Maryland Denies Due Process in Foreclosure Actions
The due process clause of the 14th Amendment did not always exist. Indeed, the only federal rights of due process are contained in the Fifth Amendment to the Constitution - "nor be deprived of life, liberty, or property, without due process of law. . ." The problem was that the Fifth Amendment only applied to the federal government. The states could freely violate citizens' Fifth Amendment rights, that is - until the 14th Amendment. The part of the 14th Amendment pertinent to this article reads "nor shall any State deprive any person of life, liberty, or property, without due process of law."
Due process rests upon notice and an opportunity to be heard. That is, you have a right to be notified when any action is taken against you and you have a right to be heard in court. The question in my mind is whether it will take another constitutional amendment to force the courts to recognize that homeowners have due process rights.
In Maryland, a party facing foreclosure has fifteen (15) days to respond to the papers that he gets from the Substitute Trustee. How does the homeowner know that he only has fifteen (15) days to respond? He doesn't! In every other proceeding in Maryland where a natural person or corporate entity is made a party to an action that defendant must be notified of the court action by serving him with a summons. A summons is an official court document that informs the defendant that an action has been filed against him and that he has a certain number of days (in Maryland, 30 days) to answer the claims made against him.
However, in a foreclosure action the only thing that the homeowner gets are copies of papers that have been allegedly filed with the court, may contain a case caption, but most often no case number. There is no official notice from the court. There is no notice that the landowner can lose his property if he does not act immediately.
In all other actions, if the defendant does not respond to the complaint, the plaintiff must ask the court for an order stating that the defendant is in default. The court issues an order of default and serves the order of default on the defendant. The defendant has thirty (30) days to vacate the order of default.
In a Maryland foreclosure action, if the defendant fails to respond within the fifteen (15) days but then does respond, the defendant has to "show cause" why the court should accept his response. Some courts will actively accept a late response, while others routinely deny such a request regardless of the circumstances.
I recently had a case where the entity allegedly holding the note did not exist. Instead of throwing the case out of court because the plaintiff's agent did not exist, the judge allowed the plaintiff to sell the subject property. The reason? Because the defendant did not file within the 15 days.
We are appealing this case because it is a travesty of justice.
