Deed of Trust (Mortgage Alternative) - Delaware

DEED OF TRUST

(Mortgage Equivalent - Delaware)

State of Delaware

WHEN RECORDED RETURN TO:
[NAME]
[ADDRESS]
[CITY, STATE ZIP]

Date: [DATE]
Instrument Number: _________________ (Recorder's Use)
Property Address: [PROPERTY ADDRESS, CITY, DE ZIP]
Parcel ID: [PARCEL ID]

IMPORTANT NOTICE - JUDICIAL FORECLOSURE STATE

DELAWARE IS A JUDICIAL FORECLOSURE STATE. Foreclosure of a mortgage requires a court action. A borrower may contest a scire facias foreclosure by asserting payment, satisfaction, or a plea in avoidance. Delaware offers an Automatic Residential Mortgage Foreclosure Mediation Program for eligible homeowners.

DEED OF TRUST

THIS DEED OF TRUST is made this [DAY] day of [MONTH], [YEAR], by and among:

GRANTOR (Borrower):
[GRANTOR NAME(S)]
[ADDRESS]
[CITY, STATE ZIP]

TRUSTEE:
[TRUSTEE NAME]
[ADDRESS]
[CITY, STATE ZIP]

BENEFICIARY (Lender):
[BENEFICIARY/LENDER NAME]
[ADDRESS]
[CITY, STATE ZIP]

RECITALS AND GRANT

WHEREAS, Grantor is indebted to Beneficiary in the principal sum of [PRINCIPAL AMOUNT] DOLLARS ($[AMOUNT]), as evidenced by a Promissory Note of even date herewith (the "Note");

NOW, THEREFORE, Grantor does hereby grant, bargain, sell, and convey unto Trustee, in trust, the following described real property situated in [COUNTY] County, Delaware:

SEE EXHIBIT A ATTACHED HERETO AND INCORPORATED HEREIN BY REFERENCE

Property Address: [PROPERTY ADDRESS], [CITY], Delaware [ZIP CODE]

TOGETHER WITH all buildings, improvements, and fixtures now or hereafter placed thereon; all easements, rights, appurtenances, rents, royalties, and profits.

ARTICLE I - OBLIGATIONS SECURED

This Deed of Trust secures to Beneficiary:
(a) The repayment of the debt evidenced by the Note, with interest, and all renewals, extensions, and modifications;
(b) The payment of all other sums, with interest, advanced under this Deed of Trust;
(c) The performance of Grantor's covenants and agreements under this Deed of Trust and the Note.

ARTICLE II - COVENANTS OF GRANTOR

Grantor covenants and agrees as follows:

2.1 Payment. Grantor shall pay when due the principal and interest on the debt evidenced by the Note and all other sums secured hereby.

2.2 Insurance. Grantor shall keep the improvements insured against loss by fire and other hazards, with Beneficiary named as loss payee.

2.3 Taxes and Assessments. Grantor shall pay before delinquency all taxes, assessments, and charges against the Trust Property.

2.4 Maintenance. Grantor shall maintain the Trust Property in good condition and repair and shall not commit or permit waste.

2.5 Defense of Title. Grantor shall defend title against all claims.

2.6 Compliance with Laws. Grantor shall comply with all laws, ordinances, and regulations affecting the Trust Property.

ARTICLE III - DEFAULT AND FORECLOSURE

3.1 Events of Default. The following shall constitute Events of Default:
(a) Failure to make any payment when due under the Note or this Deed of Trust;
(b) Breach of any covenant or agreement herein;
(c) Material misrepresentation by Grantor;
(d) Transfer of the Trust Property without Beneficiary's prior written consent;
(e) Bankruptcy or insolvency of Grantor.

3.2 Judicial Foreclosure Required. Delaware requires judicial foreclosure for all mortgages and deeds of trust. Beneficiary must file a lawsuit in court.

3.3 Notice of Intent to Foreclose (10 Del. C. § 5062B). For owner-occupied 1- to 4-family primary residential property, a mortgage foreclosure action generally may not be filed until forty-five (45) days after the statutory notice is sent following default. Section 5062B(a)(2) exempts abandoned property, qualifying seller-held mortgages, voluntary surrender, and certain continuing defaults after a bankruptcy stay ends or the case is dismissed. When notice is required, send it to all borrowers by both certified and first-class mail and use the full bilingual form and contents required by § 5062B(a)(3).

3.4 Filing and Service. Beneficiary files a complaint and serves Grantor with summons. Grantor has twenty (20) days to respond. A separate notice is posted on the property.

