Jury trial entitlement further restricted in Maryland.

 The most recent election brought further restriction on your entitlement to a jury trial in civil matters that fall below the new limits. This, from the Daily Record:

Maryland voters on Tuesday approved a constitutional amendment raising the amount in controversy that entitles litigants to a jury trial from more than $15,000 to more than $25,000.

The change marks the state’s first increase to the jury trial threshold since 2010, when Marylanders approved a boost from more than $10,000 to more than $15,000.

Voters approved the amendment by an unofficial margin of 62% to 38% as of Wednesday afternoon, according to the Maryland State Board of Elections.

We are deeply disappointed. This creates further impediment to a fundamental right. The right to trial by a jury of peers is a building block of democracy that has been diminished. 

Mediation - the cure for pandemic induced court delay in civil disputes.

 Mediation is growing in popularity among Maryland  trial lawyers. Civil matters are particularly well-suited to mediation sessions, where settlement positions can be traded, discussed and finalized with the help of a neutral mediator. 

The case for mediation in civil matters has been made stronger by the current pandemic, and resulting delays in the Maryland trial courts. By way of example, this Firm concluded a four-day trial in a circuit court. The last argument was made in February, 2020, shortly before the successive shut downs and periods of restricted access.

The case was tried after almost two years of pretrial discovery and motions practice. The parties to the case were relieved when the trial concluded, anticipating a court decision that would permit them to move beyond the dispute, and to more productive business endeavors. 

That was twenty-two months ago. We continue to await a decision.

The disruption of normal court activities has been so complete that this case, and many others, remain in judicial limbo. No decision, for the plaintiff or defendant, means that the case is effectively on hold. And since neither party has won or lost, there are no appeals to be lodged, briefed or argued.

In a separate case, this Firm recently obtained judgment for our client in an uncontested case. That case was filed thirty-four months ago

When a marriage isn't.

     Being a married couple in Maryland creates many benefits. One benefit is the joint ownership of real property (land and buildings) as "tenants by entireties." This is an ancient construct where the married couple is seen as one unit, owning the land as one. A deed describing a tenancy by the entireties would read "Jane and John Whiteacre, as husband and wife."  

    In rare cases, a deed is drafted without reference to "as husband and wife."  Maryland law will still recognize the ownership as a tenancy by the entierties if there was an actual marriage. This may require some investigation by real estate and title professionals, but it stems from the importance of a real marriage. It is not the words in the deed that create the tenancy by the entireties, it is the marriage. The words in the document are merely descriptive of the marriage.

    This special joinder of two spouses into one unit is Maryland's way to encourage marriage. Creditors for one spouse or the other cannot attach or levy against the property, and court judgments of one or the other cannot attach. Only joint debts and judgments will attach (the IRS has special super powers in this area that require a separate article).

    Married couples also pass ownership to each other, upon death. No new deed is required, and their tenancy by the entireties owned property does not pass through probate. This process greatly benefits estate planning, and tax avoidance (at least for the first spouse to die). It is that simple- one spouse dies, the property is automatically and instantaneously owned by the surviving spouse.

    Status, then, is paramount. The corporate benefits of matrimony are only bestowed by the State where there has been a valid marriage. Maryland does not recognize common-law marriage, where a couple lives together and acts like a couple, without having participated in a ceremony and obtained a marriage license.

    The existence, or not, of a marriage is commonly understood to be based on a State issued marriage license-- Have a license? Then you are married. Don't have a license? Then you must not be married.    

    Or are you?

    Maryland's Court of Special Appeals published an opinion that clears up an ambiguity that has persisted in the law since at least 1915. In Trapasso v. Lewis, the litigants contested whether a marriage evidenced only by a religious ceremony, but no marriage license, constituted a valid marriage. At issue was whether the surviving spouse owned 100% of the home, or only 50%. If the marriage was not valid, then the deceased spouses' interest would be owned by a trust, controlled by the deceased spouse's child from a prior marriage. 

    The appellate court teaches us that Maryland's marriage license law, which has not changed since 1915, does not invalidate a marriage for lack of a State issued license. It merely makes it a misdemeanor, punishable by a fine. The statute's admonition that "an individual may not marry in this State without a license..." does not carry with it a presumption or determination that the marriage is invalid. The couple are merely at risk of a $500 fine.

    That same couple may still enjoy all the corporate benefits of marriage if there is adequate indicia of a religious ceremony. And this is where things remain foggy. Most can readily agree that ceremonies conducted by the world's major religions, before licensed officiants, with an exchange of vows constitute "religious ceremony." There is still plenty of room to argue against traditions of lesser known and accepted religions.

