Tuesday, July 14, 2015

Maryland stops frivolous foreclosure defense motions.

Maryland's intermediate appellate court provided clarity to a confusing rule, but at the same time made it more difficult to stop a residential foreclosure.

In Buckingham v. Fisher the Maryland Court of Special Appeals was asked to make clear what must be alleged in motions to dismiss filed in foreclosure cases.  Since 2009, the rules have separated motions to enjoin and dismiss foreclosures from the old rules on traditional injunctions. Among the requirements of the new rule is that the homeowner (or any other interested party seeking to dismiss or enjoin a foreclosure) must allege a defense that "on its face state[s] a valid defense." Absent this core requirement, the motion will be denied, and the foreclosure will proceed.

In Buckingham, the allegation was forgery.  The Personal Representative of one homeowner alleged that the signature of the other long-dead homeowner was forged. He alleged that the forgery made the deed of trust void from its inception.

For us lawyers, the most important part of this decision is the appellate court's direction that a motion to dismiss in a foreclosure case is scrutinized much differently than an ordinary complaint.  When a new case is filed, the complaint will survive a motion to dismiss if there is any basis from which the court may infer a valid claim. But in foreclosure cases, the allegations made against the deed of trust must be made with "particularity." And that is the highest civil pleading standard.

In short, the motion to dismiss a foreclosure case must meet the same pleading standards as cases alleging fraud.

The Buckingham decision illustrates how high the bar has been set.  Where the motion to dismiss alleged forgery, the motion failed for lack of pleading on one key element- the forger's intent to defraud.  The court did not leave open the possibility that this element could be filled in by future discovery. Instead, it upheld the trial court's outright denial of the motion.

The pendulum continues to swing away from the very liberal use of various procedural rules by those seeking to stop or delay the foreclosure process. The courthouse door still remains open to the truly aggrieved.