Goshen Run HOA v. Cisneros

223 A.3d 917, 467 Md. 74

• Court: Court of Appeals of Maryland
• Decided: January 27, 2020
• Docket: 3/19
• Status: Published

Opinion

Goshen Run Homeowners Association, Inc. v. Cumanda Cisneros, No. 3, September Term, 2019, Opinion by Booth, J.

HOMEOWNERS ASSESSMENTS – CONSUMER PROTECTION ACT. Homeowners association assessments fall within the broad definition of “consumer debt” under the Consumer Protection Act, Maryland Code, Commercial Law Article (“CL”), § 13- 301, et seq. Moreover, a promissory note containing a confessed judgment clause executed for the purpose of memorializing payment of delinquent homeowners assessments falls squarely within the definition of “consumer credit” under the Consumer Protection Act.

COLLECTION PROCEEDINGS – CONFESSED JUDGMENTS. Under the plain language of CL § 13-301(12), the Consumer Protection Act forbids the use of all confessed judgment clauses in contracts related to consumer transactions. A creditor cannot circumvent the protections afforded to a debtor under the Consumer Protection Act by inserting language in the confessed judgment clause, which purports to preserve a debtor’s legal defenses.

RULES OF PROCEDURE – DISMISSAL OF COMPLAINT. Where a homeowners association lacked the legal authority to file a confessed judgment complaint, the appropriate remedy under Maryland Rule 3-611(b) was dismissal of the case. Although the association may be able to file a separate breach of contract claim under a promissory note by severing the confessed judgment clause from the balance of the note, it was improper under the circumstances to file such an action within the unlawful confessed judgment action. Circuit Court for Montgomery County Case No.: 9842D Argued: September 5, 2019 IN THE COURT OF APPEALS

OF MARYLAND

No. 3

September Term, 2019

GOSHEN RUN HOMEOWNERS ASSOCIATION, INC.

v.

CUMANDA CISNEROS

Barbera, C.J. McDonald Watts Hotten Getty Booth Raker, Irma S., (Senior Judge, Specially Assigned),

JJ.

Opinion by Booth, J. Hotten, Getty and Raker, JJ., dissent. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-06-30 14:25-04:00

Filed: January 27, 2020 Suzanne C. Johnson, Clerk Confessed judgments derive from the ancient legal device of a cognovit note, in

which a debtor consents in advance to the holder obtaining a judgment without notice or a

hearing. For centuries, the cognovit process has been the subject of much criticism. The

United States Supreme Court has noted that the cognovit method has been described as

“the loosest way of binding a man’s property that was ever devised in any civilized

country.” D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 177 (1972) (citations omitted).

In Maryland, confessed judgments have been disfavored and have been viewed

with circumspection. Given the ease with which a creditor may obtain a confessed

judgment and the potential for fraud and abuse, we have liberally considered attacks on

confessed judgments. Although confessed judgments have been permitted in the

commercial context, the General Assembly prohibits their use in certain consumer

transactions. Through Maryland’s Consumer Protection Act (“CPA”), the General

Assembly has determined that the “use of a contract related to a consumer transaction

which contains a confessed judgment clause that waives a consumer’s right to assert a

legal defense to an action” constitutes an unfair, abusive, or deceptive trade practice and

is therefore prohibited. Maryland Code, Commercial Law Article (“CL”), § 13-301(12)

(2013).

Homeowners associations (“HOAs”) are often placed in a difficult situation of having

to undertake collection efforts against lot owners in their communities for delinquent

homeowners assessments. To address the problem, the General Assembly has provided

HOAs with multiple collection tools, which are codified in the Maryland Homeowners

Association Act, Maryland Code, Real Property Article (“RP”), § 11B-101, et seq. (the “HOA Act”). Specifically, the HOA Act permits homeowners associations to collect

delinquent assessments through both in rem proceedings under the Maryland Contract Lien

Act, as well as in personam proceedings at law.

In this case, we must decide whether a confessed judgment is another enforcement

tool that a HOA has at its disposal when seeking to collect delinquent HOA assessments,

costs, and attorney’s fees. For the reasons set forth in this opinion, we conclude that the

General Assembly has not included this enforcement tool in the box. Collection of HOA

assessments falls within the broad purview of the Consumer Protection Act, which prohibits

the use of confessed judgment clauses for the collection of consumer debts.

I. BACKGROUND AND PROCEEDINGS BELOW

The Goshen Run Village subdivision (“Goshen Run”) is a residential community

located in Montgomery County, Maryland. In December 1983, the developer of Goshen

Run recorded a Declaration of Covenants and Restrictions (“Declaration”) in the land records

of Montgomery County, which imposed certain covenants and restrictions upon the lots and

conferred certain privileges and obligations upon the lot owners within the subdivision.

Goshen Run Homeowners Association

The Goshen Run Homeowners Association (“Association”) was established as the

governing body to carry out the powers and duties set forth in the Declaration. The Board

of Directors of the Association is required to adopt an annual operating budget for the

Association and may establish annual assessments to cover the costs of maintaining,

2 repairing, and replacing the common areas and community facilities,1 as well as any taxes

and assessments imposed upon the Association.

Under the Declaration, the Board has the authority to levy assessments on each lot

within the subdivision. If a lot owner does not pay an assessment levied under the

Declaration, the Association has multiple collection remedies at its disposal. First, the

delinquent amount, together with interest and the cost of collection, becomes a continuing

lien on the lot belonging to the member against whom the assessment has been levied.

Declaration, Article VI, Section 1. In addition, the Association may file a suit against the

delinquent lot owner to recover a money judgment for the non-payment of the amount

assessed. Id. The Board has the authority, by resolution, to establish an interest rate for

delinquent assessments, and to impose a late charge. The Declaration further provides

that:

[T]he Association may bring an action at law against the member personally obligated to pay the same, or foreclose on the Lien against the lot or lots then belonging to said member in the manner now or hereafter provided for the foreclosure of mortgages, deeds of trust or other liens on real property in the State of Maryland containing a power of sale or consent to a decree, and subject to the same requirements, both substantive and procedural, or as may otherwise from time to time be provided by law, in either of which events, interest, costs and reasonable attorneys’ fees of not less than twenty percent

The Declaration describes “common areas” and “community facilities,” which are 1

owned or leased by the Association or are otherwise available to the Association “for the use and enjoyment of its members.” Article IV, Section 1 of the Declaration creates a right of enjoyment and an appurtenant easement in the common areas for the benefit of each member, subject to certain terms and conditions: “Every member shall have a right and easement of enjoyment in and to the common areas and community facilities and such easement shall be appurtenant to and shall pass with fee title to every lot . . . .”

3 (20%) of the sum claimed shall be added to the amount of each assessment.

Declaration, Article VI, Section 1.

Ms. Cisneros and the Confessed Judgment Promissory Note

Cumanda Cisneros purchased a home in Goshen Run for her principal residence in

2004. Upon purchasing her lot, Ms. Cisneros became obligated to comply with the

Declaration. Pursuant to its authority in the Declaration, the Association imposed

assessments upon the lots within the subdivision, including Ms. Cisneros’s property.

In 2014, Ms. Cisneros became delinquent in her HOA assessment payments and her

delinquent account was turned over to the Association’s law firm, Andrews & Lawrence

Professional Services, LLC (“Andrews”), to pursue collection of the delinquent amount.

During the collection process, Ms. Cisneros contacted Andrews and proposed a plan to pay

her debt in monthly installments of $126 over approximately six years. The Association’s

Board accepted the deferred repayment plan and agreed to forbear collection action.

Andrews prepared a promissory note (“Promissory Note” or “Note”) and mailed it to Ms.

Cisneros with instructions to return it signed and notarized within two weeks. In April

2016, Ms. Cisneros signed the Promissory Note,2 had it notarized, and returned it to the

Association’s attorneys.