    The difficulty remains that any inquiry is backward facing. Proponents for validity of a marriage not evidenced by a State issued license must marshal evidence, witnesses and circumstances. It is even more likely, now, that this issue will percolate more frequently in probate, real estate, and debt collection actions.

    This Firm has long wrestled with the validity of ceremonial marriage in the context of probate and real estate disputes. But it is not hard to imagine a credit card company may file a lawsuit to declare a marriage invalid so that it can then enforce a money judgment against a family home. The bigger the debt, the deeper a creditor may dig into a family's history. The courts have post-judgment discovery proceedings that make this information accessible.

    Remember, after you "put a ring on it," get that license.

    Have an issue? Fill out our contact form, or visit our website.

    

Maryland's Court of Appeals adopts tech changes to make justice more accessible.

This week, Maryland's highest court, which makes the rules dictating how litigation is conducted in all of our courts, adopted rules making access to justice a bit easier.

Spurred by the inconvenience visited by COVID-19, where mandatory closures prevent many court room activities, the Court approved the following;

• Video conferencing in the District Courts- A visit to the District Court is often akin to a visit to the MVA. The waits are long, the rooms crowded, and you are often told to return, again, on a later day. Soon, many conferences and hearings will be held by video participation.  What remains to be worked out is whether persons without internet or a computer may still participate in person, or whether this innovation has created another practical impediment to court access for some.
  
• Electronic filing for appeals- Three of Maryland's largest jurisdictions are Baltimore City, Prince George's and Montgomery Counties. They are not yet set up for electronic filing. Appeals to the courts in Annapolis are thus not done electronically. That has been changed.  While filings in the Circuit Courts must still be mailed or hand-delivered, appellate filings to the courts in Annapolis will be via the on-line portal.  This is a modest improvement, but a step toward uniform efficiency.
  
• Remote video depositions- The current rules of procedure do not contemplate remote participation via video. Taping is routine, but it still requires gathering in one location. The conduct of remote discovery can add efficiencies to litigation, while also adding complexities that drive up costs for litigants. It also creates opportunity for shenanigans, where remote deponents may be secretly coached or manipulated by off-camera persons or devices. 

We will help you manage these innovations, and move your cases to the swiftest conclusion our system will allow. Changes must be made, and they will breed additional modifications in how we conduct your cases. We will adapt and grow with them. As the CEO of Uber reminds us, "ultimately, progress and innovation win."

Let our lawyers surf your court case.

Business leads to litigation.

Make your opponent take notice.

New Maryland foreclosure rules for abandoned or vacant properties.

Lenders may now foreclose faster on abandoned or vacant  Maryland residential properties. 

Senate Bill 1033 went into effect on October 1, 2017. It provides a short-cut to the existing foreclosure rules that prevent a lender from initiating foreclosure until 90 days have elapsed from the triggering event.

There must still be a triggering event, such as an extended failure to pay. But if the property is vacant or abandoned the lender may file a petition in the circuit court for permission to immediately foreclose without notice. The court is required to rule on the petition "promptly."

The petition must include admissible evidence to demonstrate that the property is vacant or abandoned. How is that to be done?  The lender must demonstrate any three of the following eleven factors (the capitalized language is lifted from the new law):

