Right to a notice of intent to foreclose 45 days before a case is filed
Del. Code tit. 10, § 5062B(a)(1)
In plain words
For an owner-occupied 1–4 family home in Delaware, a foreclosure case cannot be filed until 45 days after the lender sends a notice of intent to foreclose. Delaware foreclosures go through court, and after judgment the sheriff’s sale must be advertised and you must be notified before it.
Who is protected
Owners of owner-occupied 1–4 family primary residences in Delaware.
When it applies
- Only in Delaware.
- Only while you are behind but have no foreclosure notice yet or after a notice of default.
- Only if the home is your primary residence.
What you can do
Put the deadline on your calendar
Use this time to contact a housing counselor and send a loss-mitigation application.
Deadline: 45 days after the notice of intent to foreclose
Open the toolAsk in writing
Ask the servicer in writing for a reinstatement figure and a loss-mitigation review.
Open the toolRead the Delaware guide
Our Delaware page explains the whole process step by step, with its sources and free local help.
Open the tool
Honest limits
- Delaware has no statutory right to reinstate; ask your servicer.
- This is general education, not legal advice. Laws change and details depend on your papers and your court; check the current law or ask a lawyer or legal aid.
The law
- State lawNotice of intent to foreclose
Del. Code tit. 10, § 5062B(a)(1)
Exact part: (a)(1)
What it says: No foreclosure may be filed until 45 days after a notice of intent to foreclose is sent.
Read the official texthttps://delcode.delaware.gov/title10/c049/sc11/index.html
Court cases
- Homeowner lostSame topicBoren v. U.S. National Bank Ass'n
Boren v. U.S. Nat'l Bank Ass'n, 807 F.3d 99 (5th Cir. 2015)
a lender may abandon a prior acceleration by giving notice that it seeks less than the full accelerated balance, which restarts the four-year limitations period
- Homeowner lostSame topicMartins v. BAC Home Loans Servicing, L.P.
Martins v. BAC Home Loans Servicing, L.P., 722 F.3d 249 (5th Cir. 2013)
a mortgage servicer acting for a properly assigned mortgagee may foreclose in Texas without possessing the original note, and an oral promise to modify a large loan is not enforceable
- Partial winSame topicReinagel v. Deutsche Bank National Trust Co.
Reinagel v. Deutsche Bank Nat'l Tr. Co., 735 F.3d 220 (5th Cir. 2013)
a Texas borrower may challenge an assignment of the loan on any ground that renders it void, though not on grounds that make it merely voidable
- Partial winSame topicCulhane v. Aurora Loan Services
Culhane v. Aurora Loan Servs., 708 F.3d 282 (1st Cir. 2013)
a mortgagor may contest the validity of a MERS assignment to the foreclosing entity, although the MERS framework itself is lawful
- Homeowner wonSame topicJerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L.P.A.
Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, L.P.A., 559 U.S. 573 (2010)
the FDCPA's bona fide error defense does not excuse a debt collector's incorrect interpretation of what the Act requires
- Homeowner lostSame topicWhittier v. Ocwen Loan Servicing, L.L.C.
Whittier v. Ocwen Loan Servicing, L.L.C., 594 F. App'x 833 (5th Cir. 2014) (per curiam) (unpublished)
a RESPA claim against a servicer fails without evidence of actual damages caused by the violation
Related rights
Automatic foreclosure mediation for owner-occupied homes
Del. Code tit. 10, § 5062C(a)–(b)
Delaware runs an Automatic Residential Mortgage Foreclosure Mediation Program for owner-occupied 1–4 family homes. A notice of foreclosure mediation must come with the complaint. Taking part lets you meet with the lender and a mediator to look for an alternative to foreclosure. File your answer on time unless a lawyer tells you otherwise.
Read this rightThe right to be heard in court, and to speak for yourself
U.S. Const. amend. XIV, § 1Due Process Clause
Due process means that before the government, through a court, takes your property, you must get a meaningful chance to be heard. In federal court, you have a legal right to present your own case without a lawyer. Most state courts also let people represent themselves, under state rules.
Read this rightThe right to real notice before the government takes or sells your home
U.S. Const. amend. XIV, § 1Due Process Clause
Before a state or county sells your property — for example at a tax sale, or through a court foreclosure — the Constitution requires notice that is reasonably likely to actually reach you. If the government knows your address, publishing a notice in the newspaper is not enough. If a mailed notice comes back unclaimed, the government must take extra reasonable steps to reach you, if it practicably can.
Read this rightThe automatic stay: filing bankruptcy pauses most collection
11 U.S.C. § 362(a)
When a bankruptcy case is filed, an "automatic stay" goes into effect right away. It generally stops lawsuits, foreclosure steps, and other collection against you and your property, without anyone needing to ask a judge. Creditors who knowingly violate it can owe damages.
Read this rightChapter 13: catch up on missed mortgage payments over time
11 U.S.C. § 1322(b)(5)
In a Chapter 13 bankruptcy, a plan can let you catch up on missed mortgage payments over a reasonable time (often 3 to 5 years) while you keep paying the regular monthly payment. For your main home, you can use this cure until the home is sold at a foreclosure sale held under state law.
Read this rightNo lies or misleading claims by debt collectors
15 U.S.C. § 1692e
A debt collector may not lie or mislead you. It cannot misstate how much you owe, pretend to be a lawyer or government official, or threaten something it cannot legally do or does not intend to do. It also cannot report credit information it knows is false, or fail to say a debt is disputed.
Read this right