2 Ms. Cisneros executed the Promissory Note with the assistance of a relative. Ms. Cisneros’s native language is Spanish. An interpreter was present at the hearings in this matter. At the hearing in the District Court of Maryland sitting in Montgomery County, Ms. Cisneros testified that she did not know what “the confessed judgment provision meant.”

4 The Promissory Note, which was titled “Promissory Note and Mortgage,” was for

the repayment of the amount of $8,733.97, payable in 79 installments. The document also

included a mortgage secured by Ms. Cisneros’s Goshen Run property. The debt evidenced

by the Promissory Note was expressly recited as “delinquent homeowners association

assessments on [Ms. Cisneros’s Goshen Run property] accrued through March 2016 . . . .”

The Promissory Note also referenced future HOA assessments that would come due during

the term of the payment period of the Note and recited that the failure to pay those future

assessments when they came due would trigger a default of the Promissory Note. In the

event of a default, all subsequent fees owed after the execution of the Note would become

due and payable and be enforceable by confession of judgment under the Promissory Note.

The Promissory Note contained the following provision:

D. Confession of Judgment: Upon default, the undersigned, CUMANDA CISNEROS, hereby empowers and authorizes any attorney to appear for the undersigned in any court within the United States of America or elsewhere, and confess judgment, or a series of judgments, against the undersigned in favor of GOSHEN RUN HOMEOWNERS ASSOCIATION, INC., for such amounts as may be due and owing thereunder, including the costs of the proceeding and twenty percent (20%) of the outstanding balance as attorney’s fees, or such amount as the court shall deem reasonable.

E. Non-Waiver of Legal Defenses. I, CUMANDA CISNEROS, do not waive any legal defenses to any action to enforce this promissory note and mortgage.

Proceedings Below

Ms. Cisneros defaulted on the Promissory Note. In July 2016, the Association filed

a confessed judgment complaint in the District Court of Maryland sitting in Montgomery

5 County pursuant to Maryland Rule 3-611, attempting to recover the debt memorialized in

Ms. Cisneros’s Promissory Note. The complaint consisted of the district court’s standard

form titled “Complaint for Judgment by Confession (Md. Rule 3-611).” As the basis for

its complaint, the Association attached the Promissory Note. The standard attestation

contained in the affidavit portion of the complaint is required by Md. Rule 3-611(a) and

states:

8. The instrument does not evidence or arise from a consumer transaction as to which a confessed judgment clause is prohibited by Code, Commercial Law Article § 13-301.

Based on the confessed judgment complaint form, the attached Promissory Note,

and the attestation that the debt was not a consumer transaction, the district court entered

judgment in the principal amount of $5,594.17 and attorney’s fees of $300.

The Association did not serve Ms. Cisneros with the confessed judgment for more

than a year. During that time, the Association proceeded to garnish Ms. Cisneros’s bank

account and record liens against her real property. Ms. Cisneros was finally served with

the confessed judgment in December 2017.3 In January 2018, Ms. Cisneros filed a motion

After Goshen Run’s debt collection attorneys, Andrews & Lawrence Professional 3

Services, LLC (“Andrews”), issued the writ and recorded the liens against Ms. Cisneros but before they served her with the notice of confessed judgment, Ms. Cisneros initiated a class action lawsuit against Andrews in which she alleges that the practice of obtaining confessed judgments for past-due homeowners assessments pursuant to promissory notes containing confessed judgment clauses violates the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692–1692p. Ms. Cisneros filed her class action complaint in the Circuit Court for Montgomery County in October 2017, and the matter was removed to the United States District Court for the District of Maryland in December 2017. As of the date of this opinion, the matter is still pending.

6 to stay, or in the alternative, to vacate the confessed judgment in the district court.4 Ms.

Cisneros alleged that the confessed judgment was entered based upon an illegal confessed

judgment promissory note arising from a consumer transaction and consumer debt, and

therefore was required to be vacated.

In March 2018, following a hearing during which the Association acknowledged

and did not contest that the Promissory Note evidenced a consumer debt, the district court

granted Ms. Cisneros’s motion to vacate the confessed judgment. In rendering its decision,

the district court stated as follows:

After reviewing all of the memoranda and listening to the arguments of counsel[,] I concur with the Defendant in this matter. I do believe that this was definitely a consumer transaction which has been consented to but that this [was a] confessed judgment note definitely and the Defendant waived her legal defenses and for that reason I will vacate the judgment.

There were no further proceedings as part of the March 2018 hearing. After vacating

the confessed judgment, the case was set for trial. Upon receiving the trial notice, Ms.

Cisneros filed a motion to dismiss the confessed judgment complaint, arguing that Md. Rule

3-611(b) required dismissal of the complaint given the district court’s previous determination

that the confessed judgment action violated the CPA.

At the hearing on Ms. Cisneros’s motion to dismiss, the district court reaffirmed

that the confessed judgment arose from a consumer transaction and was therefore

4 Ms. Cisneros’s motion to stay was based upon the federal class action that she had initiated against Andrews. The district court denied the motion to stay but granted the motion to vacate.

7 prohibited by the CPA. The district court denied Ms. Cisneros’s motion to dismiss, and

instead severed the confessed judgment provision from the remaining terms of the

Promissory Note and permitted the Association leave to file an amended complaint and

proceed with a breach of contract action against Ms. Cisneros. The Association filed an

amended complaint for breach of contract in May 2018, seeking the same relief claimed in

the complaint for confession of judgment plus additional attorney’s fees. Following a

hearing in June 2018, the district court entered judgment against Ms. Cisneros for

$5,352.53, costs of $151, and attorney’s fees totaling $1,100.57.

In July 2018, Ms. Cisneros appealed the district court’s denial of her motion to

dismiss and the judgment entered against her to the Circuit Court for Montgomery County.

In January 2019, the circuit court entered a written opinion and order. Specifically, the

circuit court found that the payments and the collection of homeowners association dues

constituted a consumer transaction under the CPA and that the use of a confessed judgment

promissory note to collect the payments was prohibited. The circuit court held that:

Within the procedural history of this matter, the District Court consistently ruled . . . that the confessed judgment in this case is prohibited. This Court concurs with previous rulings and finds that due to the consumer transaction nature of the agreement between Goshen Run and Ms. Cisneros, the Confessed Judgment cannot stand, which required the complaint to be dismissed.

The Association filed a petition for writ of certiorari, which this Court granted.

8 II. DISCUSSION

The Association raises four questions on appeal, which we have consolidated and

rephrased for clarity as follows:5

1. Does the Consumer Protection Act apply to collection efforts by a HOA to collect delinquent HOA assessments?

2. Does § 13-301(12) of the Consumer Protection Act prohibit the use of all confessed judgment clauses in contracts related to consumer transactions?

3. Did the circuit court err when it found that the HOA’s filing of its complaint to confess judgment for the payment or collection of HOA assessments violated the Consumer Protection Act, and that therefore,

5 The questions as presented in the writ for certiorari were:

1. Does a confessed judgment clause in a promissory note/forbearance agreement involving homeowners association assessments that expressly preserves the right of the defendant to assert legal defenses, violate the Maryland Consumer Protection Act [(“CPA”), Maryland Code, Commercial Law Article, § 13-301, et seq.,]?

2. Assuming, arguendo, that homeowners association assessments are consumer debts within the meaning of the CPA, if the consideration given by a payee to a promisor in a promissory note is the forbearance of debt collection activity on the antecedent debt, does such a promissory note relate to a “consumer transaction” under the CPA?

3. Assuming, arguendo, that the answer to the first question is affirmative, was it appropriate for the district court to invoke a severability provision in the note, sever the confession clause, and proceed to trial on the merits, because the CPA does not provide the remedy of voiding contracts?

