McCray v. Driscoll

• Decision Date: 17 September 2020
• Docket Number: No. 1367,1367
• Parties: RENEE L. MCCRAY v. JOHN E. DRISCOLL, III, et al.
• Court: Court of Special Appeals of Maryland

RENEE L. MCCRAY v. JOHN E. DRISCOLL, III, et al.

No. 1367

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

September 17, 2020

Circuit Court for Baltimore City

Case No. 24-O-13-000528

UNREPORTED

Reed, Shaw Geter, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

Opinion by Salmon, 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.

This appeal involves a foreclosure action brought in the Circuit Court for Baltimore City by John E. Driscoll, III and several other Substitute Trustees to foreclose on property owned by appellant, Renee L. McCray ("McCray" or "appellant"). The case has a long and complicated history brought about by skillful dilatory tactics used by McCray that have allowed her to continue to live at her property even though she has made no payments on the promissory note secured by a deed of trust on that property for over eight years. Her efforts to avoid eviction have included four bankruptcy filings, a federal lawsuit, four previous appeals to this Court, plus numerous requests filed in the circuit court to reconsider earlier orders.

In almost all her pleadings filed in the circuit court, McCray has asserted that "she is not schooled in the law" and because she is filing her pleadings pro se she "should not be held to the same standards as bar attorneys." For that proposition, she cites Tretick v. Layman, 95 Md. App. 62, 68 (1993), which stands for the exact opposite ("The principle of applying the rules equally to pro se litigants is so accepted that it is almost self-evident."). See also Dept. of Labor v. Woodie, 128 Md. App. 398, 411 (1999) ("It is a well-established principle of Maryland law that pro se parties must adhere to procedural rules in the same manner as those represented by counsel."). In this appeal, apparently believing, or possibly hoping that she is not bound by the rules governing appeals to this Court, she has filed a brief that in almost every possible respect does not comply with the Maryland Rules governing the content of an appellate brief.

I.PROCEDURAL AND FACTUAL BACKGROUND¹

On October 7, 2005, McCray borrowed $66,500 from American Home Mortgage Corporation ("American Mortgage") to refinance her home located at 109 N. Edgewood Street, Baltimore, Maryland ("the Property"). She gave American Mortgage a thirty-year note and a deed of trust on the Property to secure repayment of the note.

The note provided that American Mortgage could transfer the note, and that anyone who obtained the note by transfer was entitled to receive payment under the note as the noteholder. The deed of trust recognized American Mortgage as the original lender but also identified the Mortgage Electronic Registration Systems, Inc. ("MERS") "as nominee for Lender and Lender's successors and assigns." At some point after the note was executed, American Mortgage sold the loan to the Federal Home Loan Mortgage Corporation ("Freddie Mac"), and Wells Fargo Bank, N.A. ("Wells Fargo") was retained by Freddie Mac as a servicer on the loan. By June of 2011, at least, McCray knew that Wells Fargo was the servicer on the note because that was when she first disputed a monthly billing statement sent by Wells Fargo and asked it to send her information about the fees and costs that it was charging.

For reasons that are not shown in the record, in May of 2012, McCray stopped making payments on the note that was secured by the deed of trust. On June 26, 2012,Wells Fargo filed, in the Circuit Court for Baltimore City, a "Corporate Assignment of Deed of Trust." That assignment conveyed from MERS to Wells Fargo, the deed of trust. The assignment, however, did not transfer ownership of the debt.

Wells Fargo sent McCray a notice that she had defaulted on the note secured by the deed of trust on August 2, 2012. On February 12, 2013, John E. Driscoll, III and the other Substitute Trustees who had previously been appointed by Wells Fargo, filed an "Order to Docket Suit of Foreclosure of Deed of Trust" in the Circuit Court for Baltimore City. The Order to Docket was filed pursuant to Md. Rule 14-207. Accompanying the Order to Docket were the ten exhibits that are required by Md. Rule 14-207(b) to be filed in a foreclosure suit against owners of residential property. One of the exhibits filed was a copy of a promissory note McCray had signed. Importantly, the note showed on its face that it had been assigned by American Mortgage to Wells Fargo and that Wells Fargo, in turn, had indorsed the note in blank.

