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Rule 69 – Execution

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

(a) In general. Except as herein provided the procedure on execution shall be as heretofore. An execution may be issued upon a judgment in a civil action at any time after such judgment was entered or rendered during the period that such judgment would constitute a lien upon the real property of the judgment debtor. The fictitious writ of vice comes or v.c. is hereby abolished.
(aa) Proceedings supplementary to judgment or execution. In aid of the judgment or execution, the judgment creditor or the judgment creditor’s successor in interest when that interest appears of record, may take discovery by deposition, interrogatories and requests for production, in the manner provided in these Rules.
(b) Execution on judgments obtained by confession. Execution on judgments obtained by confession shall be in accordance with Rules 58.1, 58.2 and 58.3.
(c) Security for stay of execution in certain cases; form; effect.

In actions in which judgment shall be rendered by default for failure to file an affidavit of defense in a proceeding to enforce a mechanic’s lien or in a proceeding in which the complaint or other pleading contains a specific notation under Rule 3(b) or Rule 12(a) (3) requiring the defendant to answer any or all allegations of the complaint or other pleading by affidavit, for any default as provided in Rule 55 and in which the other party shall be entitled to a stay of execution upon the giving of security, such security shall be given within 20 days after the day of entering judgment and shall be signed by the surety or sureties, to be approved by the Prothonotary, shall be entered of record, shall have the force and effect of a judgment and shall be substantially in the following form:

“I ………., (or ‘we’ ……….if there be more than one) being approved by the Prothonotary, become bound unto the said ………., the plaintiff, for the payment of the above judgment, with interest and costs, at the expiration of six months from the date of said judgment.”

Security given pursuant to this Rule shall supersede any execution previously issued.

(d) Return of sheriff’s sales of real estate; when. Return of sheriff’s sales of real estate shall be made on the third Monday of the month succeeding the date of the sale and applications to set aside such sales shall be made on or before the first Thursday succeeding said return date, and all such sales not objected to on or before the first Thursday, shall on the first Friday, be confirmed as a matter of course.
(e) Rules for writs of possession; service. A rule for a writ of possession shall be served in the same manner as a summons is served under Rule 4(f) (1). If service in such manner cannot be made, the rule shall be served by affixing a copy to the main door of the dwelling or other chief building upon the premises at least 6 days before the return day of the rule.
(f) Sheriff; proceeds of sales. The sheriff or other officer executing any writ, order or process, under which real or personal property shall be sold, shall endorse upon such writ, order or process an itemized statement of the application of the proceeds received from such sale.
(g) Notice of sheriff’s sales of real estate. No sheriff’s sale of real estate shall be held unless at least seven (7) days before the sale the plaintiff or his counsel of record shall send by certified mail, return receipt requested to (1) holders of liens on the real estate which is the subject of such sale who have acquired such liens at least thirty (30) days prior to the sheriff’s sale; (2) to tenants holding or possessing a leasehold estate for years or at will in such real estate who have acquired such estate at least thirty (30) days prior to the sheriff’s sale; (3) to record owners acquiring title to such real estate (terre tenants) at least thirty (30) days prior to the sheriff’s sale; and (4) to persons having an equitable or legal interest of record, including an interest pursuant to a judicial sale or a statutory sale pursuant to { 8771 et seq. of Title 9 at least thirty (30) days prior to such sale a notice consisting of a Notice to Lien Holders, Tenants, Record Owners and Persons Having an Interest of Sheriff’s Sale of Real Estate substantially similar to Form 37 Appendix of Forms (Superior Court) and a copy of the advertisement of the sale posted in accordance with { 4973 of Title 10. The notice shall be addressed to holders of liens at the address which appears upon the recorded or filed instrument creating the lien or upon the record of the lien, or to the counsel of record for the holder of the lien, or if such addresses are not ascertainable from the public records, at the last known available or reasonably ascertainable address of the holders of such liens. The notice shall be addressed to tenants holding or possessing a leasehold estate for years or at will at the last known available or reasonably ascertainable address of such tenants, and in addition, the plaintiff or his counsel of record or a representative of the plaintiff or his counsel of record shall post such notice on the common entrance door or in a common area of any building or buildings on the real estate which is the subject of such action. The notice shall be addressed to terre tenants at the last known available or reasonably ascertainable address of such terre tenants. The notice shall be addressed to persons having an equitable or legal interest of record at the last known available or reasonably ascertainable address of such person, and in the case of persons acquiring an interest pursuant to a judicial sale or a statutory sale, at the address of such person given to the sheriff conducting the sale. No sheriff’s sale shall be held in such action unless the plaintiff or his counsel of record or a representative of the plaintiff or his counsel of record shall file with the Court and deliver to the sheriff conducting the sale a copy of proof of the mailing and posting of such notice which shall consist of the usual receipt given by the post office of mailing to the person mailing the certified article and a copy of the Notice to Lien Holders, Tenants, Record Owners and Persons Having an Interest mailed with such notice together with an affidavit made by plaintiff or his counsel of record specifying:

(i) The dates upon which the notice was mailed by certified mail;
(ii) That the copy of the Notice to Lien Holders, Tenants, Record Owners and Persons Having an Interest attached to the affidavit is a true and correct copy of the notice mailed by certified mail;
(iii) That the notice was posted on the common entrance door or in a common area of any building or buildings on the real estate which is the subject of the action and the date of such posting;
(iv) That the receipt obtained at the time of mailing by the person mailing the envelope containing the notice is the receipt filed with the affidavit; and
(v) If the identity or address of any lien holders, tenants, terre tenants and persons having an equitable or legal interest of record cannot be reasonably ascertained, a description of the reasonably diligent efforts that were made to ascertain such identity or address.

Del. R. Civ. P. Super. Ct. 69