Delaware Docket Newsletter Spring 2011

IMPORTANT CHANGES TO SUPERIOR COURTS RESIDENTIAL MORTGAGE FORECLOSURE MEDIATION PROGRAM

On September 21, 2011, Governor Markell signed House Substitute 1 for House Bill 58 which established the Automatic Residential Mortgage Foreclosure Mediation Program (the “Mediation Program”). The Superior Court first established a Mortgage Foreclosure Program pursuant to Administrative Directive 2009‐3. That original Mortgage Foreclosure Program was modified by Administrative Directive 2011‐2, which was subsequently expanded by the passage of House Substitute 1 for House Bill 58. The Mediation Program is set forth in Administrative Directive 2012‐2. Representatives of the Attorney General’s Office, attorneys who regularly practice in the foreclosure area, housing counsels, and representatives of the Superior Court met numerous times over the course of several months to develop a draft Administrative Directive which was modeled after successful programs in other states and jurisdictions, including Philadelphia and the state of Connecticut.

The goal of the Mediation Program is to encourage the parties to a foreclosure action to meet and consider a possible resolution which may permit the homeowner to continue to own their home. Unlike the previous mortgage foreclosure programs which were voluntary, participation in the Mediation Program is mandatory. When a foreclosure complaint is filed, the lenders and borrowers are now required to meet and confer regarding the payment plan and other options before a foreclosure can proceed. The Mediation Program is applicable to most residential mortgage foreclosure actions filed from January 19, 2012 through January 18, 2014.

Many of the functions necessary to implement the Mediation Program will be shared through the cooperation of the Delaware Department of Justice, the Delaware State Housing Authority and Delaware Volunteer Legal Services. As program administrator, the Delaware Department of Justice is responsible for scheduling mediation conferences, sending mediation notices, ensuring the collection, maintenance and disbursement of mediation fees, and compiling program statistics. The Delaware State Housing Authority will take on certain financial tasks, such as disbursing funds to pay for operating costs, housing counselors, and other administrative expenses. The Delaware Volunteer Legal Services is responsible for mediation coordination.

On March 23, 2012, President Judge James T. Vaughn, Jr. presented during The Vincent A. Bifferato Superior Court Trial Practice Forum’s expanded seminar “The New Process for Residential Foreclosures in Delaware.” This seminar was very well attended and provided an overview of the new law, as well as the Superior Court’s, the Attorney General’s, and the Housing Counselor’s perspective on the new mediation process.