Gaspin v. Browning

• Decision Date: 17 May 1972
• Docket Number: No. 346,346
• Citation: 290 A.2d 507,265 Md. 552
• Parties: Howard L. GASPIN et al. v. Warren BROWNING et al., Substituted Trustees.
• Court: Maryland Court of Appeals

Page 552

265 Md. 552

290 A.2d 507

Howard L. GASPIN et al. v. Warren BROWNING et al., Substituted Trustees.

No. 346.

Court of Appeals of Maryland.

May 17, 1972.

Henry J. Noyes, Rockville, for appellants.

James C. Christopher, Bethesda, for appellees.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

DIGGES, Judge.

The only issues involved in this appeal from the Circuit Court for Prince George's County (Mathias, J.) are whether appellants, Howard L. Gaspin and his mother, Tillie Gaspin, were entitled to receive warning of an impending deed of trust foreclosure sale under Maryland Rule W74 a 2(b) and, if so, were they in fact given such notice. Since under our view this rule did not require that the Gaspins be given notification of the sale, there is no necessity to reach the second question.

On May 27, 1964 The Paramount Realty Company executed a deed of trust conveying to trustees commercial property located at 9213 Baltimore Avenue, College Park, Maryland. The purpose of this lien was to secure the payment of Paramount's installment note in the sum of $15,600 payable to Suburbia Savings and Loan Association. The property was later transferred, subject to the trust, first from the realty company to Vincent Federici and wife and then on March 28, 1967 by the Federicis to the Gaspins. Neither of these two purchasers agreed to pay the remaining balance due on the note nor to otherwise assume responsibility for any of the covenants contained in the trust. The record discloses that the Gaspins were frequently in default on the note. In fact, during the summer of 1970 a warning was sent to appellants at 709 Northwood Terrace, Silver Spring, Maryland, by the two substituted trustees, Warren Browning and Stanley Betts, that there were plans to institute foreclosure proceedings. But this course of action was abandoned when the Gaspins made their back payments. About a year later, the trust was once more in substantial default and the matter again was referred to the substituted trustees with directions to foreclose. Pursuant to this, they sent notice to the mortgagor, Paramount, and again to the appellants, but this time it was directed to Howard Gaspin's former residence on Eaton Way in Crofton, Maryland. The registered letter of notification was not delivered but instead was returned to the sender with the memo: 'moved, not forwardable.' The only other attempt the trustees made to reach appellants was by telephone, which also failed. Browning testified the letter was mailed to the Crofton address rather than Silver Spring because he had previously been informed by Mr. Gaspin that had the earlier notices been so addressed the obligation would never have been in default. The trustee also said that a further reason for sending notification to Crofton was the fact that tax bills showed it as appellants' residence. The Gaspins, in disputing this evidence contend that Suburbia's files, to which the trustees had access, correctly listed their address as being in Silver Spring. In any event appellants initially learned of the foreclosure after the trustees' sale, from their tenant who purchased the property. When the report of sale was made to the court, the Gaspins filed exceptions maintaining that the sale was void because of the trustees' failure to give them notice as required by Maryland Rule W74 a 2(b). ¹ Judge Mathias rejected this contention and ratified the sale. From that ruling this appeal is taken.

We start with the premise expressed in Butler v. Daum, 245 Md. 447, 226 A.2d 261 (1967), that no one (prior to 1969) was entitled to personal notice that foreclosure of a mortgage or deed of trust was pending. The only warning required to be given those affected by the proceedings, including the buying public, was through the published advertisements of sale mandated by Rule W74 a 2(a). However, effective 1 November, 1969, Rule W74 was amended by adding paragraph (b) to subsection a 2 (W74 a 2(b)) which provides that notification of the foreclosure sale be sent to the mortgagor. That paragraph states:

'By Registered Mail.

Before making a sale of mortgaged property, the person authorized to make such sale shall also send by registered mail to the mortgagor, at the mortgagor's last known address, a notice of the time, place, and terms of sale. The notice shall be sent not earlier than twenty days and not later than five days before the date of sale. The person giving the notice shall file in the proceedings a return receipt or an affidavit that the provisions of this paragraph have been complied with. Where such filing is made before final ratification, failure of the mortgagor to receive the notice shall not invalidate a sale.'

The appellants contend that they are 'mortgagors' and therefore by this rule entitled to be notified of the time, place and terms of the sale at their last known address, in this instance, 709 Northwood Terrace, Silver Spring, Maryland. The trustees disagree and contend that under the provisions of the rule only Paramount, the original maker of the mortgage, was required to be given notice. Rule W70 explains the meaning of various words and phrases used in the special proceedings applicable to foreclosures and though mortgagee is defined, the term mortgagor is not. We have heretofore held that when a word is used in a statute or rule and not there specifically defined it should be construed as having its ordinary and commonly accepted meaning. Arundel Supply Corp. v. Cason, Md., 289 A.2d 585 (1972); Williams v. Associated Professors of Loyola College, 257 Md. 316, 328, 263 A.2d 5 (1970); Simpler v. State, Use of Boyd, 223 Md. 456, 165 A.2d 464 (1960). Mortgagor is defined in Black's Law Dictionary (3d ed. 1933) as 'he that gives a mortgage,' and mortgagee as 'he that takes or receives a mortgage.' Ballentine's Law Dictionary (3d ed. 1969) similarly defines mortgagor as 'a person who mortgages his property to another; the maker of a mortgage,' and mortgagee as 'the person to whom a mortgage is made.' Webster's Third New International Dictionary (1961) explains that a mortgagor is 'a person who gives a mortgage on his property as security for a loan he receives or other obligation,' and a mortgagee is 'a person who takes a mortgage on another's property as security for a debt or obligation.' See also Bouvier's Law Dictionary (3d rev. 8th ed. 1914) and American Heritage Dictionary (1969) for like definitions. From these authorities, both legal and general, it is clear that the word mortgagor, as customarily used, specifically refers to the maker or creator of a mortgage and not to one who is the grantee of, or holds title under that person. Whereas the word mortgagor has been frequently employed in the acts of the General Assembly of...