4. Did the circuit court misapply Maryland law when it determined that after a confessed judgment is vacated, it is impermissible to permit a trial on the merits on an amended complaint, as that would constitute “another bite at the apple,” and that such complaint should be dismissed pursuant to [Maryland] Rule 3-611(b)?

9 the proper procedure was the dismissal of the complaint pursuant to Maryland Rule 3-611(b)?

For the reasons set forth herein, we answer questions one and two in the affirmative.

With respect to question 3, we agree that under the procedural posture of this case,

dismissal of the unlawful confessed judgment action was appropriate. We hold that HOA

assessments fall within the broad definition of “consumer debt” under the CPA. Moreover,

the Promissory Note constituted an extension of credit to Ms. Cisneros to pay delinquent

HOA assessments, which falls squarely within the definition of “consumer credit” under

the CPA. We hold that under the plain language of CL § 13-301(12), the CPA forbids the

use of all confessed judgment clauses in contracts related to consumer transactions, and

that a creditor cannot circumvent the protections afforded to a debtor under the CPA by

inserting language in the confessed judgment clause which purports to preserve a debtor’s

legal defenses. We hold that because the Association lacked the legal authority to file a

confessed judgment complaint, the appropriate remedy under Maryland Rule 3-611(b) was

dismissal of the case. However, we hold that the dismissal of the confessed judgment

action should have been without prejudice to the Association’s right to file a separate

breach of contract action severed from the confessed judgment clause. Although the

Association may be able to file a separate breach of contract claim under the Promissory

Note by severing the confessed judgment clause from the balance of the Note, it was

improper to attempt to file such an action within the unlawfully filed confessed judgment

action.

10 A. Standard of Review

When an action has been tried without a jury, this Court reviews the action on both

the law and the evidence. Md. Rule 8-131(c). The trial court’s factual findings are

accepted unless clearly erroneous. Id. The appellate court affords no deference to the legal

conclusions of the district court and the circuit court. Friendly Fin. Corp. v. Orbit Chrysler

Plymouth Dodge Truck, Inc., 378 Md. 337, 342–43 (2003). We review their interpretations

of the relevant statutes de novo. Id. at 343. As this case involves purely questions of law,

our standard of review is de novo.

B. Parties’ Contentions6

The Association argues that HOA assessments do not constitute “consumer debt”

under the CPA. The Association asserts that, even if HOA assessments are considered

consumer debt under the CPA, “such status is of no import” because the Promissory Note

constituted a new and distinct obligation, enforceable in its own right and according to its

own terms. The Association contends that the Promissory Note is not related to a

“consumer transaction” and does not constitute the “collection of consumer debts” under

the CPA. The Association further argues that the execution of the Promissory Note for the

payment of past-due assessments does not constitute the extension of consumer credit

under the CPA. The Association characterizes the Promissory Note as a forbearance

agreement—in other words, an agreement to not engage in debt collection—which it

6 In addition to the contentions raised by the parties, the Attorney General of Maryland filed an Amicus Curiae Brief supporting the position taken by Ms. Cisneros.

11 contends cannot be considered an unfair or deceptive trade practice in the collection of

consumer debts under CL § 13-303(5).

The Association claims that, even if the collection of HOA assessments falls within

the purview of the CPA, its confessed judgment clause is not prohibited under the CPA

because CL § 13-301(12) does not prohibit the use of all confessed judgments in consumer

contracts; rather, it prohibits only a subset of confessed judgment clauses “that waive the

consumer’s right to assert a legal defense to an action.” The Association contends that it

escapes the reach of the CPA because the Promissory Note contains a clause whereby Ms.

Cisneros agreed that she did “not waive any legal defenses to any action to enforce” the

Note. The Association further contends that under the language in its confessed judgment

clause, Ms. Cisneros retains all her rights under the law to assert any defenses she wishes

to raise under Md. Rule 3-611.

Finally, the Association argues that, even if the CPA applies to its collection efforts

and its confessed judgment clause violates the CPA, it should nonetheless be permitted to

file an amended complaint within its confessed judgment suit and proceed with a breach of

contract claim under the Promissory Note with the confessed judgment clause severed from

the remainder of the agreement.

In response, Ms. Cisneros argues that HOA assessments are consumer in nature and

fall within the ambit of the CPA. She asserts that the assessments imposed by the

Association are for the care and maintenance of the Goshen Run common areas, which she

has the right to use and enjoy and from which she derives a personal benefit. As such, Ms.

Cisneros claims that the assessments fall within the broad definition of “consumer debt”

12 under the CPA because the assessments are incurred for her “personal, family, and

household needs.” Ms. Cisneros also contends that the Promissory Note constitutes an

extension of “consumer credit” under the CPA because the Note allows her to repay the

delinquent HOA assessments pursuant to a specific payment plan.

As for the enforceability of the confessed judgment clause under the CPA, Ms.

Cisneros contends that under the plain language of CL § 13-301(12), the General Assembly

intended to prohibit the use of all confessed judgment clauses in contracts related to

consumer transactions, not just a subset of confessed judgment clauses. Ms. Cisneros

further asserts that despite the language in the confessed judgment clause which purports

to preserve her ability to raise defenses to the entry of the confessed judgment, the very

essence of a confessed judgment process necessarily involves the waiver of key defenses

such as service of process, venue, and personal jurisdiction, which are minimal due process

protections.

Finally, Ms. Cisneros claims that the circuit court did not err in holding that

dismissal of the confessed judgment complaint was the appropriate remedy. She contends

that Md. Rule 3-611(b) mandates dismissal of the unlawful action. She asserts that the

Association should not be permitted to proceed on a breach of contract action severed from

the confessed judgment clause because the General Assembly intended to prohibit all

consumer contracts containing a confessed judgment clause. Accordingly, she contends

that principles of severability do not apply here.7

7 Ms. Cisneros also argues that the Association’s use of a confessed judgment is unconstitutional as applied to her circumstances under the Supreme Court’s holdings in

13 C. Analysis

To determine whether a HOA may use a confessed judgment clause to collect

delinquent HOA assessments from a lot owner, we must first determine whether the CPA

applies to the HOA’s collection efforts. Specifically, we must determine whether, under the

CPA, Ms. Cisneros is a “consumer”; whether the HOA assessments constitute “consumer

debt”; and whether the confessed judgment note constitutes an extension of “consumer

credit.” As part of our analysis, it is necessary to consider not only the language of the CPA

but also the applicable provisions of the Maryland Homeowners Association Act.

1. The Maryland Homeowners Association Act

The General Assembly enacted the Maryland Homeowners Association Act (“HOA

Act”) in 1987. See 1987 Laws of Maryland, chapter 321. In its present form, the Act is

set forth in Maryland Code, Real Property Article (“RP”), § 11B-101, et seq. (2015). The

HOA Act applies to the sale of lots that are subject to a declaration of a HOA. RP § 11B-

102. The provisions of the HOA Act extend far beyond the initial purchase of a lot or the

resale of a lot within a development. The HOA Act also provides the legislative framework

D.H. Overmyer v. Frick Co., 405 U.S. 174 (1972) and Swarb v. Lennox, 405 U.S. 191 (1972) and our holding in Billingsley v. Lincoln National Bank, 271 Md. 683 (1974). Ms. Cisneros contends that the waiver of her due process rights to notice and personal jurisdiction were not “voluntary, knowing, and intelligently made, or an intentional relinquishment or abandonment of a known right or privilege.” Overmyer, 405 U.S. at 186 (internal citations omitted). Ms. Cisneros testified through an interpreter that she did not understand what a confessed judgment clause meant. Because we hold that a HOA cannot use a confessed judgment clause to collect delinquent HOA assessments and that the appropriate remedy was dismissal of the case under Maryland Rule 3-611(b), we do not need to reach the constitutionality of the entry of a confessed judgment as applied to Ms. Cisneros.

