UNREPORTED IN THE COURT OF SPECIAL APPEALS OF

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 2177

SEPTEMBER TERM, 2014

ANTHONY DOWE, PERSONAL

REPRESENTATIVE OF THE ESTATES OF

HENRY KING, JR. AND LILLIAN V. KING

LAURA H. G. O’SULLIVAN, ET AL.

Eyler, Deborah, S.,

Arthur,

Salmon, James P.

(Retired, Specially Assigned),

JJ.

Opinion by Eyler, Deborah, S., J.

Filed: November 20, 2015

*This is an unreported opinion and therefore may not be cited either as precedent or as persuasive

authority in any paper, brief, motion, or other document filed in this Court or any other Maryland court.

Md. Rule 1-104.

– Unreported Opinion –

This is an appeal by Anthony Dowe, personal representative of the Estates of

Henry King, Jr., and Lillian King, the appellant, from the denial by the Circuit Court for

Prince George’s County of his exceptions to the foreclosure sale of a property owned by

the estates. The foreclosure action was brought by Laura H. G. O’Sullivan, Erin M.

Brady, Diana C. Theologou, Laura L. Latta, Jonathan Elefant, Chastity Brown, and Laura

T. Curry, the appellees, as Substitute Trustees on a deed of trust. Dowe asks whether the

court erred in overruling his exceptions and ratifying the sale.

For the following reasons,

we shall affirm the order of the circuit court.

FACTS AND PROCEEDINGS

Henry King, Jr. (“Henry”), now deceased, was Dowe’s stepfather. Henry’s wife,

Lillian King (“Lillian”), also now deceased, was Dowe’s mother.

Henry and Lillian owned residential real property located at 500 Sentry Lane, in

Fort Washington (“the Property”). On March 10, 2008, Henry refinanced his purchase

money loan on the Property, borrowing $162,250 from National City Mortgage, a

The questions as posed by Dowe are:

1. When certified mail notices are deemed, “undeliverable as addressed”

and regular first class mailings are not sent, nor received announcing notice

of a foreclosure sale, is the failure to take any additional steps to notify the

property owner excused?

2. Because Appellant, had no knowledge of the foreclosure sale, is it

constitutionally fair that, Appellant was denied an opportunity to exercise

his rights prior to the sale?

– Unreported Opinion –

division of National City Bank (the “Lender”).

In doing so, he executed a promissory

note (the “Promissory Note”) and a deed of trust (the “Deed of Trust”). The Deed of

Trust was recorded among the Land Records for Prince George’s County and created a

lien upon the Property. At some point not reflected in the record, the Lender indorsed the

Promissory Note to Federal Home Loan Mortgage Corp. (“FHLMC”). FHLMC

authorized PNC Bank (“PNC”) to be the holder of the Promissory Note for the purposes

of pursuing the instant foreclosure action.

On November 11, 2011, Henry died. In December of 2011, his estate defaulted

under the terms of the Promissory Note and the Deed of Trust.

On or about May 22, 2012, PNC Bank appointed the Substitute Trustees.

On September 5, 2012, Dowe was appointed the personal representative of the

Estate.

On October 26, 2013, PNC mailed three notices of intent to foreclose to the

Property address by certified mail. The notices were addressed to Henry’s estate, Lillian,

and to Henry’s estate “c/o Andrew [sic] Dowe.”

The notice stated that it was for an

“Owner-Occupied Property” and informed the recipients that “a foreclosure action may

Lillian was not a party to the refinance transaction. It is unclear whether she was a

borrower on the original purchase money loan.

Md. Code (1974, 2010 Repl. Vol.), section 7-105.1(c)(1) of the Real Property Article

(“RP”), states that “at least 45 days before the filing of an action to foreclose a mortgage

or deed of trust on residential property, the secured party shall send a written notice of

intent to foreclose to the mortgagor or grantor and the record owner.”

– Unreported Opinion –

be filed in court as early as 45 days from the post mark date of this Notice.” Included

with the notices was an information sheet explaining “possible workout options for the

loan,” as well as an application for a loss mitigation program and a list of organizations

that might be able to assist them.

