Delaware is a judicial foreclosure state, requiring the lender to file a lawsuit to initiate foreclosure proceedings. Both federal mortgage servicing laws and Delaware foreclosure laws govern the foreclosure process in Delaware.
This article covers Delaware foreclosure laws, homeowner rights, and critical steps involved in the process, from the initial notice of foreclosure to the final foreclosure sale.
What Happens Before a Foreclosure Starts in Delaware?
Federal and state laws lay out certain preforeclosure requirements for Delaware homeowners facing foreclosure.
Federal Requirements Before Foreclosure Can Start
Before a foreclosure can officially start, the servicer must, in most cases, wait until your loan is more than 120 days delinquent. (12 C.F.R. § 1024.41 (2025).) Also, federal mortgage servicing laws require the servicer to contact you (or attempt to contact you) by phone to discuss foreclosure alternatives, called "loss mitigation" options, no later than 36 days after a missed payment and again within 36 days after each following missed payment. (12 C.F.R. § 1024.39 (2025).)
No more than 45 days after a missed payment, the servicer must let you know in writing about loss mitigation options that could be available and assign personnel to help you. (12 C.F.R. § 1024.39 (2025).)
Delaware's Preforeclosure Requirements
Under Delaware law, the lender must send a notice of intent to foreclose 45 days before starting a foreclosure on a residential property. (Del. Code tit. 10, § 5062B (2025).) The notice will include the following:
- the amount you must pay to “cure the default” (bring the account current) and prevent the foreclosure, and
- a list of housing counseling agencies you can contact to learn about mortgage assistance.
Also, the notice of intent will typically include a list of programs that provide foreclosure alternatives, along with application instructions and information about the Delaware Emergency Mortgage Assistance Program (DEMAP).
Delaware Foreclosure Process and Procedures
In Delaware, all foreclosures are judicial. The foreclosure starts when the lender files a lawsuit (a “complaint”) in court and serves you a copy. If you fail to answer the suit within 20 days, the lender will automatically win the case, and the court will issue a default judgment giving permission to sell the property.
You may ask the court to consider a defense to the lawsuit by responding to (answering) the suit. Then, the matter will proceed through the litigation process. If the lender prevails, the court will issue an order allowing a foreclosure sale. The lender must deliver a notice of sale to you at least ten days before the sale, as well as publicly post the notice and publish it in the local newspaper. (Del. Code tit. 10, § 4973 (2025).)
How Do Delaware Foreclosure Sales Work?
If you don’t get current on the loan, work out an alternative to foreclosure, or stop the process by filing for bankruptcy, the foreclosure sale will take place.
At the sale, the foreclosing lender will likely bid on your property using a “credit bid.” With a credit bid, the lender gets a credit in the amount of your debt. The lender can bid the total amount you owe on the loan, including fees and costs, or it may bid less.
Your Rights During Foreclosure Under Delaware Law
Delaware state law and the terms of your mortgage contract provide you with some important rights during the foreclosure process.
Foreclosure Mediation in Delaware
The complaint will include a notice informing you about the right to participate in Delaware’s foreclosure mediation program, an alternative dispute resolution process that can prevent a foreclosure. The program allows you to attend a mediation session with the lender and a neutral party (the mediator) to explore ways to avoid foreclosure. The lender can't get a judgment of foreclosure until after the mediation. (Del. Code tit. 10, § 5062C (2025).)
Reinstating the Mortgage in Delaware
While Delaware doesn’t specifically have a statute that allows you to stop the foreclosure by reinstating the loan (paying all missed payments, fees, and costs in one lump sum) after a foreclosure starts, many Delaware mortgage contracts give the right to do so, usually until the court enters a judgment. If not, your lender might agree to a reinstatement.
Redeeming After a Delaware Foreclosure Sale
You have the right to get the property back for a short period after a foreclosure sale by “redeeming” it, which means paying off the total mortgage debt, including interest, attorneys’ fees, costs, and any other legal charges. In Delaware, you can redeem the home at any time before the court confirms the foreclosure sale (see below). (Del. Code tit. 10, §§ 5065, 5066 (2025).)
Does Delaware Law Allow Deficiency Judgments?
In some states, including Delaware, when the lender is the high bidder at the sale but bids less than the total amount of the debt owed, it can get a deficiency judgment by filing a separate lawsuit against the borrower. (Del. Code tit. 10, § 5002 (2025).)
But if the sale results in excess proceeds (more money than what’s needed to pay off all the liens on your property), you’re entitled to that surplus money.
When Do I Have to Leave My Home in a Delaware Foreclosure?
As part of the process, the court must confirm the sale. If you don’t move out once the sale is confirmed, the lender (which is typically the high bidder at the foreclosure sale) may apply for a writ of possession from the court.
Then, an eviction notice will be placed on your door, letting you know when the sheriff will forcibly remove you and your belongings from the home if you don't move out.
Getting Help With a Delaware Foreclosure
While this article provides an overview of a typical Delaware foreclosure, federal and state laws are complex, and lenders and servicers frequently make mistakes or skip steps. However, most foreclosure errors go unchallenged.
If the lender or servicer skipped a step, made an error, or violated state or federal foreclosure laws, you could have a defense to the foreclosure, which could force the lender to start the process over or give you leverage to work out an alternative, like a loan modification. So, consider talking to an experienced foreclosure attorney to learn about different options in your circumstances.