14 under which HOAs8 operate and manage their affairs. A HOA is governed by its governing

body9 in accordance with its declaration,10 as well as other corporate documents such as its

bylaws, and rules and regulations promulgated and adopted in accordance with the

declaration and other governing documents.

The HOA Act contains provisions which address many operational and governance

aspects of a development that are subject to a HOA declaration, such as the notice and

conduct of meetings of the HOA or its governing body, requirements for maintaining books

and records of the association, and the establishment of an annual budget for repair and

maintenance of common areas. RP §§ 11B-111, 112, 112.2.

In connection with the establishment of a budget, the HOA has the authority to adopt

assessments and charges to cover the expenses for maintaining and repairing common

areas.11 Under its declaration, the homeowners association can establish and impose upon

8 “Homeowners association” is defined under the HOA Act as “a person having the authority to enforce the provisions of a declaration” and “includes an incorporated or unincorporated association.” Maryland Code, Real Property Article (“RP”), § 11B-101(i). 9 “Governing body” is defined as “the homeowners association, board of directors, or other entity established to govern the development.” RP § 11B-101(h). 10 The declaration of a HOA is the genesis of its authority. The HOA Act defines the “declaration” as: “an instrument, however denominated, recorded among the land records of the county in which the property of the declarant is located, that creates the authority for a homeowners association to impose on lots or on the owners or occupants of lots, . . . any mandatory fee in connection with the provision of services or otherwise for the benefit of some or all of the lots, the owners or occupants of lots, or the common areas.” RP § 11B-101(d)(1). 11 Under the HOA Act, “common areas” are defined as “property which is owned or leased by a homeowners association.” RP § 11B-101(b).

15 any lot, or on the owners or occupants of any lot, mandatory assessments or fees to cover

“the provision of services or otherwise for the benefit of the owners of the lots, the owners

or occupants of the lots, or the common areas.” RP § 11B-101(d)(1).

Section 11B-117(a) of the HOA Act states that, “[a]s provided in the declaration, a

lot owner shall be liable for all homeowners association assessments and charges that come

due during the time that the lot owner owns the lot.” To encourage the payment of timely

assessments, the HOA Act gives a HOA the authority to establish in its declaration or

bylaws “a late charge of $15 or one-tenth of the total amount of any delinquent assessment

or installment, whichever is greater, provided the charge may not be imposed more than

once for the same delinquent payment and may be imposed only if the delinquency has

continued for at least 15 calendar days.” RP § 11B-112.1.

With respect to enforcement, the HOA Act permits a HOA to establish provisions

in its declaration for collection of delinquent assessments through both in rem and in

personam proceedings. Section 11B-117(b) provides:

Enforcement. — In addition to any other remedies available at law, a homeowners association may enforce the payment of the assessments and charges provided in the declaration by the imposition of a lien on a lot in accordance with the Maryland Contract Lien Act.

The express language of the HOA Act authorizes the governing body of a HOA to

take enforcement action to collect delinquent assessments and charges owed by the

individual lot owners within the development. As part of its collection efforts, the HOA is

authorized to assess late charges, to impose a lien on the lot in accordance with the

16 Maryland Contract Lien Act, Md. Code, Real Property Article, § 14-201 et seq. (2013),

and to file suit against the individual lot owner for the amount of the debt owed.

In 2007, the HOA Act was amended to add RP § 11B-115, titled “Enforcement

Authority of Division of Consumer Protection.” (“2007 Amendment”). The 2007

Amendment added a specific definition of “consumer” to the HOA Act, which defines

consumer as “an actual or prospective purchaser, lessee, assignee, or recipient of a lot in a

development.” RP § 11B-115(a). The 2007 Amendment provides that the section “is

intended to provide minimum standards for protection of consumers in the State.” RP

§ 11B-115(b). The 2007 Amendment brought the HOA Act within the specific

enforcement authority of the Office of the Attorney General under the CPA. Specifically,

the 2007 Amendment states that “to the extent that a violation of any provision of this title

affects a consumer, that violation shall be within the scope of the enforcement duties and

powers of the Division of the Consumer Protection of the Office of the Attorney General,

as described in Title 13 of the Commercial Law Article.” RP § 11B-115(c).

2. Collection of HOA Assessments Falls Within the Scope of the Consumer Protection Act

The Consumer Protection Act is set forth in CL § 13-101, et seq. The purpose of

the CPA is to “set certain minimum standards for the protection of consumers across the

State . . . .” CL § 13-102(b)(1). In enacting the CPA, the General Assembly determined

that the State “should take strong protective and preventative steps to investigate unlawful

consumer practices, to assist the public in obtaining relief from these practices and to

prevent these practices from occurring in Maryland.” CL § 13-102(b)(3). The General

17 Assembly further instructed that the CPA shall be “construed and applied liberally to

promote its purpose.” CL § 13-105. To that end, the CPA prohibits all trade practices that

are unfair, abusive, or deceptive in, among other things, the collection of consumer debts.

See CL §§ 13-301(14)(iii); 13-303(5).

Section 13-303 of the CPA generally prohibits unfair, abusive, or deceptive trade

practices, and § 13-301 contains a nonexclusive list of practices that are defined to be unfair

or deceptive. Practices defined to be unfair, abusive, or deceptive include the “[u]se of a

contract related to a consumer transaction which contains a confessed judgment clause that

waives the consumer’s right to assert a legal defense to an action.” CL § 13-301(12).

Under the CPA, “consumer credit,” “consumer debts,” “consumer goods,” “consumer

realty,” and “consumer services” are defined, respectively, as “credit, debts or obligations,

goods, real property, and services which are primarily for personal, household, family or

agricultural purposes.” CL § 13-101(d)(1). Similarly, “consumer” is defined as “an actual

or prospective purchaser, lessee, or recipient of consumer goods, consumer services,

consumer realty, or consumer credit.” CL § 13-101(c). “Merchant” is defined as “a person

who directly or indirectly offers or makes available to any consumers any consumer goods,

consumer services, consumer realty, or consumer credit.” CL § 13-101(g)(1).12

12 Although the term “consumer transaction” is not expressly defined within the Consumer Protection Act, it is defined in a closely related statute—the Maryland Consumer Debt Collection Act (“MCDCA”), Md. Code Ann., Comm. Law Art. § 14-201 et seq.—as “any transaction involving a person seeking or acquiring real or personal property, services, money or credit for personal, family, or household purposes.” CL § 14-201(c).

18 Ms. Cisneros is a “consumer” under the CPA and the HOA Act

Ms. Cisneros falls within the definition of “consumer” under the CPA. She is a

purchaser and recipient of consumer services and consumer realty, which are primarily for

her household and family purposes. Ms. Cisneros also falls within the definition of

“consumer” under the HOA Act, which defines “consumer” as “an actual or prospective

purchaser, lessee, assignee, or recipient of a lot in a development.” RP § 11B-115(a).

Under the HOA Act, Ms. Cisneros is an “actual purchaser” of a lot. Immediately upon her

purchase of a lot, she became subject to the Declaration, including an obligation to pay

assessments. In other words, Ms. Cisneros was legally obligated to pay the HOA

assessments the moment her deed was signed.

HOA assessments are “consumer debt”

The HOA assessments and charges fit within the broad definition of “consumer

debt” under the Consumer Protection Act. The assessments are established to cover the

repair, maintenance, and expenses associated with the “Common Areas” and “Community

Facilities,” which are defined under the Goshen Run Declaration as “all real property

owned or leased by the Association or otherwise available to the Association for the benefit,

use and enjoyment of its members.” Declaration, Article IV, Section 1(c) (emphasis

added). Under the Goshen Run Declaration, each member has an appurtenant “right and

easement of enjoyment in and to the common areas and community facilities . . . .”

