Dates v. Harbor Bank

667 A.2d 1007, 107 Md. App. 362, 1995 Md. App. LEXIS 196
CourtCourt of Special Appeals of Maryland
DecidedDecember 5, 1995
DocketNo. 371
StatusPublished
Cited by3 cases

This text of 667 A.2d 1007 (Dates v. Harbor Bank) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dates v. Harbor Bank, 667 A.2d 1007, 107 Md. App. 362, 1995 Md. App. LEXIS 196 (Md. Ct. App. 1995).

Opinion

CATHELL, Judge.

This case deals with whether a bankruptcy petition, and its attendant stay, filed by an individual, can prevent the foreclosure sale of property owned by a corporate entity in which the petitioning individual claims an “unspecified” financial interest, and for which the petitioning individual is a guarantor of the debt secured by the subject property. This implicates significant interests on the part of the property owner, the mortgagee, and the State: The owner may be divested of all right, title, and interest in the property. The mortgagee’s concerns lie in protecting its right to foreclose upon default and in protecting its position adequately. The State, although not a party to the proceedings, has a significant interest in the continued vitality of the foreclosure sale process.

Appellants, Dates Real Estate Ltd. (DRE), its president, Victor Dates (Victor), and Malcolm Dates Jr. (Malcolm), appeal the denial by the Circuit Court for Baltimore City (Kaplan, J., presiding) of what the court considered an untimely motion to set aside the foreclosure sale by appellee, the Harbor Bank of Maryland (the Bank), of certain property owned solely by DRE. The court cited as the basis for its denial appellants’ failure to show cause, by the date set forth in the published notice therefore, why the sale should not be ratified. Appellants present the following questions on appeal:

I. Did the court err by dismissing [appellants’] Motion to Set Aside Foreclosure and Assess Damages?
II. Could compensatory and punitive damages be assessed against Harbor Bank?

The Facts

DRE,1 a Maryland corporation, by signature of its president, Victor Dates, executed a promissory note (the Note) in favor of the Bank in the amount of $35,000. The Note was [367]*367secured by a Deed of Trust, also signed by Victor in his corporate officer capacity, in which DRE granted to the Bank a lien on two parcels of property owned by the company, located at 4305 and 4307 York Road in Baltimore. Contemporaneous with the execution of the Note and Deed of Trust, both Victor and Malcolm executed a Guaranty, personally guaranteeing payment of the Note.

In January of 1994, the Bank notified appellants of a planned foreclosure sale of the two properties due to DRE’s failure to make the payments required by the Note. The Circuit Court for Baltimore City entered a Decree of Sale of Mortgage Premises on February 4, 1994, thereby permitting the Bank to proceed with the foreclosure sale. On February 23, 1994, the Bank conducted the sale and the property was sold. At no time relevant hereto did the Bank seek a deficiency decree against the corporation, nor has the Bank, insofar as we can discern from the record, sought to require the guarantors to perform under the guarantee. This is probably because the foreclosure sale did not result in a deficiency in the first instance.

On the day prior to the foreclosure sale, Malcolm filed a Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the District of Maryland.2 Pursuant to 11 U.S.C. §§ 362, 1301,3 the Bankruptcy Court issued a stay, thereby protecting Malcolm from the actions of his creditors. Notice of the filing and the stay was afforded to the Bank. Nonetheless, as stated, the sale proceeded.

The circuit court scheduled ratification of the foreclosure sale for April 4, 1994, and notice to that effect was published as required by statute. With no exceptions to the sale having been made within the statutorily prescribed period, the court [368]*368entered a Final Order ratifying the sale on April 27, 1994. It is around this time that DRE located a purchaser of its own for the subject properties. DRE requested that the Bank halt the foreclosure proceedings, and allow it to complete its private sale and satisfy the indebtedness out of the proceeds. As a further step, Malcolm filed with the Bankruptcy Court, on May 17, 1994, a Debtor’s Motion to Dismiss Case as to his bankruptcy case whereby he voluntarily withdrew his bankruptcy petition, and the stay was lifted. The Bank ultimately rejected DRE’s request.

Nearly seven months after ratification of the sale, on November 17, 1994, appellants filed a Motion to Set Aside Foreclosure and Assess Damages. In their Motion, appellants conceded that DRE was the owner of the subject property and that DRE had become delinquent in its payments on the Note. Appellants argued, nonetheless, that the automatic stay issued upon the filing of Malcolm’s Chapter 13 bankruptcy petition barred the foreclosure sale.

At oral argument, appellant proffered for the first time that the proceedings should have been stayed because Malcolm had listed either an ownership interest in the property, or his guarantee obligation, on various bankruptcy schedules. As we have indicated, while he may have owned stock in the corporation, it, not he, owned the property at issue. In any event, appellants did not file these alleged schedules at the trial. Thus, it was entirely appropriate for the trial court to resolve the issue without consideration of such schedules, regardless of appellants’ counsel’s broad based assertions. If Malcolm, in fact, listed the corporation’s property in his estate, which we have no way of knowing, it would have been, as we shall indicate, improper for him to have done so. The property was not part of his estate.

Appellants thereafter sought to have the sale voided and to have damages assessed against the Bank. As previously stated, on January 9, 1995, the circuit court issued an order denying appellants’ motion as untimely, given their failure to [369]*369show cause why the sale should not be ratified by the date set in the notices. This appeal is from that order.

Discussion

We note, initially, that, once a mortgage foreclosure sale has been finally ratified, the validity of the sale is res judicata, and, in order to have the sale set aside, appellants must show either fraud or illegality. Ed Jacobsen, Jr., Inc. v. Barrick, 252 Md. 507, 511, 250 A.2d 646 (1969). In an attempt to show such illegality, appellants correctly point out that actions taken in violation of an automatic stay applicable to a property are void ab initio. They go on to argue that, because the Bank sold the subject properties after the filing of Malcolm’s bankruptcy petition, which triggered the stay, the Bank thereby violated the stay. What appellants failed to show, however, is that the stay attendant to Malcolm’s Chapter 13 petition was operative against these properties—properties titled to DRE. We explain.

The initiation of a case in bankruptcy, accomplished by the filing of a petition, triggers several occurrences. First, the filing creates the bankruptcy estate, “which is a new and different entity from the debtor.” In re DeLuca, 142 B.R. 687, 691 (Bankr.D.N.J.1992). As Malcolm’s bankruptcy petition was filed under Chapter 13, §§ 541 and 1306 of the Bankruptcy Code delineate the scope of the estate. Section 541 provides generally that “all legal or equitable interests of the debtor ... as of the commencement of the case,” wherever located and by whomever held, are part of the debtor’s estate. To this, § 1306 adds “all property ...

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Bluebook (online)
667 A.2d 1007, 107 Md. App. 362, 1995 Md. App. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dates-v-harbor-bank-mdctspecapp-1995.