Facey v. Facey

Decision Date26 February 2021
Docket NumberNo. 1183, Sept. Term, 2019,1183, Sept. Term, 2019
Citation246 A.3d 687,249 Md.App. 584
Parties Roberto FACEY, Sr. v. Esther FACEY
CourtCourt of Special Appeals of Maryland

249 Md.App. 584
246 A.3d 687

Roberto FACEY, Sr.
Esther FACEY

No. 1183, Sept. Term, 2019

Court of Special Appeals of Maryland.

February 26, 2021

Argued by: Ronald L. Schwartz of College Park, MD, for Appellant.

Argued by: Robin Rucker Gaillard (Law Office of Robin R. Gaillard, LLC on the brief), Largo, MD, for Appellee.

Leahy, Gould, Charles E. Moylan, Jr. (Senior Judge, Specially Assigned), JJ.

Leahy, J.

249 Md.App. 593

Well over a century since the concepts of intrinsic and extrinsic fraud were first announced by the Supreme Court in United States v. Throckmorton , 98 U.S. 61, 25 L.Ed. 93 (1878),1 many courts still find the concepts "extremely difficult to apply." 11 Wright & Miller's Fed. Prac. & Proc. Civ. § 2868

249 Md.App. 594

(3d ed. 2020). The distinction between intrinsic and extrinsic fraud has been regarded as "shadowy, uncertain, and somewhat arbitrary." Howard v. Scott , 225 Mo. 685, 125 S.W. 1158, 1166 (1910). We are now drawn into this dusky thicket by the subterfuges surrounding the dissolution of the marriage between Roberto Facey, appellant, and Esther Facey, appellee.

In 2006, attendant to the break-up of the couple's nearly forty-year marriage, Roberto2 executed a "Promissory and Confessed Judgment Note" in favor of Esther in the amount of $75,000 ("2006 Note"). In 2008 and 2009, before any payments were made on the 2006 Note, Esther suffered a series of debilitating strokes.

Soralla Facey de Otts, the couple's daughter, was responsible for taking care of her mother and, in May 2011, filed a "Complaint for Confession of Judgment" in the Circuit Court for Prince George's County based on the 2006 Note. Soralla's

246 A.3d 693

authority to file this action resided in a power of attorney purportedly executed by Esther in 2008 ("Power of Attorney"). In July 2011, the court issued a judgment against Roberto for $75,000 ("2011 Judgment"). Roberto responded with a "Motion to Open, Modify, or Vacate Confessed Judgment" based on allegations of duress, undue influence, misrepresentation, and the statute of limitations. The court denied Roberto's motion.

Over seven years later, in October 2018, Roberto challenged the 2011 Judgment again in a second "Motion to Vacate Judgment and Dismiss Case." This time, he claimed that the Power of Attorney relied upon by Soralla to bring the 2011 lawsuit was fraudulent. He alleged that the document had been backdated to appear as though it was executed prior to Esther's disability and that it did not contain Esther's authentic signature.

249 Md.App. 595

The circuit court held an evidentiary hearing on Roberto's motion on January 24, 2019. Several months later, the court issued an opinion and order denying the motion after finding that, while sufficient evidence was adduced establishing that the Power of Attorney was both fraudulently procured and a forgery, the forgery did not constitute extrinsic fraud triggering the court's revisory power under Maryland Rule 2-535(b).

Roberto noted this timely appeal and presents two questions which condense to the following:

Did the trial court err in finding that the fraud in this case was intrinsic rather than extrinsic and, based on that determination, abuse its discretion in declining to exercise revisory power over the 2011 Judgment under Maryland Rule 2-535(b) ?3

We affirm the circuit court's determination that the fraud in this case constituted intrinsic fraud and conclude that the circuit court did not abuse its discretion in declining to exercise its revisory power under Maryland Rule 2-535(b).4


Esther and Roberto married on December 2, 1966 and had four children: Soralla, Jenetha, Roberto Jr. and Sabrina. On

249 Md.App. 596

March 25, 2004, Roberto was granted an absolute divorce after the court granted his motion for default. Approximately one-and-a-half years later, Esther moved to vacate the default judgment. That case was resolved when the parties reached an agreement that was subsequently placed on the record. As a part of this agreement, on February 22, 2006, Roberto executed the 2006 Note in favor of Esther in the amount of $75,000.00.

