Delaware judgment by confession: two chances to appear, and the creditor has to prove you waived your rights
Delaware procedure · Last verified August 17, 2026
A warrant of attorney in a loan document lets a creditor take judgment against you without suing. Most states that still permit it give the debtor nothing until the judgment already exists.
Delaware inserts two gates instead, and both work the same way. Before judgment is entered, and again before the first writ of execution issues, the Prothonotary must mail you a notice by certified mail telling you which motion day you may appear on to object.
At the first hearing the burden is not yours. "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" — and if the plaintiff fails, costs are assessed against the plaintiff.
Gate one: before judgment is entered
Del. Super. Ct. Civ. R. 58.1 opens by making the whole procedure a precondition:
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:
Rule 58.1(a) lists what the creditor must lodge: a praecipe in the form the rule prints, signed by the person exercising the warrant of attorney; the original document authorizing confession with legible photocopies for the Prothonotary and each debtor; where the debtor was a nonresident when the document was executed, the affidavit required by 10 Del. Code § 2306(c); and a completed notice letter for each debtor, with "a preaddressed, stamped, certified mail, return receipt envelope" for each.
The creditor supplies the envelope, but the Prothonotary does the mailing — under 58.1(d), by certified mail, return receipt requested, with a copy of the instrument authorizing confession.
What the notice has to tell you
Rule 58.1(d) prescribes the contents, and the list is unusually frank about consequences:
| The notice must say | |
|---|---|
| (1) | the amounts sought — principal, accrued interest, attorney's fees, plus interest and costs |
| (2) | that the plaintiff alleges you waived your rights to notice and hearing before entry |
| (3) | that judgment will be a lien against all your real estate, and the means by which the sheriff can levy and sell at public auction |
| (4) | that in default of payment the sheriff may seize some portion of your wages |
| (5) | that you may appear on the second motion day after mailing, or any later specified motion day, to object — and that at the hearing the plaintiff must prove you effectively waived those rights |
| (6) | that you need not appear, but judgment will be entered by default if you do not |
Limb (2) is worth pausing on. The notice does not assert that you waived anything; it states that the plaintiff alleges you did. That framing matches where the burden falls at the hearing.
Rule 58.1(c) requires the Prothonotary to docket the case "together with a notation of the tentative nature of the entry", so the docket itself records that the judgment is not yet real.
The motion day, and what happens there
Rule 58.1(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.
| When | the second motion day after the notice was mailed, or a later one specified |
| If you do not appear | judgment is entered |
| If you appear | a hearing is scheduled |
| Burden at the hearing | on the plaintiff, to prove effective waiver |
| Costs | against the plaintiff if it fails; against you if judgment is entered |
Appearing on the motion day is not the hearing. It is what causes a hearing to be scheduled. The rule asks very little of you at that stage — appearance alone shifts the matter to a contested track where the creditor has to prove its case.
Rule 58.1(g)(4): once judgment is obtained this way, it is "final to the same extent as a judgment entered after trial", and "The lien of said judgment shall relate back to the time of its original docketing." The tentative entry becomes fully effective as of its original date, not the date of the hearing.
If the mail comes back
Rule 58.1(f) covers undelivered certified mail. The person exercising the warrant must notify the Prothonotary in writing, and service is then made by publication — "once per week for 2 weeks in a newspaper of general circulation in the county in which the instrument is to be recorded."
Where you live in a different county from the one where judgment is sought, publication must also run once a week for two weeks in a paper of general circulation in your county, or the county where you were last known to reside.
The notice must state the motion day, "which day shall be the second motion day following the last publication".
So a debtor who has moved may never receive the letter, and the deadline still runs from a newspaper notice.
Gate two: before the first writ of execution
This is the part with no real counterpart elsewhere. A confessed judgment in Delaware does not carry an automatic right to execute.
Rule 58.1(h) opens: "The following procedure must be complied with prior to the issuance of the first writ of execution on a confessed judgment."
The creditor files a praecipe for the writ and a second notice letter under 10 Del. Code § 2306(j), again with a stamped certified-mail return-receipt envelope for each debtor, and again the Prothonotary mails it.