Another exhibit attached to the Order to Docket was an affidavit by a vice president of loan documentation for Wells Fargo stating that Freddie Mac was the owner of the note and that the owner had authorized Wells Fargo to be the holder of the note for purposes of bringing the subject foreclosure action. Also attached to the Order to Docket was a document showing that the Substitute Trustees, who are the appellees in this case, were appointed by Wells Fargo, on November 6, 2012, to sell the subject property.

As explained more fully infra, principles of law enunciated in the case of Deutsche Bank Nat. Trust Co. v. Brock, 430 Md. 714 (2013) demonstrates that Wells Fargo, who hadphysical possession of the note, had the right to appoint trustees to bring the subject foreclosure action.

The Order to Docket was served on McCray on February 28, 2013. Two months later, on May 1, 2013, McCray requested mediation. A mediation hearing was held on June 26, 2013 but failed to result in any agreement.

On July 9, 2013, McCray timely filed her first motion to stay the sale and dismiss the action. Unfortunately, there was no indication that movant had any knowledge of the legal principles applicable to cases of this sort; those principles were explained in Deutsche Bank Nat. Trust Co. v. Brock, supra.

McCray said in her motion that, "[u]pon information and belief," the Substitute Trustees "have no legal interest in the promissory note or deed of trust and no right to enforce either[.]" She gave no indication as to the foundation for her belief that the Substitute Trustees did not have the right to bring the action. And, in her motion, McCray did not deny that she had failed to make the payments due under the note. Instead she said, again "upon information and belief," that she "owe[s] nothing to the [Substitute Trustees] or any company of which the [Substitute Trustees] might claim to be servant respecting the promissory note and deed of trust[.]"

McCray did not ask for a hearing in regard to her first motion to stay and dismiss. That motion was denied by the circuit court on August 7, 2013. The grounds for the denial were that McCray had failed to state a valid defense to the validity of the lien or the lien instrument or to the right of the Substitute Trustees to foreclose.

McCray filed a motion to reconsider the denial of the motion to stay and dismiss on August 16, 2013, which was denied by order of the circuit court dated September 11, 2013.

Besides filing a motion to stay the foreclosure sale and to dismiss it, McCray filed, on May 23, 2013, an action for money damages in the United States District Court for the District of Maryland ("U.S. District Court"), in which she named as defendants, Freddie Mac, the Substitute Trustees (and the law firm that employed them), and Wells Fargo. That lawsuit involved the same deed of trust, promissory note and efforts by the Substitute Trustees and/or their agents to collect money owed on the promissory note as are involved in the subject case. The lawsuit, which was filed pro se by McCray, alleged, inter alia, violation by the defendants of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. (2012); the Truth in Lending Act ("TILA"), 15 U.S.C. § 1641(g) (2012); and the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq. (2012).

Shortly after the circuit court denied McCray's motion to reconsider the denial of her first motion to stay and dismiss the foreclosure action, McCray filed a bankruptcy petition in the United States Bankruptcy Court for the District of Maryland ("Bankruptcy Court"). That bankruptcy filing stayed the proceeding effective October 1, 2013.

On January 24, 2014, the U.S. District Court, in an opinion written by the Honorable George L. Russell, III, dismissed McCray's FDCPA and TILA claims against Freddie Mac and Wells Fargo, and granted summary judgment in favor of Freddie Mac and Wells Fargo on McCray's RESPA claim. McCray v. Federal Home Loan Mortgage Corporation, etal., 2014 WL 293535. McCray filed an appeal of that decision to the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit").

On March 2, 2014, McCray filed, in the Bankruptcy Court, an amended complaint containing three claims, "each of which [was] grounded upon Ms. McCray's assertion that Wells Fargo does not have the right to enforce a security interest against the Property." McCray v. Wells Fargo Bank, N.A., et al., 2014 WL 12682280. Slip op. at 2 (filed November 3, 2014). The Bankruptcy Court ruled against McCray saying:

Ms. McCray's assertions, in the District Court Action, in this adversary proceeding and as a defense to the Motion for Relief from Stay, revolve around a common core—Ms. McCray believes that Wells Fargo is not a holder of the note and/or does not have the right to enforce the promissory note that it clearly holds. The basis for Ms. McCray's position is not entirely clear, but she seems to believe that Wells Fargo does not validly hold the note that it got from the predecessor lender or that the original note has not been (but must be) produced or that something is ineffective about the endorsement. However, Wells Fargo has certified in the Circuit Court for Baltimore City that it possesses the promissory note signed by Ms.

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