3.5 Mediation Program (10 Del. C. § 5062C). Along with the summons and complaint, the lender must give eligible homeowners a notice about Delaware's Automatic Residential Mortgage Foreclosure Mediation Program for owner-occupied, 1- to 4-family primary residential properties.

3.6 Loss Mitigation Affidavit (10 Del. C. § 5062A). For owner-occupied 1- to 4-family primary residential property, the foreclosing plaintiff must file an affidavit before foreclosure judgment asserting that the defendant has been provided opportunity to apply for federal loss mitigation programs.

3.7 Notice of Sale (10 Del. C. § 4973(a); Del. Super. Ct. Civ. R. 69(g)). Before the sheriff's sale:
(a) Advertise the sale for two weeks in the newspapers specified by § 4973(a);
(b) Post advertisements in the ten public places specified by § 4973(a) at least ten days before the sale;
(c) At least ten days before the sale, deliver a like advertisement to the defendant or leave it at the defendant's usual place of abode if known in the county; if the defendant does not reside in the county, follow § 4973(a)'s alternative notice procedure; and
(d) At least seven days before the sale, have the plaintiff or counsel send the Rule 69(g) notice and a copy of the posted advertisement by certified mail, return receipt requested, to qualifying record owners and the other persons listed in that rule.

3.8 Redemption (10 Del. C. §§ 5065, 5066). Grantor may redeem the property at any time before the court confirms the foreclosure sale. There is no right of redemption after confirmation.

3.9 Deficiency. If the sale proceeds do not pay off the existing mortgage plus costs, and the foreclosure lawsuit did not sue on both the mortgage and note, the lender must file a separate lawsuit to obtain a deficiency judgment.

ARTICLE IV - RELEASE

4.1 Satisfaction. Upon payment of all sums secured hereby, Beneficiary shall execute a Satisfaction of Mortgage suitable for recording.

4.2 Recording. The satisfaction shall be recorded with the Recorder of Deeds in the county where the Trust Property is located.

ARTICLE V - RECORDING REQUIREMENTS

5.1 Recording. This Deed of Trust shall be recorded with the Recorder of Deeds of [COUNTY] County, Delaware.

5.2 Recording Costs. The parties shall pay applicable recording fees for this security instrument as agreed in the loan documents. A separate deed conveying title may trigger Delaware realty transfer tax; determine its treatment under 30 Del. C. §§ 5401–5402. Section 5401(1)c. excludes mortgages from the transfer-tax definition of a taxable document.

ARTICLE VI - MISCELLANEOUS PROVISIONS

6.1 Governing Law. This Deed of Trust shall be governed by Delaware law.

6.2 Successors and Assigns. This Deed of Trust binds and benefits the heirs, executors, administrators, successors, and assigns of the parties.

6.3 Severability. If any provision is held invalid, all other provisions remain in full force.

6.4 Notices. All notices shall be in writing and sent to the addresses set forth above.

6.5 Entire Agreement. This Deed of Trust and the Note constitute the entire agreement of the parties.

ARTICLE VII - RIDERS AND ADDENDA

The following riders are attached hereto and incorporated herein:

☐ Adjustable Rate Rider
☐ Condominium Rider
☐ Planned Unit Development Rider
☐ Second Home Rider
☐ 1-4 Family Rider
☐ Other: [SPECIFY]

SIGNATURE PAGE

IN WITNESS WHEREOF, Grantor has executed this Deed of Trust as of the date first written above.

GRANTOR(S):

_______________________________
[GRANTOR NAME]
Date: _________________________

_______________________________
[GRANTOR NAME]
Date: _________________________

ACKNOWLEDGMENT

STATE OF DELAWARE
COUNTY OF [COUNTY]

BE IT REMEMBERED, that on this _____ day of ______________, 20___, personally came before me, the subscriber, a Notary Public for the State of Delaware, [GRANTOR NAME(S)], known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the foregoing Deed of Trust, and acknowledged the same to be his/her/their act and deed.

GIVEN under my hand and seal of office the day and year aforesaid.

_______________________________
Notary Public
My Commission Expires: ___________

[NOTARY SEAL]

EXHIBIT A

LEGAL DESCRIPTION

The land referred to herein is situated in [COUNTY] County, State of Delaware, and is described as follows:

[INSERT COMPLETE LEGAL DESCRIPTION]

Parcel ID: [NUMBER]

This document prepared by:
[PREPARER NAME]
[ADDRESS]
[PHONE]
[EMAIL]