Local Rule 58.1.1: Entry of Judgment by Confession and Execution Thereon
D. Del. — Civil rule
RULE 58.1.1. Entry of Judgment by Confession and Execution Thereon.
(a) Judgment by confession as authorized by 10 Del. C. § 2306 shall be entered by the Clerk, provided that the following documents are filed:
(1) A notice directed to the Clerk that includes:
(A) A short and plain statement of the grounds upon which the Court's jurisdiction depends; and
(B) The following form signed by the person exercising the warrant of attorney:
"Please commence proceedings pursuant to D. Del. LR 58.1.1 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 _________ plus attorneys' fees of $_______ and costs of $_______. Date: _______ Person exercising warrant of attorney"
(2) The original document authorizing confession of judgment together with a photocopy for the Clerk.
(3) In the case of a debtor who was a nonresident at the time of the execution of the original document authorizing confession of judgment, plaintiff shall also file the affidavit required by 10 Del. C. § 2306(c), together with a photocopy, for the Clerk.
(4) A completed notice letter as required by 10 Del. C. § 2306(b) for each debtor against whom judgment is requested.
(b) The Clerk shall return the original document authorizing confession of judgment and, if applicable, the original affidavit required by 10 Del. C. § 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 Clerk shall docket a "tentative" judgment as of the date of filing. Subsequently, the Clerk shall make a notation on the docket of the mailing and publication dates provided for in paragraphs (d) and (f).
(d) The notice letter required by paragraph (a)(4) shall be mailed by the plaintiff 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. C. § 2306(c). An affidavit of mailing shall be filed by the plaintiff with the Clerk. The notice letter, on a form supplied by the Clerk, shall contain the following information:
(1) Plaintiff intends to obtain judgment against the debtor in the United States District Court for the District of Delaware based on the enclosed document for the following amounts:
Principal: Accrued Interest: Attorneys' Fees: Plus Interest and Costs:
(2) Plaintiff alleges the debtor has waived any rights to notice and hearing prior to the entry of judgment.
(3) The entry of such a judgment will result in a lien against all the debtor's real estate and the means in default of payment, whereby the Marshal can levy against and ultimately sell at public auction the debtor's personal property and real estate for credit against the debt.
(4) In default of payment in appropriate cases, the Marshal may seize some portion of the debtor's wages for credit against the debt.
(5) The debtor may file with the Court (giving an address for the Clerk) an objection to the entry of judgment by a date 2 weeks following the date on which the notice letter for the entry of judgment was mailed. When the objection is filed, a hearing will be scheduled by the Court. At the hearing, the plaintiff will be required to prove that the debtor has effectively waived any rights to notice and a hearing prior to the entry of judgment.
(6) No objection is required but, if no objection is made, 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 Clerk.
(f) If the certified mail sent pursuant to paragraph (d) is returned undelivered, the person exercising the warrant of attorney shall notify the Clerk accordingly in writing and shall accomplish service 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 Delaware in which the debtor resides or is last known to have resided. The notice shall include the date on which debtor must file objections to the entry of judgment, which date shall be at least 2 weeks following the last publication. An affidavit of publication shall be filed by the plaintiff with the Clerk.
(g) Judgment shall be entered against a debtor who fails to object after service as provided for herein.
(1) If the debtor objects, a hearing date will be scheduled by the Court. At the hearing, the burden shall be on the plaintiff to prove that the debtor effectively waived any right to notice and a hearing prior to the entry of judgment against the debtor. Costs are to be assessed against the plaintiff if the plaintiff fails to carry that burden. Costs are to be assessed against the debtor if judgment is entered against the debtor.
(2) When a judgment is obtained pursuant to this Rule, a notation to that effect shall then be entered in the judgment records 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 Clerk:
(A) A praecipe directed to the Clerk requesting the particular execution writ, together with a form of that writ obtained from the Superior Court of the State of Delaware.
(B) A notice letter as required by 10 Del. C. § 2306(j) for each debtor against whom execution is requested.
(2) The Clerk shall docket the praecipe. Subsequently, the Clerk shall make a notation on the 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)(B) shall be mailed by the plaintiff to each debtor by certified mail, return receipt requested. An affidavit of mailing shall be filed with the Clerk. The notice letter, on a form supplied by the Clerk, shall contain the following information:
(A) The judgment creditor has requested the Court to issue a writ of execution against the debtor based on the confessed judgment entered on a certain date.
(B) A writ of execution can be used to attach wages in appropriate cases and seize the debtor's personal property and real estate and ultimately sell them for credit against the debt.
(C) The debtor may file with the Court (giving an address for the Clerk) an objection to the issuance of the execution process by a date 2 weeks following the date on which the notice letter for the issuance of the execution process was mailed. When the objection is filed, a hearing will be scheduled by the Court. At said hearing, the debtor may raise any appropriate defenses.
(D) No objection is required but, if no objection is made, a warning that the writ of execution sought by the judgment creditor and other subsequent writs will be issued whereby the Marshal could attach the debtor's wages in appropriate cases, or seize the debtor's personal property and real estate and ultimately sell them for credit against the debt.
(E) The judgment creditor is claiming the debtor owes $______ plus accrued interest of $_____ to the date of judgment, plus interest at the legal rate from the date of judgment plus attorneys' fees of $______ plus costs.
(F) If the debtor has any questions about these matters, an attorney should be consulted immediately.
(4) When service is effected by certified mail, the plaintiff shall file the return receipt with the Clerk.
(5) If the certified mail sent pursuant to paragraph (h)(3) is returned undelivered, the judgment creditor shall notify the Clerk accordingly in writing and shall accomplish service by publication of the notice provided for in paragraph (h)(1)B 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 Delaware in which the debtor resides or is last known to have resided. The notice shall include the date by which debtor must file objections to the issuance of the execution process, which date shall be at least 2 weeks following the last publication. An affidavit of publication shall be filed by the plaintiff with the Clerk.
(6) The writ of execution requested and any appropriate writ thereafter shall issue against a debtor who fails to object after service as provided for herein.
(7) If the debtor objects, a hearing date will be scheduled by the Court. At the conclusion of the hearing, the Court shall make such orders as are appropriate, including for the assessment of costs.