CHAPTER 169
FORMERLY
HOUSE BILL NO. 441
AS AMENDED BY HOUSE AMENDMENT NO. 1
AN ACT TO AMEND TITLE 9 OF THE DELAWARE CODE WITH REFERENCE TO THE ASSESSMENT AND COLLECTION OF SEWER SERVICE CHARGES IN NEW CASTLE COUNTY, BY ESTABLISHING THE MONITION METHOD OF COLLECTION, INCREASING THE PENALTIES FOR LATE PAYMENT AND PROVIDING FOR A MINIMUM DELINQUENCY AND SHORTENED WAITING PERIOD FOR INSTITUTION OF THE MONITION PROCEDURE.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section 1. Amend Title 9, Chapter 22 of the Delaware Code by designating the previously undesignated section of this chapter as "Subchapter 1. General Provisions" and adding a new subchapter therein to be known and designated as Subchapter II, which new subchapter shall read as follows:
"Subchapter II. Monition Method of Sale in New Castle County.
§2222. Monition Method Established.
In addition to all existing methods and authority for the collection of service charges due to the Department of Finance of New Castle County, the Monition method and authority is hereby established.
§2223. Affidavit; Judgment; Praecipe; Monition.
(a) The Director of Finance of New Castle County, or a county attorney, may file an affidavit in the office of the Prothonotary of the Superior Court in and for New Castle County.
The affidavit shall state that the person against whom the service charges sought to be collected were assessed is justly indebted to the Department of Finance of New Castle County for the amount of service charges due on the property against which the service charges were assessed. The description of the property, as the same appears upon the assessment roils of New Castle County, shall be a sufficient Identification and description of the property. Thereupon the Prothontary shall make a record of the same on a special Judgment docket of the Superior Court against the property mentioned or described in the affidavit which record shall consist of the following:
(1) The name of the person in whose name the assessment was made;
(2) The description of the property as the same shall appear upon the assessment rolls;
(3) The year or years for which the service charges are due and payable;
(4) The date of the filing of such affidavit;
(5) The amount of the Judgment, the same being the amount set forth in the affidavit.
Such Judgment shall be indexed in the Judgment docket itself under the hundred in which the property is located as the location appears upon the assessment rolls so prepared, and under the hundred by communities where the name of the community appears upon the assessment rolls so prepared, and by referring to the page in the Judgment docket whereon the record shall appear.
(b) Thereafter upon a praecipe for monition filed in the office of the Prothonotary by the Director of Finance for New Castle County, or a county attorney, a monition shall be issued by the Prothonotary to the Sheriff of New Castle County, which monition shall briefly state the amount of the Judgment for the service charges due and the years thereof, together with a brief description of the property upon which the service charges are a lien. A description of such property as same shall appear upon the assessment rolls so prepared shall he a sufficient description.
§2224. Form of Monition
The monition shall be in substantially the following form:
To all persons having or claiming to have any title, interest or lien upon the within described premises, take warning that unless the Judgment for the service charges stated herein is paid within 20 days after the date hereof or within such period of 20 days, or evidence of the payment of service charges herein claimed is filed in the office of the Prothonotary, which evidence shall be in the form of a receipted bill or duplicate thereof, bearing date prior to the filing of the lien in the office of the Prothonotary for New Castle County; or an affidavit is filed in the office of the Prothonotary denying the service charges In whole or in part pursuant to §2226; the Department of Finance may proceed to sell the property herein mentioned or described for the purpose of collecting the judgment for the service charges herein stated.
Name of person in Description of Year or Amount of
whose name property Property Years Judgment
§2225. Service of Monition; Notice to Interested Persons; Posting of Monition; Sheriff's Return; Alias or Mulles Monition.
(1) The monition, or a copy thereof, shall be served upon the person against whom the service charges sought to be collected were assessed. In addition, it shall be served upon all persons having en equitable or legal interest of record, including an interest pursuant to a judicial sale or a statutory sale. The monition shall be served as are summons under Superior Court Civil Rule 4 (f) (1) in addition to that service allowed or required by applicable statutes. In the event service as heretofore provided cannot be obtained, the following shall constitute legal and sufficient service.
(a) Upon Persons Whose Whereabouts Are Unknown. One return by the Sheriff of a monition without service together with publication of a notice once per week for two weeks in a newspaper of general circulation in the county in which the real estate is located and copies of the monition mailed to such persons at their lest known address by registered or certified mail shall constitute legal and sufficient service.
(a)
Upon Non-Residents. Service pursuant to Chapter 31, Title 10 of the Delaware Code or other applicable statute shall constitute legal and sufficient service upon non-residents.