Declaration, Article IV, Section 1. As a lot owner, Ms. Cisneros has a right to use and

enjoy the common areas and community facilities, and a concomitant duty to pay the

assessments or fees—debts which are incurred “primarily for personal, household [or]

19 family . . . purposes.” CL § 13-101(d)(1). As noted above, Ms. Cisneros’s obligation to

pay the HOA assessments arose in connection with the purchase of her property, even if

the timing and amount of the particular assessment was yet to be determined. The fact that

the assessments may benefit more than a single household does not change their character

as debts incurred primarily for personal, household or family purposes.

In arriving at this conclusion, we note that several federal courts construing the

parallel federal statute, and several state supreme courts analyzing similar state consumer

protection statutes, have reached the same result. Although not binding, these cases are

instructive.

Under the federal Fair Debt Collection Practices Act (“FDCPA”), debt is defined as

“any obligation or alleged obligation of a consumer to pay money arising out of a

transaction in which the money, property, insurance, or services which are the subject of

the transaction are primarily for personal, family or household purposes, whether or not

such obligation has been reduced to judgment.” 15 U.S.C.A. § 1692a(5).

The Third Circuit was the first to construe this definition. In Zimmerman v. HBO

Affiliate Group, 834 F.2d 1163 (3d Cir. 1987), that court concluded that, to be a debt, there

must be an actual extension of credit plus a deferred payment obligation, i.e., a transaction

in which “a consumer is offered or extended the right to acquire money or property.” Id.

at 1168–69.

Several courts thereafter used Zimmerman’s “extension of credit” analysis to conclude

that condominium or HOA assessments are not debt because the unit owner is required to pay

the dues and assessments up front, prior to the association providing any services in return.

20 See, e.g., Azar v. Hayter, 874 F. Supp. 1314 (N.D. Fla. 1995) (condominium association fees);

Nance v. Petty, Livingston, Dawson & Devening, 881 F. Supp. 223 (W.D. Va. 1994) (HOA

dues); see also Bryan v. Clayton, 698 So. 2d 1236 (Fla. Dist. Ct. App. 1997) (holding that

condominium association fees are not debt under Florida state law).

Zimmerman’s extension of credit argument has come under sharp criticism. In

Newman v. Boehm, Pearlstein & Bright, Ltd., 119 F.3d 477, 481 (7th Cir. 1997), the court

rejected Zimmerman’s analysis, stating that “because the statute’s definition of ‘debt’

focuses on the transaction creating the obligation to pay, it would seem to make little

difference under that definition that unit owners are generally required to pay their

assessments first, before any goods are provided by the association.” The court in Newman

concluded that HOA assessments are indeed debt under the FDCPA. Id. at 481–82. The

court reasoned that:

By paying the purchase price and accepting title to their home, the [homeowners] became bound by the Declaration of Covenants, Conditions, and Restrictions of their homeowners association, which required the payment of regular and special assessments imposed by the association . . . . It is therefore clear that the obligation to pay in these circumstances arose in connection with the purchase of the homes themselves, even if the timing and amount of the particular assessments was yet to be determined.

Id. at 481. The court in Newman further explained that:

There can be little doubt that the subject of those transactions [the purchase of a home] had a personal, family, or household purpose. More specifically, however, we also believe that the assessments themselves satisfy the statutory requirement. To the extent that the assessments were to be used to improve or maintain commonly-owned areas, that purpose, too, qualifies as “personal, family, or household.” In our view, when a

21 special assessment is used to pay for services like snow removal from a common walkway or landscaping of a common yard, the assessments are for a household purpose even if more than a single household benefits.

Id.

Since then, nearly every state or federal court that has considered the issue has

concluded that HOA assessments or dues are properly classified as consumer debt. See,

e.g., Agrelo v. Affinity Mgmt. Servs., LLC, 841 F.3d 944, 951 (11th Cir. 2016) (holding

that the term “debt” under both the FDCPA and the Florida Consumer Collection Practices

Act was broad enough to encompass homeowners’ obligations to pay a fine imposed by a

HOA pursuant to the association’s governing documents); Haddad v. Zelmanski, Danner

& Fioritto, PLLC, 698 F.3d 290, 291 (6th Cir. 2012) (holding that condominium owner’s

obligation to pay assessments constituted “debt” under the FDCPA and the Michigan Debt

Collection Practices Act); Ladick v. Gemert, 146 F.3d 1205, 1206-7 (10th Cir. 1998)

(concluding that an assessment owed to a condominium association qualifies as ‘debt’

within the meaning of the Fair Debt Collection Practices Act based upon the express

finding that “although the assessment at issue here is used to maintain and repair the

common area, it nevertheless has a primarily personal, family, or household purpose”);

Taylor v. Mount Oak Manor Homeowners Ass’n, 11 F. Supp. 2d 753, 755 (D. Md. 1998)

(concluding that HOA assessments are “debts” under the FDCPA); Garner v. Kansas, No.

98-1274, 1999 WL 262100, at *2 (E.D. La. 1999) (“Upon review of the FDCPA and the

case law discussing the issue, the Court concludes that condominium fees do constitute

‘debts’ under the FDCPA.”); Caron v. Charles E. Maxwell, P.C., 48 F. Supp. 2d 932, 934

22 (D. Ariz. 1999) (adopting Newman reasoning that HOA assessments are collected in order

to improve and maintain commonly owned areas by each unit owner, which directly benefit

each household in the development. As a result, the assessments have a “personal, family,

or household purpose”); Thies v. Law Offices of William A. Wyman, 969 F. Supp. 604, 608

(S.D. Cal. 1997) (applying the Newman rationale and concluding “homeowner association

fees for maintenance and improvement of common areas within a housing development

are a service primarily for personal, family, and household purposes”); Reid v. Ayers, 138

N.C. App. 261, 264 (N.C. 2000) (holding that HOA assessments constitute “debt” under

the North Carolina Debt Collection Act); Loigman v. Kings Landing Condo. Ass’n, 324

N.J. Super. 97, 105–07 (N.J. Ch. Div. 1999) (holding that condominium assessments fall

within the scope of the FDCPA and that the association’s attorney violated the FDCPA by

failing to halt its collection efforts with respect to unpaid assessments after the unit owner

questioned and sought verification of the amount).

Our holding that HOA assessments constitute consumer debt because they are

incurred primarily for personal, household, and family purposes is consistent with the

majority of the federal courts interpreting similar language under the FDCPA, as well as

state courts interpreting similar consumer protection statutes.

The Promissory Note constituted an extension of “consumer credit”

In addition to delinquent HOA assessments constituting “consumer debt” under

the CPA, the Promissory Note also constituted an extension of credit to Ms. Cisneros to

pay the HOA assessments, which falls squarely within the definition of “consumer credit”

under the CPA. Whether a transaction involves a consumer good, service, or loan

23 depends upon the purpose for which a good, service, or loan is used. See Boatel Indus.,

Inc. v. Hester, 77 Md. App. 284, 303 (1988). As discussed above, the CPA defines

“consumer credit” as credit “primarily for personal, household, family, or agricultural

purposes.” CL § 13-101(d)(1).

The CPA’s definition of “consumer credit” is consistent with the definition of

“credit” and “extension of credit” in the context of other consumer debt statutes codified

in the Commercial Law Article. See Maryland Equal Credit Opportunity Act, CL § 12-

701(d) (“‘Credit’ means the right guaranteed by a creditor to a debtor to: (1) Defer payment

of a debt; (2) Incur a debt and defer its payment; or (3) Purchase property or services and

defer payment for it.”); see also Maryland Credit Services Businesses Act, CL § 14-1901(f)

(“‘Extension of credit’ means the right to defer payment of debt or to incur debt and defer

its payment, primarily for personal, family, or household purposes.”). Given its broad

language, we read CL § 13-101(d) to apply generally to transactions in which repayment

of personal, household, family, and agricultural debts are deferred.

