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Rule 58.1 – Entry of judgment by confession and execution thereon

May 15, 2021 | Civil Procedure, Civil Procedure Superior Court, Delaware

Judgments by confession as authorized by 10 Del. Code, § 2306 shall be entered by the Prothonotary provided that before entering such judgment the following procedure is followed:

(a) The plaintiff shall lodge with the Prothonotary:

(1) A praecipe in the following form signed by the person exercising the warrant of attorney:

Please commence proceedings pursuant to Rule 58.1 to confess judgment on behalf of (Plaintiff) against (Debtor’s Name) of (Address) for $ (Real Debt) and $ ……….accrued interest to date together with interest thereon at ……….% per annum from …………attorney’s fees of $ ……….and costs of $ ……….
Date: ………………..
…………………………………………..
Person exercising warrant of attorney

(2) The original document authorizing confession of judgment together with a completely legible photocopy for the Prothonotary and each debtor against whom judgment is requested.
(3) In the case of a debtor who was a nonresident at the time of the execution of the document, the plaintiff shall also file the affidavit required by 10 Del. Code § 2306(c) together with a completely legible photocopy for the Prothonotary and each debtor named therein.
(4) A completed notice letter as required by 10 Del. Code § 2306(b) for each debtor against whom judgment is requested together with a copy of each notice letter for the Prothonotary and a preaddressed, stamped, certified mail, return receipt envelope for each debtor against whom judgment is requested. Each certified return receipt shall provide for its return after service to the person exercising the warrant of attorney and each envelope shall give the address of the person exercising the warrant as the return addressee.
(b) The Prothonotary shall return the original document authorizing the confession of judgment and, if applicable, the original affidavit required by 10 Del. Code § 2306(c) to the plaintiff presenting it and file the copy or copies as the authority for commencing the procedure set forth in this Rule.
(c) The Prothonotary shall record the time of lodging and docket the case in the judgment docket book together with a notation of the tentative nature of the entry. Subsequently, the Prothonotary shall make a notation of the mailing and publication dates as provided for in paragraphs (d) and (e) .
(d) The notice letter required by paragraph (a) (4) shall be mailed by the Prothonotary to each debtor by certified mail, return receipt requested, together with a copy of the instrument authorizing confession of judgment and, where applicable, a copy of the affidavit required by 10 Del. Code § 2306(c). The notice letter, on a form supplied by the Prothonotary, shall contain the following information:

(1) Plaintiff intends to obtain court judgment against debtor in the Superior Court of the State of Delaware based on the enclosed document for the following amounts:

Principal ______ ,
Accrued Interest ______ ,
Attorney’s Fees ______ ,
Plus Interest and Costs ______ ,
(2) That the plaintiff alleges debtor has waived debtor’s rights to notice and hearing prior to the entry of judgment against debtor.
(3) That the entry of such a court judgment will result in a lien against all debtor’s real estate and the means, in default of payment, whereby the sheriff can levy against debtor’s personal property and real estate and ultimately sell at public auction debtor’s personal property and real estate for credit against the debt.
(4) That in default of payment in appropriate cases, the sheriff may seize some portion of debtor’s wages for credit against the debt.
(5) That debtor may appear in Court, giving an address for said Court, on the second motion day following the date on which said notice letter was mailed, or any specified motion day subsequent thereto, at which time debtor may object to the entry of judgment and a hearing will be scheduled by the Court. At said hearing, the plaintiff will be required to prove that the debtor has effectively waived debtor’s rights to notice and a hearing prior to the entry of judgment.
(6) That the debtor is not required to appear but if debtor fails to do so, judgment will be entered by default.
(e) When service is effected by certified mail, the person exercising the warrant of attorney shall file the return receipt with the Prothonotary.
(f) If the certified mail sent pursuant to paragraph (d) is returned undelivered, the person exercising the warrant of attorney shall notify the Prothonotary accordingly in writing and service shall be accomplished by the Prothonotary by publication of the notice provided for in paragraph (a) (4) once per week for 2 weeks in a newspaper of general circulation in the county in which the instrument is to be recorded. If the residence of the debtor is other than the county in which the judgment is sought to be entered, then publication shall also be made once per week for 2 weeks in a newspaper of general circulation in the county in this State in which the debtor resides or is last known to have resided. The notice shall include the date of the motion day on which debtor must appear, which day shall be the second motion day following the last publication.
(g)(1) Motion day shall be at the time designated for civil motions.

