Bernadeau v. Clarke
| Decision Date | 30 July 2019 |
| Docket Number | No. 137,137 |
| Parties | JIMENEZ BERNADEAU v. JAMES E. CLARKE, ET AL. |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Prince George's County
UNREPORTED
Fader, C.J. Gould, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.
Opinion by Alpert, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Jimenez Bernadeau, appellant, following a foreclosure sale of property he owned, filed exceptions with the Circuit Court for Prince George's County arguing that the sale should be vacated. After the circuit court overruled appellant's exceptions, he appealed, presenting the following questions for our review, which we have rephrased:
For the following reasons, we shall affirm.
In 2007, appellant executed an adjustable rate promissory note (the "Note") in favor of Home Loan Center, Inc., dba LendingTree Loans ("Lending Tree") in the amount of $461,000 and secured by a deed of trust on property located at 11019 Old York Road, Bowie, Maryland 20721. The Note was endorsed by a corporate representative of Lending Tree "to the order of JP Morgan Chase Bank[.]" The Note was then endorsed by a corporate representative of JP Morgan Chase Bank in blank "[w]ithout [r]ecourse."
In August 2014, appellant flew to Haiti because of a family emergency, purportedly leaving an individual in charge of his finances, including the timely payment of his mortgage. The mortgage payments, however, were not made.
On March 9, 2015, The Bank of New York Mellon Trust Company NA ("The Bank of New York"), as trustee for Chase Mortgage Finance Trust Multi-Class Mortgage Pass-Through Certificates, Series 2007-S5 ("Chase Mortgage"), appointed James E. Clarke, Renee Dyson, Brian Thomas, Erin M. Cohen, High J. Green, and Patrick M.A. Decker, as substitute trustees. Less than a month later, on April 1, 2015, the substitute trustees initiated foreclosure proceedings against appellant in the Circuit Court for Prince George's County.
On April 7 and 9, 2015, the substitute trustees attempted to personally serve appellant with notice of the foreclosure action, but no one answered the front door of the property. Additionally, on April 9, foreclosure documents1 were posted on the front door of the property and, on that same date, the documents were sent by first-class and certified mail to the property address. The documents sent by certified mail were returned to the substitute trustees as undeliverable. On July 21, 2016, the property was sold at a foreclosure sale to The Bank of New York, as trustee for Chase Mortgage for $377,910.
About six weeks later, in early September 2016, appellant returned to the United States and apparently learned for the first time of the foreclosure action. On September 8, 2016, appellant filed a request for production of the original loan documents, and a few days later, he filed a request for postponement of foreclosure proceedings so he could retain legal counsel. The appellees opposed appellant's motions. On October 18, 2016, thecircuit court treated appellant's motions as exceptions to the foreclosure sale and overruled them. Appellant then filed a motion setting forth exceptions to the foreclosure action, specifically arguing that he never received notice of the foreclosure action. Appellees opposed the motion. The circuit court overruled appellant's exceptions, finding service adequate.
On March 1, 2018, the ratification order of the foreclosure sale was docketed in the circuit court. Appellant appeals from the ratification order.
The standard of review of foreclosure proceedings is well-settled.
In ruling on exceptions to a foreclosure sale and whether to ratify the sale, trial courts may consider both questions of fact and law. See S. Md. Oil, Inc. v. Kaminetz, 260 Md. 443, 451 (1971) (). In reviewing a trial court's finding of fact, we do "not substitute our judgment for that of the lower court unless it was clearly erroneous" and give due consideration to the trial court's "opportunity to observe the demeanor of the witnesses, to judge their credibility and to pass upon the weight to be given their testimony." Young v. Young, 37 Md. App. 211, 220 (1977). Questions of law decided by the trial court are subject to a de novo standard of review. See Liddy v. Lamone, 398 Md. 233, 246-47 (2007).
Jones v. Rosenberg, 178 Md. App. 54, 68, cert. denied, 405 Md. 64 (2008). "'[T]here is a presumption that the sale was fairly made'" and "'the burden is upon one attacking the sale to prove the contrary.'" Hood v. Driscoll, 227 Md. App. 689, 696-97 (2016) (quoting Burson v. Capps, 440 Md. 328, 342-43 (2014)).
Appellant argues that the circuit court erred in overruling his exceptions to the foreclosure sale because his due process rights were violated. Specifically, he argues that the service rendered was defective because he was out of the country and did not know about the foreclosure proceedings. He argues, without any authority, that the notice requirements of Md. Rule 2-121(b), requiring "something more" than the service rendered here, are applicable in his situation. Citing Griffin v. Bierman, 403 Md. 186 (2008), appellees disagree.
Maryland's notice requirements prior to the sale of property in foreclosure actions can be found in Md. Code Ann., Real Property ("Real Prop."), § 7-105.1 and Md. Rule 14-209, governing notice of a foreclosure action. Real Prop. § 7-105.1(h)(1)(f) provides that the foreclosure complaint shall be served on the mortgagor by personal process. When that effort is unsuccessful, the statute provides:
Real Prop. § 7-105.1(h)(5). Similarly, Md. Rule 14-209(a) provides that If personal service is unsuccessful, the Rule provides:
Service on Borrower and Record Owner by Mailing and Posting. If on at least two different days a good faith effort to serve a borrower . . . pursuant to section (a) of this Rule was not successful, the plaintiff shall effect service by (1) mailing, by certified and first-class mail, a copy of all papers filed to commence the action . . . to the last known address of [the] borrower . . . and, if the person's last known address is not the address of the residential property, also to that person at the address of the property; and (2) posting a copy of the papers in a conspicuous place on the residential property. Service is complete when the property has been posted and the mailings have been made in accordance with this section.
Rule 14-209(b). In sum, the provisions of both Real Prop. § 7-105.1(h) and Md. Rule 14-209 require notice of foreclosure by personal service on the mortgagor but, if those efforts fail, service can be effectuated by posting and mailing copies of the notice by certified and first-class mail.
Here, the substitute trustees complied with Maryland's foreclosure notice requirements by sending the foreclosure documents by both certified and first-class mail, and by posting notice of the foreclosure proceedings on the property, after two attempts at personal service were unsuccessful.
Appellant argues, however, that because actual notice is essential to due process, the notice requirements of Md. Rule 2-121, governing the service of process generally in civil cases, is applicable in this situation where he was out of the country when the foreclosure proceedings were initiated. That Rule provides:
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