The language in the Promissory Note clearly reflects that it consists of an extension

of credit for the payment of HOA assessments—a debt incurred by Ms. Cisneros for

personal, household and family purposes:

For value received and delinquent homeowners association assessments on the unit at … (the “Subject Property”) accrued through March 2016, the undersigned, Cumanda Cisneros, (the PROMISSOR), promise(s) to pay to the order of GOSHEN RUN HOMEOWNERS ASSOCIATION, INC., the sum of EIGHT THOUSAND SEVEN HUNDRED THIRTY-THREE DOLLARS AND NINETY-SEVEN CENTS ($8,733.97), by SEVENTY-NINE (79) payments as follows: . . .

24 On its face, the Promissory Note is comprised of Ms. Cisneros’s acknowledgment of

and agreement to repay the delinquent HOA assessments under a specific plan. As such, the

Promissory Note is an extension of credit to Ms. Cisneros. Cf. Schinnerer v. Maryland Ins.

Admin., 147 Md. App. 474, 492–93 (2002) (recognizing that promissory notes made by an

insurance agent to the order of the insurance company to pay premiums collected after they

were due constituted an extension of credit), cert denied Schinnerer v. Maryland Ins. Admin.,

373 Md. 408 (2003). Contrary to Goshen Run’s assertions, the incorporation of the past-due

HOA assessments into the Promissory Note did not transform the underlying consumer

nature of the debt. Accordingly, the Promissory Note constitutes an extension of “consumer

credit,” which falls within the purview of the Consumer Protection Act.

In conclusion, we hold that the collection of HOA assessments falls within the

purview of the CPA.13 The HOA assessments are imposed for the maintenance of common

13 Our holding that the collection of HOA assessments falls within the scope of the CPA is consistent with our decision in MRA Property Management, Inc. v. Armstrong, 426 Md. 83, 112 (2012). In MRA, we held that a condominium association could be liable under the CPA for providing misleading budgets—including assessments—to prospective condominium purchasers. The Court rejected the condominium management company’s argument that its compliance with the disclosure obligations of the Maryland Condominium Act, Md. Code, Real Prop. Art. § 11-101 et seq. insulated them from liability for false and deceptive trade practices. The Court opined that both statutes protected prospective purchasers of condominium units:

The Maryland Condominium Act, in Section 11-135, creates duties for the [property management company] and the Association in the sale of a condominium unit. The Consumer Protection Act, on the other hand, establishes boundaries beyond which the [property management company] and the Association may not go, unless they wish to be liable for deceptive or unfair trade practices. The Maryland

25 areas, which Ms. Cisneros has the right to use and enjoy. She became obligated to pay

these debts the moment her deed was signed. She is the purchaser of realty (her personal

residence) and consumer services (the maintenance of the common areas over which she

has an easement and a right to use and enjoy). Ms. Cisneros falls within the definition of

“consumer” under both the HOA Act and the CPA. The assessments fall within the broad

definition of “consumer debt” under the CPA because they are debts primarily incurred for

her personal, household, and family purposes. Additionally, the Promissory Note

constituted an extension of credit to pay the HOA assessments. Through the Promissory

Note, the Association has extended credit for her to pay the HOA assessments pursuant to

a payment plan.

3. Enforceability of Confessed Judgment Note Under the Consumer Protection Act

Having determined that the Consumer Protection Act applies to the collection of

Ms. Cisneros’s HOA assessments, we must now determine whether the Association’s

attempt to collect this debt under the confessed judgment clause of the Promissory Note

violated the CPA.

The CPA prohibits all trade practices that are unfair, abusive, or deceptive in, among

other things, the collection of consumer debts. See CL §§ 13-301(14)(iii); 13-303(5).

Section 13-303 of the CPA generally prohibits unfair, abusive, or deceptive trade practices,

Condominium Act requires disclosures, while the Consumer Protection Act mandates that those disclosures not be deceptive.

Id. at 112–13.

26 and Section 13-301 contains a nonexclusive list of practices that are defined to be unfair or

deceptive. Golt v. Phillips, 308 Md. 1, 8–9 (1986). These acts and practices include the

“[u]se of a contract related to a consumer transaction which contains a confessed judgment

clause that waives the consumer’s right to assert a legal defense to an action.” CL § 13-

301(12).

The Association argues that, under the CPA, not all confessed judgment clauses are

prohibited. Rather, the Association’s position is that, under the plain language of CL § 13-

301(12), only confessed judgment clauses “that waive the consumer’s right to assert legal

defenses” are considered unfair or deceptive and therefore unlawful under CL §13-303(5).

According to the Association, the confessed judgment provision contained in the

Promissory Note is not an unfair or deceptive trade practice under the CPA because the

Note contained the following provision immediately after the confessed judgment clause:

E. Non-Waiver of Legal Defenses. I, CUMANDA CISNEROS, do not waive any legal defenses to any action to enforce this promissory note and mortgage.

The Association contends that under this provision, Ms. Cisneros retained all her

rights under the law to assert defenses to the enforcement of the Note by confession of

judgment. Accordingly, the Association argues that the confessed judgment clause

contained in the Promissory Note does not violate the CPA.

Ms. Cisneros argues that the confessed judgment provision in the Promissory Note

violates the CPA. Ms. Cisneros contends that the Association’s attempt to avoid the CPA

by adding subsection E. to the Note, which purports to preserve Ms. Cisneros’s defenses,

27 is meaningless because the very nature of the confessed judgment process necessarily

involves a waiver of significant legal defenses.

Before we analyze the language set forth in CL § 13-301(12), it is instructive to

provide some background related to confessed judgments, as well as the process for

obtaining a confessed judgment under the Maryland Rules of Procedure.

Confessed Judgments—Background

Confessed judgments derive from the ancient legal device known as the “cognovit

note,” dating back to at least William Blackstone’s time, by which the debtor consents in

advance to the holder’s obtaining a judgment without notice to the debtor or a hearing.

Overmyer, 405 U.S. at 176. In Schlossberg v. Citizens Bank, 341 Md. 650, 655 (1996),

this Court summarized the function of a judgment by confession:

A confession of judgment clause in a debt instrument is a device designed to facilitate collection of a debt. It is a provision by which debtors agree to the entry of a judgment against them without the benefit of a trial in the event of a default on the debt instrument. As a general rule, a judgment by confession is entitled to the same faith and credit as any other judgment.

(internal citations omitted). However, given the ease with which a creditor may obtain a

confessed judgment, we have been liberal in considering attacks on confessed judgments.

Specifically, we have concluded that:

Because the widespread practice of including a provision authorizing a confessed judgment in promissory notes lends itself to fraud and abuse . . . this Court has made clear that judgments by confession are to be “‘freely stricken out on motion to let in defenses.’”

28 Schlossberg, 341 Md. at 655 (citing Keiner v. Commerce Trust Co., 154 Md. 366, 370

(1927) (citation omitted)). Even in business transactions involving commercial debts, we

have recognized that “‘the practice of including in a promissory note a provision

authorizing confession of judgment lends itself far too readily to fraud and abuse.’” Pease

v. Wachovia SBA Lending, Inc., 416 Md. 211, 230–31 (2010) (quoting Garliss v. Key Fed.

Sav. Bank, 97 Md. App. 96, 103 (1993) (citing Keiner, 154 Md. at 366)).

The ability for the confessed judgment process to lead to fraud, abuse, and unfair

results is obvious from the nature of the proceeding. Unlike a typical civil action, a

confessed judgment is entered prior to service on the defendant and without a trial. See

Md. Rule 2-611; 3-611. It is entirely ex parte. Although the rules provide a mechanism

for the defendant to move to open, vacate, or modify the judgment within 30 days after

service of the notice of a judgment,14 the debtor’s defenses are limited. See NILS, LLC v.

Antezana, 171 Md. App. 717, 728–29 (2006) (noting that meritorious defenses that can be

raised by a defendant in a post-judgment attack pursuant to Md. Rule 2-611(c) include only

the execution of the note itself and the amount due).

