Monday, January 24, 2011

Case Review: Maryland Appeals Court Upholds MERS-related Foreclosure

This is a guest post from Elisa Kerr, one of the six attorneys we have on staff here at Mid-Atlantic Settlement Services. In light of some recent successful challenges to foreclosures in other states, it's important to obtain an understanding of how Maryland courts will respond to the various foreclosure issues that are surfacing today, such as MERS, imperfect assigning documentation, and the inability of a foreclosing entity to provide an original note. This case should give us our first glance at how a Maryland appeals court sees things:


In a recent decision rendered by the Maryland Court of Special Appeals (Anderson v. Burson, et al., No. 00434, Sept. Term, 2009, full case here), the Court upheld the rights of the foreclosing bank to foreclose on a property in Howard County, Maryland, finding that the Bank was a proper successor to the holder of the mortgage note and had the same rights as the original holder to enforce collection. The borrowers under the mortgage being foreclosed had challenged the foreclosure, claiming that the Bank did not have the right to foreclosure because it was not the current holder of the note. They were able to stall the foreclosure first by filing for bankruptcy protection, and then later by filing a request with the Circuit Court for a temporary restraining order to stop the foreclosure auction. The motions that were filed may have delayed the foreclosure but ultimately did not prevent the foreclosure from occurring.

What does this mean?

This case is noteworthy because it is one of the first cases to be decided since Maryland foreclosure proceedings have been put under microscopic scrutiny by our courts. In this case, the Court had been asked to review the chain of title to the promissory note under which the foreclosure lawsuit was filed. Despite the fact that the promissory note had been transferred or “assigned” a number of times, and also that the original note had been misplaced, the Court still found that the Substitute Trustees and Bank had produced ample evidence that the Bank foreclosing was, indeed, the holder of the note and had the right to foreclose.

Why is this important?

It is an indication that the Court was not interested in upsetting the status quo – that is to say, that the way in which assignments of mortgages and deeds of trust have been handled in Maryland in the past remains acceptable to the Court. Further, it is an indication that the Court has no plans to “upset the apple cart” by imposing additional recording requirements on banks that might slow or stop the sale of properties that are or have been recently in foreclosure. We have seen hiccups on foreclosure sales in other states so this decision is refreshing in that the courts are presenting a favorable opinion on how foreclosures are and have been completed in MD.


To read the case in its entirety, click here. We'll continue to keep you apprised of what's new with respect to foreclosures in this region.