2021 Delaware Code
Title 10 - Courts and Judicial Procedure
Chapter 49. Executions
Subchapter XI. Scire Facias on Mortgage
§ 5061. Occasion for suing out writ; parties and notice [For application of this section, see 82 Del. Laws, c. 30, § 3].
(a) Subject to the provisions of §§ 5062A, 5062B, 5062C and 5062D of this title, upon breach of the condition of a mortgage of real estate by nonpayment of the mortgage money or nonperformance of the condition stipulated in such mortgage at the time and in the manner therein provided the mortgagee, the mortgagee's heirs, executors, administrators, successors or assigns may, at any time after the last day whereon the mortgage money ought to have been paid or other conditions performed, sue out of the Superior Court of the county wherein the mortgage premises are situated a writ of scire facias upon such mortgage directed to the sheriff of the county commanding the sheriff to make known to the mortgagor, and those persons described in subsection (b) of this section and such mortgagor's heirs, executors, administrators or successors that the mortgagor or they appear before the Court to show cause, if there is any, why the mortgaged premises ought not to be seized and taken in execution for payment of the mortgage money with interest or to satisfy the damages which the plaintiff in such scire facias shall, upon the record, suggest for the nonperformance of the conditions.
(b) In addition to the mortgagor, and such mortgagor's heirs, executors, administrators or successors, the following persons shall be necessary parties in every mortgage foreclosure action:
(1) Record owners acquiring title subject to the mortgage (terre tenants) which is being foreclosed upon; and
(2) Persons having an equitable or legal interest of record, including an interest pursuant to a judicial sale or a statutory sale pursuant to § 8771 et seq. of Title 9.
(c) The following persons whose real or equitable interests in the real estate may be adversely affected by plaintiff's cause of action shall not be deemed to be necessary parties and shall not be required to be joined as a defendant in mortgage foreclosure actions:
(1) Lien holders; and
(2) Tenants seised of an estate for years or at will.
Notice in writing, however, shall be given to the above classes of persons in the manner prescribed from time to time by the civil rules of the Superior Court of the State. It is the intent of this subsection that written notice be deemed sufficient in lieu of joinder to protect the property interests of the above classes of persons in the mortgaged real estate since those property interests are created and defined by the legal operations of existing statutes and law.
(d) The Superior Court may make all necessary rules respecting the form of process, the manner of issuance and return thereof, modes of proof and the manner of notice to persons having an interest in the real estate which relate to mortgage foreclosure proceedings.
(e) Those persons identified in subsection (b) of this section need not be joined as necessary parties in a mortgage foreclosure action when their interest arises subsequent to the filing of the mortgage foreclosure action. Any person acquiring an interest defined in subsection (b) of this section subsequent to the filing of the foreclosure action and at least 30 days prior to the sheriff's sale scheduled in the cause shall be given written notice in accordance with the rules of the Superior Court. Any person acquiring a property interest in real estate within 30 days prior to the sheriff's sale scheduled in the cause shall not be entitled to receive written notice of the sale, the public records of the foreclosure being sufficient notice.
Code 1852, § 2484; Code 1915, § 4399; Code 1935, § 4857; 10 Del. C. 1953, § 5061; 65 Del. Laws, c. 314, § 1; 70 Del. Laws, c. 186, § 1; 78 Del. Laws, c. 200, § 3; 82 Del. Laws, c. 30, § 3;