(2) The lienholders whose real or equitable interests in the real estate may be adversely affected shall not be required to be served with the monition, but shall receive notice in writing. The notice shall be mailed by certified mail, return receipt requested, to the present or last known address of the person entitled to notification. The notice shall be mailed within 10 days after the monition issues from the Prothonotary. A copy of the notice, certified as a true and correct copy by the Director of Finance or a county attorney, together with a copy of the certified mail, return receipt or a copy of the unclaimed mail shall be filed with the Prothonotary and when filed shall be conclusive evidence of the receipt of notice.
(3) The monition, or a copy thereof, shall be posted by the Sheriff upon some prominent place or part of the property against which the judgment for the service charge is a lien.
(4) The Sheriff shall make due and proper return of his proceedings under the monition to the Prothonotary within 20 days after issuance of the monition.
(5) Alias or pluries monition may issue upon praecipe filed by the Department of Finance.
§2226. Affidavit of Defense; Time Limit.
The person against whom service charges sought to be collected were assessed, or any person having an equitable or legal Interest of record, including an interest pursuant to a judicial sale or a statutory sale, at any time before the expiration of 20 days after service of the monition, may file with the Prothonotary an affidavit denying the service charges due in whole or in part, and stating with specificity the reasons for disputing the service charge. Any service charge not specifically disputed in the affidavit of defense shall be paid in full at the time the affidavit is filed.
§2227. Trial.
Where an affidavit of defense has been filed pursuant to §2228, the Superior Court shall proceed to direct an issue to be tried by a jury at the bar of the Superior Court for ascertaining whether there is a just demand and the amount thereof, and their verdict or finding shall be final and conclusive.
§2228. Discharge of Property Upon Posting Bond.
If the person against whom service charges sought to be collected were assessed, or any person having an equitable or legal Interest of record, including an interest pursuant to a judicial sale or a statutory sale, gives to the Department of Finance a bond with sufficient surety to be approved by the court to pay any judgment recovered against him with costs and interest as set pursuant to §2210, the property against which the service charges were assessed shall be discharged from lien.
§2229. Issuance and Form of Writ of Venditioni Exponas.
At any time after the expiration of 20 days next following the return to the Sheriff upon the monition, unless before the expiration of the 20 days the judgment and cost on the judgment shall be paid or evidence of the payment of such service charges evidenced by a receipted bill or a duplicate thereof bearing date therefor prior to the filing of the lien for record in the office of the Prothonotary; or unless an affidavit is filed in the office of the Prothonotary denying the service charges in whole or inpart pursuant to §2226; upon application in writing by the Department of Finance, a writ of venditioni exponas shall issue out of the office of the Prothonotary directed to the Sheriff commanding the Sheriff to sell the property mentioned or described in the writ and make due return of his proceedings thereunder in the same manner as it is now applicable with respect to similar writs of venditioni exponas issued out of the Superior Court. The property shall be described in the writ under the description thereof as it appears on the assessment rolls and by metes and bounds where obtainable, but nothing herein contained shall be construed to invalidate a writ or a sale pursuant thereto containing only the description as it appears on the assessment rolls or a writ bearing only a description by metes and bounds.
The writ shall be substantially in the following form:
NEW CASTLE COUNTY, SS.
The State of Delaware.
TO THE SHERIFF OF NEW CASTLE COUNTY, GREETINGS:
WHEREAS, by a monition issued out of the Superior Court dated at Wilmington, the day
of A.D., 19 ..., IT WAS COMMANDED, that you should serve the person against whom service
charges sought to be collected were assessed, or any person having an equitable or legal Interest of record, including an interest pursuant to a judicial sale or a statutory sale, and, further, that you should post the said Monition or copy thereof upon the real estate therein mentioned and described, and make a return to the said Superior Court within ten days after said service and posting:
That on the day A.D., 19 , you returned that a copy of the said monition was
served upon the person against whom service charges sought to be collected were assessed, or
any person having an equitable or legal interest of record, including an interest pursuant to a
judicial sale or a statutory sale on the day of , A.D., 19 , and was posted on
the real estate therein mentioned and described on the day of A.D., 19
We therefor now command you to expose to public sale, the real estate mentioned and described in said Moniton as follows: and that you should cause to be made as well a
certain debt of Dollars ($ ) lawful money of the United States, which to the said
Department of Finance of New Castle County, is due and owing, as also the sum of Dollars
) lawful money as aforesaid, for its costs, which it has sustained by the detaining of that
debt, whereof the said was convicted as it appears of record and against which said
property is a lien:
And have you that money before the Judges of our Superior Court at Wilmington, on Monday the day of Next, to render to the said Department of Finance of New Castle County as aforesaid, for its debt and costs as aforesaid, and this writ:
WITNESSETH, the Honorable at Wilmington, the day of
A.D., 19
Prothonotary
Issued:
The description contained in such monition shall be a sufficient description of the real estate to be sold under such writ.