On January 22, 2013, the Substitute Trustees filed in the circuit court an order to

docket a foreclosure action against the Property, with attachments, including a

preliminary loss mitigation affidavit. The affidavit, dated January 9, 2013, stated that the

Property was owner-occupied, that the loan might be eligible for loss mitigation, but that

the Substitute Trustees had been unable to “obtain all documentation and information

necessary to conduct the loss mitigation analysis,” specifically, a hardship letter, financial

information, and verification of income.

On January 25, 2013, Dowe was personally served at the Property with notice of

the foreclosure action. According to the affidavit of service, Dowe stated that he lived at

the Property with Lillian. Sometime after that date, Lillian died.

On August 20, 2013, the Substitute Trustees filed with the circuit court a final loss

mitigation affidavit. It stated that while loss mitigation analysis was pursued, it had been

unsuccessful because the “trial plan payments” were not made. As a result, the loan

workout had been “closed.” The affidavit also stated that the Property was not owner-

occupied because the “borrower [was] deceased.” Attached to the affidavit was a

“Request for Foreclosure Mediation” form and instructions addressed to Henry’s estate

and Lillian. The affidavit and the request for mediation documents were sent by first

– Unreported Opinion –

class mail and by certified mail, return receipt requested, to Henry’s estate, Lillian, and

Dowe at the Property address and to Henry’s estate and Lillian at an address in

Washington, D.C.

On September 6, 2013, Dowe filed with the circuit court a request for foreclosure

mediation on behalf of Henry’s estate.

On November 12, 2013, Dowe and the Substitute Trustees attended mediation

before an administrative law judge (“ALJ”) at the Office of Administrative Hearings. On

November 18, 2013, the ALJ filed a “Notification of Status” stating that the parties had

participated in mediation, but that “no agreement was reached.”

On November 22, 2013, the circuit court entered an order permitting the Substitute

Trustees to schedule a foreclosure sale, subject to the right of the borrower to move to

stay the sale and dismiss the action.

On February 18, 2014, the Property was sold at auction for $106,777. FHLMC

was the high bidder.

On March 13, 2014, the Substitute Trustees filed the Report of Sale. Pursuant to

Rule 14-210, they attached an “Affidavit of Notice” and an “Affidavit of Mailing Notice

to Occupants.” As relevant here, Brady, one of the Substitute Trustees, averred that on

January 31, 2014, she “mailed or caused to be mailed, by certified mail return receipt

requested and by first-class mail, postage prepaid, to the Mortgagors and to the present

record owner . . . notice of the time, place and terms of the sale scheduled for February

18, 2013.” She averred that on the same date she mailed a notice to all occupants of the

– Unreported Opinion –

Property by first class mail. Brady further averred that she caused notice of the sale to be

published in the Prince George’s County Post on January 30, 2014, February 6, 2014, and

February 13, 2014.

Attached to the affidavits was a “TrackRight Transactions Report” that listed all of

the mailing dates, the “Article Number,” the “USPS Service Type,” the “Status,” and the

postage for the notices.

It showed that on January 31, 2014, the Substitute Trustees sent

six notices by first class mail addressed to Henry’s estate, Lillian, and Dowe at the

Property address and two notices addressed to Henry’s estate and Lillian at the address in

Washington, D.C. Also on that date, they sent five notices by certified mail, return

receipt requested addressed to Henry’s estate, Lillian, and Dowe at the Property address

and two notices addressed to Henry’s estate and Lillian at the address in Washington,

D.C. Finally, they sent a notice addressed to the “Occupant” of the Property by first class

mail advising of the foreclosure sale. For the first class mailings, the “Status” column

stated that all of the notices sent to the Property address, with the exception of the notice

addressed to “Occupant,” were “Unclaimed.” The status for the notice addressed to

“Occupant” was listed as “Walz Event – Mailed.” The certified mailings all list a status

of “Walz Event – Mailed.” There was no explanation of the meaning of those statuses.

It appears that the Substitute Trustees utilized a private mailing service, the “Walz

Group, Inc.,” and that this report was generated by that company.

– Unreported Opinion –

Thereafter, on March 25, 2014, the clerk of the circuit court issued a notice of the

sale pursuant to Rule 14-305(c).

Within thirty days of that notice, on April 22, 2014, Dowe filed exceptions to the

foreclosure sale. He stated that Henry and Lillian both were deceased and that he was the

personal representative of their estates.