Under the confessed judgment procedure, all the defendant’s pre-judgment defenses

are waived. For example, Md. Rule 2-322 sets forth many legal defenses that a defendant

can raise prior to the entry of judgment, which include: lack of jurisdiction over the person,

improper venue, insufficiency of process, insufficiency of service of process, and failure

14 Maryland Rules 2-611 and 3-611 establish identical procedures in the District Court and Circuit Courts of Maryland for obtaining a confessed judgment, as well the courts’ ability to open, vacate, modify, or strike a judgment upon motion of a defendant after entry.

29 to state a claim upon which relief can be granted. Because many of these defenses provide

fundamental due process protections, case law makes clear that a confessed judgment

clause is unconstitutional unless the promisor waives his or her due process rights.

In 1972, the United States Supreme Court decided two companion cases on the same

day, both of which challenged the constitutionality of the confessed judgment process:

D.H. Overmyer v. Frick, 405 U.S. 174 (1972) (Ohio confessed judgments) and Swarb v.

Lennox, 405 U.S. 191 (1972) (Pennsylvania confessed judgments). Subsequently, in 1974,

this Court analyzed Maryland’s confessed judgment procedure in light of Overmyer and

Swarb. These cases are instructive in understanding the constitutional limitations

associated with the enforcement of confessed judgment clauses.

In Overmyer, the Supreme Court considered the constitutionality of Ohio’s

confessed judgment procedure. In that case, both parties were corporations which

bargained at arm’s length before a cognovit clause was included in a reformed contract.

The debtor argued that the cognovit process, whereby the debtor, in advance of default,

waives service of process and authorizes entry of judgment, offends the Due Process

Clause of the Fourteenth Amendment. The Supreme Court held that Ohio’s confessed

judgment procedure did not violate Overmyer’s due process rights under the Fourteenth

Amendment because the right to receive notice prior to the entry of civil judgment is

subject to waiver. The Court held that under the facts of the case, Overmyer, a

sophisticated warehousing corporation, had “voluntarily, intelligently, and knowingly

waived the rights it otherwise possessed to prejudgment notice and hearing . . . .” Id. at

187. The Court cautioned, though, that “[o]ur holding . . . is not controlling precedent for

30 other facts of other cases. For example, where the contract is one of adhesion, where there

is great disparity in bargaining power, and where the debtor receives nothing for the

cognovit provision, other legal consequences may ensue.” Id. at 188.

In a companion case to Overmyer, the Supreme Court considered the

constitutionality of Pennsylvania’s confessed judgment procedure in a class action brought

by Pennsylvania citizens who had signed documents containing confessed judgment

clauses. Swarb v. Lennox, 405 U.S. 191 (1972). The lower court held that the Pennsylvania

confessed judgment process was not facially unconstitutional. However, based upon the

evidence presented, the lower court held that a class action could be maintained on behalf

of Pennsylvania residents who earn less than $10,000 annually, and who signed consumer

financing or lease contracts containing a confessed judgment clause. The lower court held

that the Pennsylvania practice of confessing judgments against the designated class was

unconstitutional against a member of that class in the absence of a showing that the debtor

“intentionally, understandably, and voluntarily waived” his rights under Pennsylvania law.

On appeal, the sole issue presented to the Supreme Court was whether the

Pennsylvania confessed judgment statute was facially unconstitutional. The Supreme

Court cited to Overmyer and held that the statute was not unconstitutional on its face. The

Supreme Court did not reach the rest of the merits of the case because no cross appeal was

taken. Although the Supreme Court did not address the merits of the lower court’s opinion,

the Court reiterated that the Overmyer decision was not controlling precedent for other

facts of other cases. Id. at 201.

31 After the Supreme Court’s decisions in Overmyer and Swarb, this Court considered

the constitutionality of the Maryland confessed judgment rules in Billingsley v. Lincoln

National Bank, 271 Md. 683 (1974). Like the parties in Overmyer, Billingsley involved

sophisticated parties—a corporate borrower and a commercial bank. This Court

specifically relied upon the Supreme Court’s analysis in Overmyer and Swarb, stating that

“[f]ortunately, we are not required to chart a new course dealing with this important

contention, since the Supreme Court has recently addressed itself to the very issue

presented here.” Billingsley, 271 Md. at 687. We held that the Maryland confessed

judgment rules were not unconstitutional on their face. Id. at 692. We further held that the

debtor offered no evidence to establish that the confessed judgment procedure was

unconstitutional as applied under the facts of that case. In that situation, we held that the

instrument was not a contract of adhesion, given the original face amount of the note

($46,000) and the fact that one of the appellants signed the note as the vice president of the

corporate maker. This Court declined to remand the case to determine whether the

appellants knowingly and intelligently waived their rights to notice, finding that under the

facts of the case, appellants had such an opportunity at the hearing on their motion to

vacate.

The Supreme Court’s decisions in Overmyer and Swarb, and our decision in

Billingsley make clear that, although the confessed judgment process is not

unconstitutional on its face, there are situations in which the judgment may be challenged

if the debtor did not knowingly, intelligently, and voluntarily waive his or her rights prior

to execution of the contract or note. These situations exist where the contract is one of

32 adhesion, there is great disparity in bargaining power, or the debtor receives nothing for

the cognovit provision.

1981 Amendment to the Consumer Protection Act

Against the backdrop of the Supreme Court cases of Overmyer and Swarb, and our

case of Billingsley, in 1981, the General Assembly amended the Consumer Protection Act

to prohibit the use of confessed judgment clauses “related to a consumer transaction” by

adding what is now CL § 13-301(12) through the enactment of 1981 Laws of Maryland,

chapter 388 (“H.B. 692”). We must determine whether the General Assembly intended to

prohibit the use of all confessed judgment clauses in contracts related to consumer

transactions or, as the Association argues, only intended to prohibit the use of a subset of

confessed judgment clauses that include a waiver of a consumer’s right to assert any legal

defense to such an action. For the reasons set forth below, we hold that all confessed

judgment clauses are prohibited in contracts related to consumer transactions.

“The ultimate objective of our analysis is to extract and effectuate the actual intent

of the Legislature in enacting the statute.” Reier v. State Dep’t of Assessments & Taxation,

397 Md. 2, 26 (2007) (citing Deville v. State, 383 Md. 217, 223 (2004)). “This process

begins with an examination of the plain language of the statute.” Id. In Koste v. Oxford,

we summarized our statutory construction analysis as follows:

The primary goal of statutory construction is “to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by a particular provision[.]” In doing so, we first look to the “normal, plain meaning of the language of the statute,” read as a whole so that “no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory[.]” If the language of a statute is clear and

33 unambiguous, we “need not look beyond the statute’s provisions and our analysis ends.” Where the language of the statute is ambiguous and may be subject to more than one interpretation, however, we look to the statute’s legislative history, case law, purpose, structure, and overarching statutory scheme in aid of searching for the intention of the Legislature.

431 Md. 14, 25–26 (2013) (citing Whitley v. Md. State Bd. of Elections, 429 Md. 132, 149

(2012) (additional internal citations omitted)).

We hold that under the plain language of the statute, the CPA prohibits the use of

all confessed judgment clauses in consumer transactions because the very essence of a

confessed judgment clause requires a waiver of a “consumer’s right to assert a legal

defense to an action.” CL § 13-301(12). In Schlossberg v. Citizens Bank of Maryland, we

explained that “[a] confession of judgment clause in a debt instrument . . . is a provision

by which debtors agree to the entry of judgment against them without the benefit of a trial

in the event of a default on the debt instrument.” 341 Md. 650, 655 (1996). A confessed

judgment, by its inherent attributes, mandates that a debtor waive his or her right to assert

any pre-judgment defenses including lack of venue, personal jurisdiction, and service of

process. These pre-judgment defenses are significant and are intended to protect an

individual’s right to due process of law. See Flanahan v. Dep’t of Human Res., 412 Md.