§2230. Title of Property Sold
Any real estate or interest therein sold under the provisions of this subchapter shall vest in the purchaser all the right, title and interest of the person in whose name the property was assessed, and/or all right, title and interest of the person or persons who are the owners thereof, and likewise freed and discharged from any Hens and encumbrances, dower or curtesy or statutory right, in the nature, of a dower or curtesy or statutory right, whether absolute or inchoate, in or to the real estate.
§2231. Petition by Purchasers for Deed of Conveyance
If the owner of the property or his legal representatives fail to redeem the property as provided in this subchapter, the purchaser of the property or his legal representative, successors or assigns may present a petition to the Superior Court setting forth the appropriate facts in conformity with this subchapter and pray that the Superior Court make an order directing the Sheriff, then in office, to execute acknowledge and deliver a deed conveying the title to the property to the petitioner; and thereupon the Superior Court shall have power, after a hearing upon the petition, to issue an order directing the Sheriff to execute, acknowledge and deliver a deed as prayed for in the petition. A description of the property as the same shall appear upon the assessment rolls, and a description by metes and bounds where obtainable shall be a sufficient description in any such deed.
§2232. Redemption by the Owner
The owner of any such real estate sold under the provisions of this subchapter or his legal representatives may redeem the same at any time within 60 days from the day the sale thereof is approved by the Court, by paying to the purchaser or his legal representatives, successors or assigns, the amount of the purchase price and 15 percent in addition thereto, together with all costs incurred in the cause; or if the purchaser or his legal representatives, successors or assigns refuse to receive the same, or do not reside or cannot be found within the County of New Castle, by paying the amount into the Court for the use of the purchaser, his legal representatives or assigns.
§2233. Petition by Owner After Redemption for Entry on Judgment Record
If the owner of any real estate sold under an order of sale or his legal representative redeems the real estate, he may present to the Superior Court a petition setting forth that fact and thereupon the Superior Court, after hearing and determining the facts set forth in the petition, shall have power to cause to be entered upon the record of the judgment, under which the real estate was sold, a memorandum that the real estate described in the proceedings upon which the judgment was entered has been redeemed. Thereafter the owner shall hold such redeemed real estate subject to the same liens and in the same order of priority as they existed at the time of the sale thereof, excepting so far as the liens have been discharged or reduced by the application of the proceeds by the Sheriff from the sale.
§2234. Regularity of Proceedings Under Venditioni Exponas
Upon the return of the proceedings under a writ of venditioni exponas, the Superior Court may inquire into the regularity of the proceedings thereunder, and either approve the sale or set it aside.
§2235. No Proceedings Unless Service Charge Is A Lien Upon Property; Construction of Term 'Superior Court'.
(a) No proceedings shall be brought under this subchapter unless the service charge sought to be collected hereunder shall at the time of the filing of the praecipe in the office of the Prothonotary be and constitute a lien upon the property against which the service charge was assessed or laid as established in §2211(b) of this Chapter.
(b) Whenever the Superior Court is mentiond in this subchapter, the same shall be held to embrace the Judges or any Judge thereof, and any act required or authorized to be done under this subchapter may be done by the Superior Court or any Judge thereof in vacation thereof, as well as in term time.
§2236. Fees and Costs
The fees and costs to be taxed in all proceedings under this subchapter where not otherwise provided for, shall be as follows:
The following fees shall be charged by the Prothonotary:
Filing Praecipe $ 1.10
Issuing monition and copy 2.75
Issuing alias or pluries 2.75
monition and copy
Writ of Venditioni exponas 2.25
Filing any petition in 1.00
Superior Court under this subchapter
Costs of paying money into 1.00
Superior Court
Costs of paying money out of 1.09
Superior Court for each check drawn
The following fees shall be charged by the Sheriff: Posting monition or copy thereof 75
Posting each alias or pluries .75
monition or copy thereof.
The following fees shall be charged by the Department of Finance of New Castle County:
For preparing description 10.00
by metes and bounds of liened property.
All other charges not covered by this section shall be the same as are provided by law."
Section 2. Amend Title 9, §2210 (a) of the Delaware Code by deleting the words "at the rate of 1 percent per month" and inserting in lieu thereof: "at a rate to be set by county government not to exceed 5 points above the Federal discount level."
Section 3. Amend Title 9, Chapter 22 of the Delaware Code by deleting §2211 (b) in its entirety and substituting in lieu thereof the following:
"(b) If any service charges in an amount greater than $250 remain unpaid at the end of l year after the due date the county government may cause to be brought proper proceedings for the enforcement of the lien and levy the service charges as an assessment with interest thereon accrued, and all costs thereon, upon the grounds and buildings with regard to which the service charges were made. Such grounds and buildings, or any part thereof, may be sold by the Sheriff of the County as is provided by law."
Section 4. If any provision of this Act, or its application to any person or circumstances is held invalid, the remainder of this Act, or the application of the provision to other persons or circumstances shall remain unaffected.
Section 5. This Act shall become effective on January 1, 1982.
Approved July 14, 1982.