246 A.3d 694

In late 2008, Esther suffered a stroke, after which her adult children moved her from Florida to Maryland. She suffered a second stroke in late 2009.

On May 13, 2011, Soralla filed the underlying complaint for confessed judgment of the 2006 Note. The complaint named Esther as the plaintiff and stated that Soralla "brings this suit on behalf of her mother" pursuant to the Power of Attorney. The complaint alleged that subsequent to the granting of that Power of Attorney, "Esther Facey suffered a stroke and is no longer competent to manage her own affairs." The complaint further alleged that, despite demand, Roberto had not made any attempt to pay the amounts due.

The Power of Attorney was attached to the complaint as "Exhibit A." The document, allegedly witnessed on October 8, 2008, contained Esther's purported signature. On July 1, 2011, on the court's instruction, the clerk issued a "Notice of Entry of Judgment by Confession" against Roberto in the amount of $75,000.

First Motion to Revise

Roberto filed a "Motion to Open, Modify, or Vacate Confessed Judgment" on August 1, 2011. The motion included allegations of duress, undue influence, and misrepresentation. Roberto claimed that he executed the 2006 Note based on representations made by his son that his son would make payments on the note in consideration of his signature. Because Roberto's son had lost his business, he was unable to keep this promise. Additionally, Roberto accused his daughters, Soralla and Jenetha, of preparing the promissory note

249 Md.App. 597

without his review, and then urging him "to quickly sign it to ensure" the divorce. Roberto requested a hearing on his motion.

Soralla filed an opposition, on Esther's behalf, in which she asserted that the 2006 Note was required to redress Roberto's fraud:

[Roberto] obtained a default judgment of absolute divorce from [Esther] by means of a fraudulent affidavit which alleged that he could not find [Esther]. By obtaining his divorce from [Esther] by default in that manner, he was able to deprive [Esther] of her marital interest in his METRO pension. The confessed judgment note entered into herein was a settlement of the motion to vacate the default judgment of absolute divorce which would otherwise have reopened issues of marital property.

Ironically, and, it seems, with some augury, Soralla claimed that Roberto's representation in his motion to revise the 2011 Judgment—that he relied on his son's promise—was not meritorious because he failed to allege fraud:

In any event, [Roberto] does not appear to argue that his son defrauded him by making knowingly false representations but, rather, that his son's business failed and he was unable to follow through.

(Emphasis in original). On November 17, 2011, a motions hearing was held on Roberto's motion. At the hearing, Roberto "acknowledged the existence of the [2006 Note]." The court denied Roberto's motion.


Soralla and Jenetha petitioned the Circuit Court for Prince George's County to appoint them as co-guardians of the person and property of Esther in 2015. After a contested hearing on February 23, 2017, the court granted the guardianship petition.

249 Md.App. 598

Second Round

On October 11, 2018, Roberto discharged another fraud claim in a second "Motion to Vacate Judgment and Dismiss

246 A.3d 695

Case." In this attack on the 2011 Judgment, Roberto claimed that the "Power of Attorney which conveyed the standing of Soralla Facey de Otts to bring the [2011] lawsuit and obtain the judgment was fraudulent" because it was prepared after Esther's stroke and had been "back dated to appear that it was executed prior to her disability." In support of this accusation, Roberto claimed that the document did not contain Esther's authentic signature and pointed out that the notary, Gary A. Rucker, had written on the document that his commission expired on January 10, 2013. Because, in Maryland, "Notary Commissions are valid for four years," Roberto asserted that Mr. Rucker's commission "could not have been granted before January 10, 2009, a date after the alleged execution [on October 8, 2008] of the Power of Attorney."

Mr. Rucker admitted, in his affidavit appended to the motion, that he did not witness the execution of the Power of Attorney by Esther. He further attested that Soralla presented the Power of Attorney to him already signed and requested that he back date it to October 2008. He protested initially, but, because Soralla was an...

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