2019 Delaware Code
Title 10 - Courts and Judicial Procedures
Chapter 49. Executions
Subchapter XI Scire Facias on Mortgage
§ 5062B Required notices.
(a) (1) Except as provided in paragraph (a)(2) of this section, with respect to an owner-occupied 1- to 4-family primary residential property, a mortgage foreclosure action may not be filed until 45 days after a notice of intent to foreclose is sent in the form and manner required by paragraph (a)(3) of this section, which notice may not be sent until the obligor on the loan secured by the mortgage has defaulted on the obligation set forth in the terms of the loan.
(2) The notice of intent to foreclose required under paragraph (a)(1) of this section shall not be required if the property subject to the mortgage has been abandoned, if the mortgage is held by the seller of the subject property who does not hold more than 5 such mortgages, if the obligor on the loan secured by the mortgage has voluntarily surrendered the property to the obligee, or if the default has continued after the automatic stay has been lifted or terminated in a bankruptcy proceeding, or if the default has continued after the bankruptcy proceeding has been dismissed.
(3) a. The notice of intent to foreclose required under paragraph (a)(1) of this section shall be sent:
1. To the borrower(s) by certified mail, postage prepaid, return receipt requested, bearing postmark from the United States Postal Service; and
2. To the borrower(s) by first class mail.
b. The notice of intent to foreclose shall:
1. Contain the following heading, in English and in Spanish, in at least 30-point boldface type, at the beginning of the notice:
“NOTICE REQUIRED BY DELAWARE LAW:
TAKE ACTION TO SAVE YOUR HOME FROM FORECLOSURE”2. Contain the following statement, in English and in Spanish, in at least 14-point boldface type, immediately following the heading:
“This is an official notice that the mortgage on your home is in default, and the lender intends to foreclose. Specific information about the nature of the default may be provided in the attached pages.
Mortgage foreclosure is a complex process. Some people may approach you about ‘saving’ your home. You should be careful about any such promises. The State encourages you to become informed about your options in foreclosure before entering into any agreements with anyone in connection with the foreclosure of your home. There are government agencies and nonprofit organizations that you may contact for helpful information about the foreclosure process. For the name and telephone number of an organization near you, please refer to the list later in this notice, call the Delaware Attorney General’s Foreclosure Hotline at 1-800-220-5424, or go to www.DEForeclosureHelp.org. The State does not guarantee the advice of these organizations. Do not delay dealing with the foreclosure because your options may become more limited as time passes.
EMERGENCY FINANCIAL HELP MAY BE AVAILABLE
The Delaware Emergency Mortgage Assistance Program (DEMAP) may be able to help to save your home. DEMAP is a loan program that provides Delaware homeowners with assistance in preventing residential mortgage foreclosures that result from circumstances beyond the homeowner’s control. If you are delinquent on your mortgage, you should meet with an approved DEMAP housing counseling agency as soon as possible, and explore your options with the counseling agency prior to applying to the DEMAP Program. To find a counseling agency, refer to the list later in this notice, call the Delaware Attorney General’s Foreclosure Hotline at 1-800-220-5424, or go to www.DEForeclosureHelp.org. Take this Notice with you when you meet with the counseling agency.”
3. Contain, in English and in Spanish, in at least 14-point boldface type, the phrase
‘‘For information on how to reinstate your loan, call the following telephone number:
________ .’’and the telephone number of a contact person or department the homeowner may call to obtain specific instructions on how to reinstate the mortgage loan;
4. Contain a statement, as of the date of the notice, of the nature of the default, the amount required to cure the default and reinstate the loan, including all past due payments, penalties, and fees, and any other actions the homeowner must take to cure the default;
5. Contain a list of approved DEMAP housing counseling agencies and the contact information for each listed agency; and
6. Any other information that the Superior Court shall require.
(4) If the borrower(s) may be eligible to apply for assistance through any proprietary loss mitigation program offered by the plaintiff or under any federal loss mitigation program in which the plaintiff participates, including, but not limited to, the Home Affordable Modification Program, the Second Lien Modification Program, the Home Affordable Unemployment Program, and the Home Affordable Foreclosure Alternatives Program, the potential plaintiff shall include a list of the potentially applicable loss mitigation programs, instructions for how to initiate a completed application for each such program, and a telephone number to call to confirm receipt of an application.
(5) The potential plaintiff (or the servicer sending notice on their behalf) shall include with the notice of intent to foreclose an accounting of the mortgage obligation covering the 12-month period prior to the date of the alleged default. The accounting shall include, at a minimum, a history of all payments made during the 12-month period prior to the date of the alleged default and the potential plaintiff’s allocation of those payments to principal, interest, attorneys’ fees, other applicable fees, and the allocation of such payments to the payment installments required by the mortgage. The accounting shall also include:
a. The due date for the mortgage;
b. Any other information as the potential plaintiff may be relying upon as the basis for the claim of default; and
c. A certification by the potential plaintiff (or the servicer sending notice on their behalf) that the information contained in the accounting is true and accurate to the best of its knowledge as of the date provided and that the information provided has been relied upon as the basis for the claim of default. Where a servicer provides the certification instead of the potential plaintiff, the servicer shall also identify itself as such and recite in such certification its authority to act on behalf of the potential plaintiff.
(b) As necessary to reflect changes in law, procedure, or loss mitigation options, the Superior Court may prescribe additional or alternate requirements for the form of a notice of intent to foreclose as described under paragraph (a)(3)b. of this section.
(c) The Delaware State Housing Authority shall make available upon request the list of approved DEMAP housing counseling agencies and the contact information for each listed agency required under paragraph (a)(3)b.5. of this section.
78 Del. Laws, c. 199, § 2; 79 Del. Laws, c. 27, §§ 1-3.
