SENATE BILL NO. 380
AS AMENDED BY SENATE AMENDMENT NO. 2
AN ACT TO AMEND CHAPTER 49, SUBCHAPTER XL TITLE 10, DELAWARE CODE. RELATING TO OCCASION FOR SUING OUT WRITS OF SCIRE FACIAS; PARTIES AND NOTICE.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Chapter 49. Subchapter XL Title 10 of the Delaware Code by deleting §5061 in its entirety and substituting in lieu thereof as follows:
§5061. Occasion for Suing Out Writ; Parties and Notice
(a) Upon breach of the condition of a mortgage of real estate by non- payment of the mortgage money or non- performance of the conditions stipulated in such mortgage at the time and in the manner herein provided the mortgagee, his 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 scare facies upon such mortgage directed to the Sheriff of the county commanding him to make known to the mortgagor, and those persons described in subsection (b) hereof and such mortgagor's heirs, executors, administrators or successors that he or they appear before the Court to show cause, if there is any, why the mortgaged premises ought not be be seized and taken in execution for payment of the mortgage money with Interest or to satisfy the damages which the Plaintiff in such scare facias shall, upon the record. suggest for the non-performance 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:
(i) Record owners acquiring title subject to the mortgage (terre- tenants) which is being foreclosed upon; and
(II) Persons having an equitable or legal interest of record. Including an interest pursuant to a judicial sale or a statutory sale pursuant to 9 Del. C. §8771. et. mg.
(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:
(I) Lien holders; and
(U) 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 of Delaware. 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 subparagraph (b) above 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 subparagraph (b) above 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."
Section 2. This legislation shall be effective with respect to all mortgage foreclosure actions commenced 90 days after its adoption.
Approved June 27, 1986