More Categories

Rule 58.3 – Judgments by confession entered prior to July 9, 1971

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

The following procedure must be complied with prior to the issuance of the first writ of execution on a confessed judgment entered prior to July 9, 1971:

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

(1) A praecipe requesting the particular execution writ.
(2) A notice letter as required by 10 Del. Code ยง 2306(f) 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.
(b) 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 hereinafter provided in paragraphs (c) and (e) .
(c) The notice letter required by paragraph (a) (2) 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:

(1) 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.
(2) 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.
(3) That the judgment creditor alleges debtor waived debtor’s rights to notice and a hearing prior to the entry of judgment against debtor.
(4) That the entry of the court judgment has resulted in a lien against all of debtor’s real estate and the means whereby the sheriff, with the writ of execution which has been requested, 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.
(5) A writ of execution can be used to attach wages in appropriate cases.
(6) 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 judgment having been entered and/or to the issuance of the execution process. If debtor objects, the Court shall commence the procedure for a hearing. At said hearing, the judgment creditor will be required to prove that the debtor effectively waived debtor’s rights to notice and a hearing prior to the entry of judgment and the debtor may raise any appropriate defenses.
(7) That debtor is not required to appear but if debtor fails to do so, 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.
(8) That if the debtor has any questions about these matters debtor should consult a lawyer immediately.
(d) When service is effected by certified mail, the plaintiff shall file the return receipt with the Prothonotary.
(e) If the certified mail sent pursuant to paragraph (c) 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 (c) 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 which the debtor 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.
(f)

(1) Motion day shall be at the time designated for civil motions.
(2) 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.
(3) If the debtor appears to contest the judgment and/or the issuance of the execution process at the appropriate motion day:

(I) Debtor’s appearance shall be noted and a record made of debtor’s address where service can be made.
(II) In the case of a nonresident, the nonresident’s appearance shall be noted and a record made of the nonresident’s mailing address. The nonresident’s appearance shall constitute the appointment of the Prothonotary as the nonresident’s agent to receive service. The Prothonotary shall immediately forward to the debtor by certified mail, return receipt requested, at the address given by the debtor, all service received by the Prothonotary.
(III) Within 10 days after the motion day at which the judgment and/or execution is contested, the judgment creditor shall file a complaint alleging the effectiveness of the debtor’s waiver of debtor’s right to notice and a hearing prior to the entry of judgment against debtor, the existence of the debt, and such other matters as may be appropriate.
(IV) For resident debtors, service of the complaint shall be as provided for in Rule 4. In the case of nonresident debtors, service shall be made by filing the original complaint and one copy for each debtor with the Prothonotary.
(V) Each debtor shall respond as provided for by the Rules of this Court and thereafter the issues shall be joined on the question of the indebtedness and the question of whether there was an effective waiver of notice and an opportunity to be heard prior to judgment having been entered against the debtor.
(VI) If the debtor prevails on the issue of waiver and the issue of the entire indebtedness, the judgment shall be stricken by the Prothonotary.
(VII) If the debtor prevails on the issue of waiver and the judgment creditor prevails on the issue of the indebtedness or any part thereof, the original judgment shall be valid to the extent of the indebtedness determined by the Court and with respect to that indebtedness, the lien of the judgment shall relate back to the date of the original entry.
(VIII) If the judgment creditor prevails on the issue of waiver and on the issue of the indebtedness or any part thereof, the original judgment, to the extent of the indebtedness determined by the Court, shall be valid.
(IX) If the judgment creditor prevails on the issue of waiver and the debtor prevails on the issue of the entire indebtedness, the judgment shall be stricken or satisfied as the case may be.
(X) If the judgment creditor fails to appear at the appropriate motion day or fails to file a complaint as provided for herein, the judgment shall be stricken.
(XI) The Court shall make such orders as are appropriate including orders relating to the issuance of execution process and the assessment of costs.

Del. R. Civ. P. Super. Ct. 58.3