(1) GAS, ELECTRIC, SEWER, OR WATER UTILITY SERVICES TO THE PROPERTY HAVE BEEN DISCONNECTED;
(2) WINDOWS OR ENTRANCES TO THE STRUCTURE ON THE PROPERTY ARE BOARDED UP OR CLOSED OFF, OR MULTIPLE WINDOW PANES ARE BROKEN AND UNREPAIRED;
(3) DOORS TO THE STRUCTURE ON THE PROPERTY ARE SMASHED THROUGH, BROKEN OFF, UNHINGED, OR CONTINUOUSLY UNLOCKED;
(4) JUNK, LITTER, TRASH, DEBRIS, OR HAZARDOUS, NOXIOUS, OR UNHEALTHY SUBSTANCES OR MATERIALS HAVE ACCUMULATED ON THE PROPERTY;
(5) FURNISHINGS, WINDOW TREATMENTS, OR PERSONAL ITEMS ARE ABSENT FROM THE STRUCTURE ON THE PROPERTY;
(6) THE PROPERTY IS THE OBJECT OF VANDALISM, LOITERING, OR CRIMINAL CONDUCT, OR THERE HAS BEEN PHYSICAL DESTRUCTION OR DETERIORATION OF THE PROPERTY;
(7) A MORTGAGOR OR GRANTOR HAS MADE A WRITTEN STATEMENT EXPRESSING THE INTENTION OF ALL MORTGAGORS OR GRANTORS TO ABANDON THE PROPERTY;
(8) THERE IS A DETERMINATION THAT NO OWNER OR TENANT APPEARS TO BE RESIDING ON THE PROPERTY AT THE TIME OF AN INSPECTION OF THE PROPERTY BY:
     (I) THE THE SECURED PARTY; OR
     (II) AN APPROPRIATE OFFICIAL OF THE COUNTY OR MUNICIPAL CORPORATION IN WHICH THE PROPERTY IS LOCATED;
 (9) TWO OR MORE CITATIONS HAVE BEEN ISSUED BY A COUNTY OR MUNICIPAL CORPORATION AGAINST THE PROPERTY FOR FAILURE TO MAINTAIN THE PROPERTY AND A HEALTH AND SAFETY ISSUE EXISTS THAT HAS NOT BEEN RECTIFIED;
(10) THE PROPERTY HAS BEEN CONDEMNED BY A COUNTY OR MUNICIPAL CORPORATION; OR
(11) OTHER REASONABLE INDICIA OF ABANDONMENT EXIST.

As you can see, there is a lot to pick from, and each alleged "fact" is an opportunity for dispute at the court's "prompt" hearing. The borrower has an opportunity under the new rule to deny the alleged facts supporting the petition. What is not clear is whether a borrower can be given the opportunity to cure the conditions on which the petition is based (in addition to bringing the loan current), and thus render the petition moot or premature.

But shortening the process for foreclosure on vacants may not be enough to entice lenders to execute on recorded liens. Lenders may continue the practice of electing a breach of contract action against the borrower in order to obtain a money judgment. It is the business practice of some lenders to seek court judgment against the borrower on the underlying promissory note, while leaving the recorded lien intact as a cloud on title. This practice makes it even less likely that a vacant or abandoned property will be recycled to productive use. The new rule does nothing to remove this choice from the lender--- a bank cannot be forced to foreclose, even if the borrower is delinquent, and especially if the property is abandoned or vacant.

Do you need to file or defend such a petition? Fill out our contact form on this page and let's discuss your case.

Maryland Home Improvement Laws protect homeowners, not contractors.

On December 11, 2015 we obtained a trial judgment favoring our client against a negligent home improvement contractor. The court's logic in awarding judgment predicts a new wrinkle in Maryland law governing the relationship between homeowners and the home improvement contractors they hire.

In our case, the home improvement contractor had a Maryland Home Improvement license. This is an absolute requisite to performing home improvements. Without a home improvement license the contractor may not enforce a contract against the homeowner. The unlicensed contractor will also be open to criminal prosecution by the Office of the Attorney General.

This is the well settled law in Maryland, since 1970.

But what if, as in our case, a licensed contractor hires unlicensed sub-contractors? There is no reported Maryland decision directly on this set of facts.

We believe the correct analysis is that the homeowner always wins, and that the licensed contractor may not enforce a contract where he has hired unlicensed sub-contractors to do his work. This is consistent with several provisions of the Maryland Home Improvement Commission regulations, and with recent cases.

For example, in a 2012 reported case, the Maryland  Court of Special Appeals refused relief to a licensed contractor that was defending a lawsuit by an unlicensed sub-contractor. Relying on laws saying sub-contractors must be licensed, the contractor had refused to pay for work done by the unlicensed sub-contractor.  The court rejected this position for a very simple reason--

Maryland's Home Improvement Laws exist to protect homeowners, and not contractors.

In the case involving the licensed contractor against the unlicensed sub-contractor, the appellate court said the protections normally afforded homeowners are not available.

And so, in our own case, the trial court refused to enforce the contract of the licensed home improvement contractor against our homeowner client because of the unlicensed sub-contractor. But the licensed contractor remained responsible to pay for our client for the damages it caused to our client's home.

While this case turned out correctly for our client, we do expect that this type of case will eventually percolate to the Maryland Court of Special Appeals. Once there, we also believe the appellate court will close the gap in the case law to more clearly protect the homeowner.

But if you are having home improvement work done, make sure your main contractor is licensed, and make sure that every one of his sub-contractors is also licensed by the Maryland Home Improvement Commission.

Visit our website at www.youngandvalkenet.com 

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.