He alleged that he had not received proper

notice of the foreclosure sale pursuant to Rule 14-210. He asserted that he had never

received “notification of the foreclosure sale by certified mail, nor by first class mail and

[he] reside[d] at the property.” He alleged that he only learned of the sale when a “post

card advertisement” from a law firm was sent to him at the Property advising of the sale

and offering to represent him. Dowe asserted that the lack of proper notice had

prejudiced him because he had been “[d]enied the legal right to file a Motion to Stay Sale

and Dismiss the Foreclosure Action.”

He alleged moreover that PNC failed to engage in good faith loss mitigation

efforts. He alleged that while he was “supposed to have been granted a forbearance (trial

plan) for three months,” he never received that plan in writing. He alleged that he had

learned that the workout plan had mistakenly been mailed to one Danette Fredericks, who

was the special administrator of the Estate prior to Dowe’s appointment as personal

representative. Dowe also questioned why the preliminary loss mitigation affidavit stated

It is unclear from the record when Lillian died, but, as mentioned, it was apparently

after Dowe was served with notice of the foreclosure action. The record also does not

reflect whether an estate was opened for Lillian and whether Dowe was, in fact,

appointed the personal representative of her estate.

– Unreported Opinion –

that the Property was owner-occupied, while the final loss mitigation affidavit did not,

given that PNC knew that Henry was deceased prior to initiating the foreclosure action.

Dowe attached to his exceptions fourteen exhibits, including the mailer from the

law firm advising him of the foreclosure sale postmarked January 25, 2014; the “Track

Right Transaction Report” that had been attached to the Report of Sale showing the dates

and addressees on the mailings sent by the Substitute Trustees; and printouts showing

USPS tracking reports for some of those same mailings. He requested an evidentiary

hearing and for the court to set aside the foreclosure sale.

On August 21, 2014, the Substitute Trustees responded to Dowe’s exceptions.

They maintained that Dowe was afforded more than adequate notice of the foreclosure

sale because he was personally served in the foreclosure action, had attended mediation,

and numerous notices of the sale were mailed to him at the Property. They argued,

moreover, that because Dowe admitted that he was on actual notice of the sale date based

on the post card mailing he received from a law firm he could not have been prejudiced

by any deficiency in the notice by the Substitute Trustees. Finally, they maintained that

Dowe’s assertion that the Substitute Trustees failed to engage in good faith loss

mitigation was not properly raised in post-sale exceptions.

Dowe moved to strike the Substitute Trustees’ response to his exceptions as

untimely and filed a reply.

By memorandum and order entered November 12, 2014, the court overruled

Dowe’s exceptions and denied the motion to strike. The court reasoned that Dowe had

– Unreported Opinion –

failed to identify any “legitimate procedural irregularity” with regard to the foreclosure

sale. The court found that Dowe was served in the foreclosure action and attended

mediation “where no agreement was reached,” putting him on notice that “foreclosure

proceedings would move forward and in due course.”

On November 24, 2014, the court entered a final order ratifying the sale.

This timely appeal followed.

DISCUSSION

“[A]fter a foreclosure sale, ‘the debtor’s later filing of exceptions . . . may

challenge only procedural irregularities at the sale or . . . the statement of indebtedness.’”

Bates v. Cohn, 417 Md. 309, 327 (2010) (quoting Greenbriar Condo. v. Brooks, 387 Md.

683, 688 (2005)). The types of “procedural irregularities” that may properly be raised in

post-sale exceptions include “‘allegations [that] the advertisement of sale was insufficient

or misdescribed the property, the creditor committed a fraud by preventing someone from

bidding or by chilling the bidding, challenging the price as unconscionable’” or an

allegation that the lender failed to give proper notice. Jones v. Rosenberg, 178 Md. App.

54, 69 (2008) (quoting Greenbriar, 387 Md. at 741).

Real Property sections 7-105.2 and 7-105.9 and Rule 14-210 govern notice prior to

a foreclosure sale. Those provisions require that notice be afforded to interested parties

in three ways: publication in a newspaper, first class mail, and certified mail. Md. Rule

14-210(a) & (b). With regard to the mailings, Rule 14-210 states, in pertinent part:

Before selling the property subject to the lien, the individual authorized to

make the sale shall also send notice of the time, place, and terms of sale (1)

– Unreported Opinion –

by certified mail and by first-class mail to (A) the borrower, (B) the record

owner of the property, and (C) the holder of any subordinate interest in the

property subject to the lien and (2) by first-class mail to “All Occupants” at

the address of the property. . . . The mailings shall be sent not more than 30

days and not less than ten days before the date of the sale.

