Wednesday, September 29, 2010

Foreclosure practice in Baltimore City- pushing the "envelope."

On September 28th, I attended a meeting of approximately 40 foreclosure lawyers and Judge Michel Pierson, of the Baltimore City Circuit Court. While I don't conduct foreclosures, I was invited by the Court because my name appears in various foreclosure files as counsel seeking to alternately stay a case, consolidate with a quiet title/declaratory judgment action, or vacate a judgment improperly taken. This was a wonderful chance to catch up with old friends, and to hear how the Court and its hired staff intend to interprete the recent changes to how due process is administered in foreclosure cases.

One issue that seemed to confuse the Court, though, was the new rules' reference to filing of the "envelope" containing certain disclosures and notices to the borrower. The legislature didn't consider that the actual envelope gets mailed to the borrower. The clerk tells us that filing of a "copy" of the envelope will suffice as proof of mailing. However, this ignores the fact that many offices e-mail .pdf files to their process servers, who may then stuff their own envelopes. Jeff Fisher, a very practical fellow, suggested that the clerk accept an affidavit in lieu of a copy of the process server's envelope. Judge Pierson acknowledged the confusion created by our beloved legislature, but declared "the rule says 'envelope', not affidavit..."

The lesson of the day is that the Court and the clerks will demand strict adherence to the new rules. For those of use who routinely vette foreclosure files, we will be looking to the form of affidavits and every required notice described in the rules. Saavy foreclosure counsel will take a close look at the new rules and educate their staff.