facts in conformity with this subchapter and pray that the Superior Court make an order directing the Sheriff, then in office, to execute, acknowledge and deliver a deed conveying the title to the property to the petitioner; and thereupon the Superior Court shall have power, after a hearing upon the petition, to issue an order directing the Sheriff to execute, acknowledge and deliver a deed as prayed for in the petition. A description of the property as the same shall appear upon the assessment rolls, and a description by metes and bounds where obtainable shall be a sufficient description in any such deed. (63 Del. Laws, c. 169, § 1.)

§ 2232. Redemption by owner.

The owner of any such real estate sold under this subchapter or his legal representatives may redeem the same, at any time within 60 days from the day the sale thereof is approved by the Court:

(1) By paying to the purchaser or his legal representatives, successors or assigns, the amount of the purchase price and 15 percent in addition thereto, together with all costs incurred in the cause; or

(2) If the purchaser or his legal representatives, successors or assigns refuse to receive the same, or do not reside or cannot be found within the County of New Castle, by paying the amount into the Court for the use of the purchaser, his legal representatives or assigns. (63 Del. Laws, c. 169, § 1.)

§ 2233. Petition by owner after redemption; effect of redemption.

If the owner of any real estate sold under an order of sale or his legal representative redeems the real estate, he may present to the Superior Court a petition setting forth that fact and thereupon the Superior Court, after hearing and determining the facts set forth in the petition, shall have power to cause to be entered upon the record of the judgment, under which the real estate was sold, a memorandum that the real estate described in the proceedings upon which the judgment was entered has been redeemed. Thereafter the owner shall hold such redeemed real estate subject to the same liens and in the same order of priority as they existed at the time of the sale thereof, excepting so far as the liens have been discharged or reduced by the application of the proceeds by the Sheriff from the sale. (63 Del. Laws, c. 169, § 1.)

§ 2234. Approval of sale.

Upon the return of the proceedings under a writ of venditioni exponas, the Superior Court may inquire into the regularity of the proceedings thereunder, and either approve the sale or set it aside. (63 Del. Laws, c. 169, § 1.)

§ 2235. Service charge to be lien upon property; construction of "Superior Court"

(a) No proceedings shall be brought under this subchapter unless the service charge sought to be collected hereunder shall, at the time of the filing of the praecipe in the office of the Prothonotary, be and constitute a lien upon the property against which the service charge was assessed or laid as established in § 2211(b) of this title.

(b) Whenever the Superior Court is mentioned in this subchapter, the same shall be held to embrace the Judges or any Judge thereof, and any act required or authorized to be done under this subchapter may be done by the Superior Court or any Judge thereof in vacation thereof, as well as in term time. (63 Del. Laws, c. 169, § 1.)

§ 2236. Fees and costs.

(a) The fees and costs to be taxed in all proceedings under this subchapter, where not otherwise provided for, shall be as follows:

(1) The following fees shall be charged by the Prothonotary:

Filing praecipe .............................................. $ 1.10

Issuing monition and copy ...................................... 2.75

Issuing alias or pluries monition and copy .............. 2.75

Writ of venditioni exponas .................................... . 2.25

Filing any petition in Superior Court under this subchapter ... 1.00

Costs of paying money into Superior Court ...................... 1.00

Costs of paying money out of Superior Court for each check drawn

......................................................................... 1.00

(2) The following fees shall be charged by the Sheriff:

Posting monition or copy thereof ............................. $ .75

Posting each alias or pluries monition or copy thereof ......... .75

(b) County Council of New Castle County may provide by ordinance for fees and costs to be taxed in all proceedings under this chapter. (63 Del. Laws, c. 169, § 1; 71 Del. Laws, c. 401, §§ 76, 83.)

§ 2237. Purchase at Sheriff's Sale by agent of County.

New Castle County Council may authorize any person to bid at the sale of any real estate under this chapter and, in the event that such person is the highest and best bidder therefor, title thereto shall be taken in the name of New Castle County. County Council shall not authorize anyone to bid in excess of the aggregate amount of all taxes, service charges, penalties and obligations due to New Castle County, including costs incurred in the collection process. (71 Del. Laws, c. 401, § 84.)