Md. Rule 14-210(b); see also RP § 7-105.2 (requiring notice to record owner of property

at not more than thirty days and not less than ten days prior to foreclosure sale by first

class mail and certified mail); RP § 7-105.9 (requiring notice to occupants of residential

property not more than thirty days and not less than ten days prior to foreclosure sale).

In Griffin v. Bierman, 403 Md. 186 (2008), the Court of Appeals considered a

challenge to this notice scheme. There, the property owner, Griffin, alleged that she had

failed to receive “advance notice of the [foreclosure] sale” and that this amounted to a

violation of her “right to due process of law, guaranteed by the Fourteenth Amendment to

the United States Constitution and Article 24 of the Maryland Declaration of Rights.” Id.

at 195-96. The Court first considered Griffin’s argument as a facial challenge to the

notice scheme. It explained that the notice scheme contemplates multiple means of

notifying a property owner, tenant, or other occupant of a residential property prior to a

foreclosure sale, including first class mail, certified mail, and publication, and that these

methods, taken together, “are calculated reasonably to inform interested parties of the

pending foreclosure action.” Id. at 212.

The Court then addressed Griffin’s argument that the notice scheme was

unconstitutional “as-applied” in her case. Id. at 208. It noted that the circuit court had

found as a fact that Griffin “did not receive actual notice” prior to the foreclosure sale,

– Unreported Opinion –

relying on evidence that the certified mailings all were returned unclaimed and crediting

Griffin’s testimony at the exceptions hearing that she never had received any of the

notices sent by first class mail. Id. The Court opined, however, that it is “well settled

that due process of law is not violated in application because the interested party did not

receive actual notice.” Id. Given that there was no dispute that the trustees had sent

notice in compliance with the law, the Court held that Griffin was not denied due process

of law because she never received those notices.

In the instant case, Dowe contends the trial court erred by overruling his

exceptions because the evidence showed that no first class mailings were sent to the

Property and that the certified mailings all were “undeliverable as addressed.” With

respect to the former argument, he asserts that because the Tracking Report showed that

the first class mailings sent to the Property were “Unclaimed” these mailings could not

have been sent by first class mail. With respect to the certified mailings, he points to the

USPS tracking reports he attached to his exceptions as evidence that the certified

mailings sent to the Property address all were deemed “undeliverable as addressed.”

According to Dowe, the Substitute Trustees were obligated to take additional steps to

notify him of the pending foreclosure sale in light of the undelivered mailings.

The Substitute Trustees respond that there was no procedural defect in the sale

because they sent the notices required by law. Moreover, they note that Dowe does not

even allege that he was actually unaware of the foreclosure sale, only that he was not

afforded proper notice by the Substitute Trustees.

– Unreported Opinion –

As discussed, the Substitute Trustees filed an affidavit averring that they sent the

notices required under Rule 14-210 and the RP Article. The Tracking Report attached to

the Substitute Trustees’ Report of Sale showed that notices of the pending sale were sent

by first class mail and certified mail on January 31, 2014, to all occupants of the

Property, to Lillian at the Property, to Henry’s estate at the Property, and to Henry’s

estate “c/o Anthony Dowe” at the Property. For the reasons stated in Griffin, even if

Dowe did not receive any of the first class mailings or the certified mailings sent to the

Property, the Substitute Trustees afforded him the notice required by law. Those notice

procedures were “calculated reasonably to inform interested parties of the pending

foreclosure action” and were not violative of Dowe’s due process rights. Griffin, 403

Md. at 212.

Thus, the circuit court did not err by overruling Dowe’s exceptions and

ratifying the sale.

FINAL ORDER OF RATIFICATION

AFFIRMED. COSTS TO BE PAID

BY THE APPELLANT.

It is worth noting that, by Dowe’s own admission, he was on actual notice of the sale by

means of the legal mailer. Thus, it is difficult to imagine how he could be prejudiced by

any deficiency in the notices sent by the Substitute Trustees.