Rule 58.1(h)(3) prescribes what that second notice says:
| (I) | the creditor has requested a writ of execution on the confessed judgment |
| (II) | a writ can attach wages in appropriate cases and seize personal property and real estate for sale |
| (III) | you may appear on the second motion day after mailing to object, and at the hearing may raise any appropriate defenses |
| (IV) | you need not appear, but if you do not, this writ and subsequent writs will issue |
| (V) | the amounts claimed — principal, accrued interest to judgment, interest at the legal rate from judgment, attorney's fees, costs |
| (VI) | that if you have any questions you should consult a lawyer immediately |
Limb (III) is broader than the first gate. At the pre-judgment hearing the question is confined to whether you effectively waived your rights. At the execution hearing you "may raise any appropriate defenses".
Rule 58.1(h)(6) sets the outcomes: the writ "and any appropriate writ thereafter shall issue against a debtor who fails to appear"; if you appear, a hearing is scheduled, and at its conclusion "the Court shall make such orders as are appropriate including the assessment of costs."
Note the reach of a non-appearance. It clears not only the writ applied for but "any appropriate writ thereafter" — so the second gate is a single opportunity, not one that repeats for each writ.
Undelivered mail is handled the same way as at gate one: notice by publication once a week for two weeks, in the county where execution is to occur and, if different, where you reside or last resided, with the motion day set as the second one after the last publication.
Confession in open court
Rule 58.2 covers the other route, where you appear and consent in person.
A judgment by confession may be entered in open court by the Superior Court either for money due or to become due, or to secure the obligee against a money contingent liability, or both, on the application by the obligee or assignee of a bond, note or other obligation containing a warrant for an attorney-at-law or other person to confess judgment.
The plaintiff appears together with the defendant obligor on a motion day, "A court reporter shall make a record of the proceedings", and the plaintiff must prove two things:
(I) The genuineness of the obligation, the signature of the defendant obligor against whom judgment is sought and the identity of the defendant obligor appearing in the Court.
(II) The defendant obligor has effectively waived obligor's constitutional rights concerning the entry of judgment and the right to execution thereon.
Waiver has to be proved here too, and this time it expressly covers both the entry of judgment and the right to execution — which is why Rule 58.2(c) still sends execution back through the second gate: "Execution on judgments confessed hereunder shall be as provided for in Rule 58.1(h)."
Rule 58.3 governs judgments by confession entered before July 9, 1971, which run on their own procedure.
Where this connects
Once a writ does issue, the enforcement machinery is the ordinary one — a ten-day automatic stay, the sheriff's-sale calendar, and the six-month security available on some default judgments. See enforcing a Delaware money judgment, where Rule 69(b) routes execution on confessed judgments back to Rules 58.1, 58.2 and 58.3.
To attack the judgment itself, see setting aside a Delaware default judgment — Rule 60(b) states no deadline of its own, and a judgment entered under 58.1(g)(2) for failure to appear is a judgment by default.
How Delaware compares
| Delaware | Pennsylvania | Federal | |
|---|---|---|---|
| Notice before judgment is entered | yes, certified mail | no | — |
| Docket marked tentative meanwhile | yes | no | — |
| Burden to prove waiver | on the creditor | on the debtor to open | — |
| Costs if the creditor fails | against the creditor | — | — |
| Second notice before the first writ | yes | no | — |
| Defenses available at that stage | any appropriate defense | — | — |
| Substitute service if mail fails | publication, 2 weeks | — | — |
| Lien date | relates back to original docketing | — | — |
A short checklist
- Read the notice letter for the motion day. It is the second motion day after mailing, or a later one the notice specifies.
- Appear. Appearing does not require you to argue anything — it causes a hearing to be scheduled.
- Remember the creditor carries the burden at the pre-judgment hearing, and pays costs if it fails.
- Watch for the second notice before the first writ of execution. It is a separate opportunity.
- Raise everything at the execution hearing — that gate allows any appropriate defense.
- Do not skip the execution gate on the assumption it repeats. Non-appearance clears subsequent writs too.
- If you have moved, check for publication. Notice can be completed by newspaper if the certified mail is returned.
- Check the amounts on both notices against what the instrument allows.
Where these rules live
- Del. Super. Ct. Civ. R. 58.1 — Entry of judgment by confession and execution thereon
- Del. Super. Ct. Civ. R. 58.2 — Entry of judgment by confession in open court
- Del. Super. Ct. Civ. R. 58.3 — Judgments by confession entered prior to July 9, 1971
- Del. Super. Ct. Civ. R. 69 — Execution
This page explains what the rules say. It isn't legal advice, and the statute behind this procedure — 10 Del. Code § 2306 — carries requirements this site doesn't cover.