(2) Judgment shall be entered against a debtor who fails to appear after service as provided for herein.
(3) If the debtor appears, a hearing date will be scheduled by the Court. At said hearing the burden shall be on the plaintiff to prove that debtor effectively waived debtor’s right to notice and a hearing prior to the entry of judgment against debtor. Costs are to be assessed against the plaintiff if plaintiff fails in the proof. Costs are to be assessed against the debtor if judgment is entered against debtor.
(4) When a judgment is obtained pursuant to this rule, a notation to that effect shall then be entered in the judgment docket records and indices and said judgment shall be final to the same extent as a judgment entered after trial. The lien of said judgment shall relate back to the time of its original docketing.
(h) The following procedure must be complied with prior to the issuance of the first writ of execution on a confessed judgment:

(1) The judgment creditor shall file the following with the Prothonotary:

(I) A praecipe requesting the particular execution writ.
(II) A notice letter as required by 10 Del. Code § 2306(j) for each debtor against whom execution is requested together with a copy of each notice letter for the Prothonotary and a preaddressed, stamped, certified mail, return receipt envelope for each debtor against whom execution is requested. Each certified return receipt shall provide for its return after service to the judgment creditor and each envelope shall give the address of the judgment creditor as the return addressee.
(2) The Prothonotary shall record the time of the filing of the praecipe. Subsequently, the Prothonotary shall make a notation in the execution docket of the mailing and publication dates as provided for in paragraph (h) (3) and (h) (5) .
(3) The notice letter required by paragraph (h)(1)(II) shall be mailed by the Prothonotary to each debtor by certified mail, return receipt requested. The notice letter, on a form supplied by the Prothonotary, shall contain the following information:

(I) Judgment creditor has requested the Superior Court to issue a writ of execution against debtor based on the confessed judgment entered on a certain date.
(II) A writ of execution can be used to attach wages in appropriate cases and seize debtor’s personal property and real estate and ultimately sell them for credit against the debt.
(III) That debtor may appear in Court, giving an address for said Court, on the second motion day following the date on which said notice letter was mailed, or any specified motion day subsequent thereto, at which time debtor may object to the issuance of the execution process and a hearing will be scheduled by the Court, at which hearing the debtor may raise any appropriate defenses.
(IV) That debtor is not required to appear but if debtor fails to do so, as a warning that the writ of execution sought by the judgment creditor and other subsequent writs will be issued whereby the sheriff could attach debtor’s wages in appropriate cases, or seize debtor’s personal property and real estate and ultimately sell them for credit against the debt.
(V) That the judgment creditor is claiming the debtor owes $ ………… accrued interest of $ ……….to the date of judgment plus interest at the legal rate from the date of judgment plus attorney’s fees of $ ………. plus costs.
(VI) That if the debtor has any questions about these matters debtor should consult a lawyer immediately.
(4) When service is effected by certified mail, the plaintiff shall file the return receipt with the Prothonotary.
(5) If the certified mail sent pursuant to paragraph (h)(3) is returned undelivered, the judgment creditor shall notify the Prothonotary accordingly in writing and service shall be accomplished by the Prothonotary by publication of the notice provided for in paragraph (h)(1)(II) once per week for 2 weeks in a newspaper of general circulation in the county in which execution is to occur. If the residence of the debtor is other than the county in which execution is sought, then publication shall also be made once per week for 2 weeks in a newspaper of general circulation in the county in this State in which the debtor resides or is last known to have resided. The notice shall include the date of the motion on which debtor must appear, which day shall be the second motion day following the last publication.
(6)(I) The writ of execution requested and any appropriate writ thereafter shall issue against a debtor who fails to appear after service as provided for herein.

(II) If the debtor appears, a hearing date will be scheduled by the Court.
(III) At the conclusion of the hearing, the Court shall make such orders as are appropriate including the assessment of costs.

Del. R. Civ. P. Super. Ct. 58.1