Delaware execution: a default judgment can be stayed six months, if the security is posted within twenty days

Delaware's ten-day automatic stay is short. But sitting further down Rule 69 is a remedy few states offer: on certain default judgments, a defendant can post security and stop execution for six months.

The security has to be in within twenty days of the judgment, and once given it "shall supersede any execution previously issued" — so it undoes a writ already out, not merely one to come.

The six-month security

Del. Super. Ct. Civ. R. 69(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:

The rule then prints the undertaking itself, binding the surety for payment of the judgment with interest and costs "at the expiration of six months from the date of said judgment", and closes:

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

Three points to weigh.

The twenty days are the whole opportunity. Miss them and this route closes, whatever the merits.

The surety takes on a judgment. The security is entered of record and carries the force and effect of a judgment, so this is not a formality for whoever signs it.

It buys time, not relief. At six months the obligation matures. The point is to create room to move under Rule 60(b) or Rule 59 — see setting aside a Delaware default judgment, where Rule 60(b) states no deadline of its own and Rule 59's are ten days and five.

The affidavit-of-defense default this provision addresses is explained in responding to a Delaware complaint.

The automatic ten days

Del. Super. Ct. Civ. R. 62(a):

Automatic stay. Except as stated herein, no execution shall issue upon a judgment nor shall proceedings be taken for its enforcement until the expiration of 10 days after its entry.

One sentence, and notably no carve-out. Almost every other state's Rule 62(a) excludes injunction and receivership judgments from the automatic stay. Delaware's does not mention them.

Rule 62(b) allows a discretionary stay "on such conditions for the security of the adverse party as are proper" pending disposition of a Rule 59 motion, a Rule 60 motion, or a Rule 50 motion for judgment in accordance with a motion for a directed verdict.

Stays on appeal

Delaware splits these by which court the appeal is going to.

Rule 62(c) — appeal from a lower court to the Superior Court:

Stay and supersedeas on appeal from lower court. In any civil action in which an appeal is taken from a lower court to the Superior Court the Superior Court may, upon motion of the appellant, stay execution on the judgment appealed from and may as a condition of such stay require the appellant to post a supersedeas bond with surety or a cash deposit. The amount of such supersedeas bond or cash deposit shall be sufficient to pay the amount of the judgment appealed from plus interest and court costs.

The stay is discretionary and requires a motion. Where security is required, the amount is fixed by reference to "the judgment appealed from plus interest and court costs", and a cash deposit is an express alternative to a bond.

Rule 62(d) — everything above that:

Supersedeas or stay pending appeal. Supersedeas, and stay pending appeal, and supersedeas, stay and cost bonds shall be governed by Article IV, Section 24 of the Constitution of the State of Delaware and by Supreme Court Rule 32.

The terms are not in the civil rules at all. They are in the Delaware Constitution and Supreme Court Rule 32 — the only state in this survey to put its appellate stay on a constitutional footing.

How long a judgment can be executed on

Rule 69(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.

The window is defined by the lien period, not by a number of days. So long as the judgment would be a lien on the debtor's real property, a writ may issue — and that remains true whether or not the debtor owns any.

Post-judgment discovery

Rule 69(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.

Delaware names the three tools: depositions, interrogatories and requests for production. That is wider than Montana and Hawaii, whose rules confine post-judgment discovery to depositions, and narrower on its face than a general reference to all discovery.

The right belongs to the creditor or a successor in interest when that interest appears of record.

Because it runs "in the manner provided in these Rules", the ordinary compel practice governs a refusal — including the certification the Prothonotary checks at the counter. See the Delaware motion to compel.

The sheriff's sale calendar

Rule 69(d) puts the whole objection window on named weekdays:

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.

The window to attack a sale is measured in days, and it opens only once the return is made. Confirmation on the Friday is automatic where nothing was filed by the Thursday, so there is no separate hearing at which to raise an objection for the first time.

Notice before a sale

Rule 69(g) requires the plaintiff or counsel to send notice by certified mail, return receipt requested, at least seven days before any sheriff's sale of real estate, to four classes of recipient — each of whom must have acquired their interest at least thirty days before the sale:

The notice must be substantially similar to Form 37 in the Appendix of Forms, with a copy of the advertisement of the sale. For tenants, notice must also be posted "on the common entrance door or in a common area" of any building on the property.

No sale may be held until proof is filed with the Court and delivered to the sheriff: the post office receipt, a copy of the notice, and an affidavit specifying five things — the mailing dates, that the attached notice is a true and correct copy, that the notice was posted and when, that the receipt filed is the one obtained at mailing, and, where an identity or address could not be ascertained, "a description of the reasonably diligent efforts that were made to ascertain such identity or address."

If you are a tenant in a property being sold, (2) and the posting requirement are the provisions that should have reached you.

Writs of possession

Rule 69(e): a rule for a writ of possession is served as a summons is served under Rule 4(f)(1). Where that cannot be done, it is 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."

Rule 69(f) requires the officer selling property to endorse on the writ "an itemized statement of the application of the proceeds received from such sale" — the document to ask for if you dispute how a sale was applied to your balance.

Rule 69(b) routes execution on judgments by confession to Rules 58.1, 58.2 and 58.3.

How Delaware compares

A short checklist

1. Count ten days from entry for the automatic stay.
2. If the judgment came by default, check Rule 69(c) immediately. The security is due within 20 days and buys six months.
3. Remember the security supersedes a writ already issued — it is worth doing even after execution has started.
4. A Rule 60(b) motion does not stop collection. Ask for a Rule 62(b) stay as well.
5. For an appeal above the Superior Court, work from Supreme Court Rule 32, not Rule 62.
6. After a sheriff's sale, diary the third Monday and the following Thursday. Confirmation on the Friday is automatic.
7. If you are a tenant or lienholder, look for the certified-mail notice and the posted notice — both are required.
8. Ask for the officer's itemized statement of proceeds under Rule 69(f).

Where these rules live

• Del. Super. Ct. Civ. R. 62 — Stays by trial court and on appeal
• Del. Super. Ct. Civ. R. 69 — Execution
• Del. Super. Ct. Civ. R. 60 — Relief from judgment or order
• Del. Super. Ct. Civ. R. 58.1 — Entry of judgment by confession and execution thereon

This page explains what the rules say. It isn't legal advice, and what property is exempt from execution is governed by statutes this site doesn't cover.