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Delaware Code Title 10. Courts and Judicial Procedure § 3901. Affidavits of defense;  judgments by default on written instruments;  opening judgments

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(a)?In all actions upon bills, notes, bonds or other instruments of writing for the payment of money or for the recovery of book accounts, on foreign judgments, and in all actions of scire facias on recognizances, judgments or mortgages, the plaintiff may specifically require the defendant or defendants to answer any or all allegations of the complaint by an affidavit setting forth the specific nature and character of any defense and the factual basis therefor, by the specific notation upon the face of the complaint that those allegations must be answered by affidavits.

(b)?If defense is to a part only of the cause of action, the defendant, or if there be more than 1, any 1 or more of them shall, in such affidavit, specify the sum which the defendant or they admits or admit to be due, and judgment shall be entered for the plaintiff at the plaintiff's election for the sum acknowledged to be due.

(c)?A defendant need not file an affidavit to answer any allegation, whether or not designated pursuant to this section, unless the plaintiff or plaintiffs files with the complaint a copy of the instrument of writing, book entries or claims, or, in case of a scire facias, a certified abstract or transcript of the judgment, mortgage or recognizance, and in case of a suit on a foreign judgment a copy of the judgment, certified to under 28 U.S.C. ??1738.

(d)?If the plaintiff or plaintiffs complies with this section, and the defendant or defendants fails to respond to the designated allegations by affidavit filed with the answer or answers, the designated allegations will be deemed admitted, and default judgment may be entered thereon, in the discretion of the court and upon motion by the plaintiff.

(e)?Upon any judgment under this section a stay of execution for 6 months shall be granted on security being given by the defendant for the payment of such judgment, with interest and costs, in such form as by the rules of the court are prescribed. ?In case of a suit by or against a corporation, the affidavit by the cashier or treasurer shall be sufficient in this section. ?In case of security being given as aforesaid by the defendant, the entry of such security shall have all the force and effect of a judgment, and at the expiration of the stay given, the judgment, with costs, may be collected by execution process sued out jointly or severally against the principal and surety. ?Any affidavit authorized under this chapter may be taken out of this State before any judge of any court of record, the mayor or chief magistrate of any city or borough, a Commissioner of Deeds for this State, or any consul or vice-consul of the United States, or before any notary public of any state or territory within the United States or of the District of Columbia. ?The affidavit shall be certified under the hand and official seal, or seal of the court, city or borough, as the case may be, of the person taking the same.

(f)?Upon sufficient cause shown, the court may open such judgment and let the defendant into a trial, security being first given, in manner and form as provided in subsection (e) of this section, for the payment of such judgment, with interest and costs, as the plaintiff may recover in such action.

(g)?In actions commenced by a capias ad respondendum, if special bail is not given at the term to which the process is returnable, the plaintiff may, at the plaintiff's election, on the last day of the term, cause a common appearance to be entered for the defendant, and move for judgment, under this section, in like manner as if special bail had been given.

(h)?The amount of a judgment by virtue of this section shall be ascertained under the order of the court, and shall not exceed the sum demanded in the complaint filed by the plaintiff.

(i)?The court, in its discretion, may extend the time in which the defendant or defendants has to answer or otherwise do anything authorized by its Rules of Civil Procedure.

Cite this article: - Delaware Code Title 10. Courts and Judicial Procedure § 3901. Affidavits of defense;  judgments by default on written instruments;  opening judgments - last updated January 01, 2019 |

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