616, 624 (2010) (“The Maryland Rules governing service of process are ‘declaratory of the

basic requirements of due process of law . . .’ and the ‘failure to comply with those Rules

constitutes a jurisdictional defect that prevents a court from exercising personal jurisdiction

over the defendant.’”) (internal citations omitted).

34 The Association argues that we should interpret the words following the pronoun

“that” as a restrictive modifying clause, thereby limiting the prohibition on the use of

confessed judgments under the CPA only to those “that waive the consumer’s rights to

assert legal defenses to an action.” CL § 13-301(12). Although we agree that the pronoun

“that” is typically used to introduce a restrictive clause,15 we reject this interpretation here

because it is unreasonable. When interpreting the language in a statute, our interpretation

“must be reasonable, not ‘absurd, illogical, or incompatible with common sense.’” State v.

Neiswanger Mgmt. Servs., LLC, 457 Md. 441, 459 (2018) (quoting Lockshin v. Semsker,

412 Md. 257, 276 (2010)). The Association’s interpretation, which purports to distinguish

between confessed judgment clauses generally on the one hand, and a subset category of

confessed judgments “that waive the consumer’s rights to assert legal defenses to an

action” on the other, is based upon a fiction that a confessed judgment debtor is not waiving

his or her legal defenses and leads to an illogical result.

A confessed judgment clause necessarily waives all legal defenses that a consumer

could assert prior to entry of judgment. Indeed, that is precisely what happened in this

case. Despite the language in the Promissory Note stating that Ms. Cisneros “[did] not

waive any defenses to any action to enforce this promissory note and mortgage,” she clearly

waived many defenses by executing the Promissory Note containing the confessed

judgment clause. For example, Ms. Cisneros waived her right to challenge venue and

personal jurisdiction. These defenses are significant. Under this waiver of personal

15 See that & which, A. Generally, Bryan Garner, Garner’s Dictionary of Legal Usage (3d ed. 2011).

35 jurisdiction, the Association could obtain a confessed judgment against Ms. Cisneros in

any of the 50 states, the District of Columbia, or Puerto Rico.16 After the entry of a

confessed judgment, Ms. Cisneros or a similarly situated defendant is limited to raising any

post-judgment defenses in the jurisdiction that entered the confessed judgment. Moreover,

such post-judgment defenses are limited to challenges on the execution of the note or on

the amount due. NILS, LLC v. Antezana, 171 Md. App. 717, 728 (2006) (“A defense to the

claim is a defense challenging: 1) the execution of the promissory note itself or 2) the

amount of debt due on the note.”). Under the confessed judgment process, once judgment

is entered, the burden falls to the defendant to raise meritorious defenses in a post-judgment

proceeding. Id. at 726. To suggest that a confessed judgment debtor does not “waive

defenses” is illogical.

16 At oral argument, counsel for the Association conceded that the confessed judgment provisions in the Promissory Note would authorize the Association to enter judgment against Ms. Cisneros anywhere in the United States and that she would then be forced to present any post-judgment defenses in that jurisdiction. The possibility of such an occurrence is not simply speculative. There has been a documented increase in the use confessed judgment clauses by lenders to obtain judgments in other states that are more favorable to the entry of confessed judgments. The recent uptick in these predatory practices is described in a series of articles published in Bloomberg. See Zachary R. Mider & Zeke Faux, Sign Here to Lose Everything: Part 1: “I Hereby Confess Judgment,” Bloomberg (Nov. 20, 2018) https://www.bloomberg.com/graphics/2018-confessions-of- judgment/ (https://perma.cc/VKG4-8836); Zachary R. Mider & Zeke Faux, Sign Here to Lose Everything: Part 3: Rubber-Stamp Justice, Bloomberg (Nov. 29, 2018) https://www.bloomberg.com/graphics/2018-confessions-of-judgment-new-york-court- clerks/ (https://perma.cc/DXV6-2J2T). Courts in rural New York have become favorite venues of creditors because they can enter judgments usually in one day. One court in Orange County, New York entered 176 judgments in the month of July 2018 for one creditor against small businesses in 38 states and Puerto Rico (none of which were located in New York). Mider & Faux, How to Lose Everything: Part I, supra.

36 We hold that the plain language of CL § 13-301(12) is unambiguous and prohibits

all confessed judgment clauses in consumer contracts. The very nature of a confessed

judgment action necessarily involves the waiver of significant defenses which protect due

process. We do not find the language in the statute to be ambiguous because the

Association’s interpretation is not a reasonable or logical one. See Koste, 431 Md. at 29

(“When the plain language of a statute is ‘subject to more than one reasonable

interpretation,’ the statutory language is ambiguous.”) (citations omitted) (emphasis

added); Lewis v. State, 348 Md. 648, 654 (1998) (“[W]e interpret the meaning and effect

of the language in light of the objectives and purposes of the provision enacted. Such an

interpretation must be reasonable and consonant with logic and common sense. In addition,

we seek to avoid construing a statute in a manner that leads to an illogical or untenable

outcome.”) (citations omitted). Adding language to a confessed judgment clause stating

that the debtor is not “waiving defenses” does not make it so—nor does it rescue a

confessed judgment provision from the CPA’s clear prohibition on their use in consumer

contracts.

However, even assuming the General Assembly’s use of the relative pronoun “that”

instead of the relative pronoun “which” in the statute created ambiguity, our review of the

legislative history, purpose, structure, and overarching statutory scheme confirms that the

General Assembly intended to prohibit the use of all confessed judgment clauses in

consumer contracts. See State v. Roshchin, 446 Md. 128, 140 (2016) (holding that “even

when the language is unambiguous, it is useful to review the legislative history of the

37 statute to confirm that interpretation and to eliminate another version of legislative intent

alleged to be latent in the language.”) (citation omitted).

The General Assembly enacted the prohibition on confessed judgment clauses

through H.B. 692. The legislative history of H.B. 692 makes clear that, throughout the

legislative process from January through May 1981, the bill’s proponents in the General

Assembly were aware of the Supreme Court’s recent holding in Overmyer and this Court’s

holding in Billingsley, and were concerned that confessed judgment clauses allowed the

holder of a confessed judgment note, through its agents, to appear in court on behalf of the

consumer-defendant to confess judgment against that consumer in favor of the holder—all

without the knowledge of the consumer.

H.B. 692, as originally drafted, prohibited only the use of confessed judgment

clauses for home improvements. The original legislation, as proposed by the Consumer

Law Center of the Legal Aid Bureau in January 1981, at the request of Delegate John Pica,

Jr., had the stated purpose of “prohibiting the use of confessed judgment notes in home

improvement transactions,” and would have amended the licensing statute applicable to

home improvement companies to prohibit “the use of a confessed judgment note, cognovits

or other clause authorizing the holder to appear in court and enter judgment against the

maker in the case of default.” Following the drafting process, H.B. 692 was introduced

with altered language to prohibit home improvement companies’ “use of a confessed

judgment note, authorizing the holder to appear in court and enter judgment against the

maker in case of default.” The bill clearly equated the “use of a confessed judgment note”

with “authorizing the holder to appear in court and enter judgment against the maker in

38 case of default.” As such, the original bill focused exclusively on prohibiting the activity

occurring prior to the entry of confessed judgment against the consumer. The written

testimony of the bill’s sponsor, Delegate Pica, confirms this interpretation. His remarks

expressed the bill’s intent to ban the use of all confessed judgment clauses in home

improvement transactions and focused exclusively on the harm caused by the activity

leading up to, and including, the entry of confessed judgment by a court. Delegate Pica

explained that the legislation was “merely extending existing Maryland law prohibiting

confessed judgments in loans not secured by residential real property, consumer loans, and

retail sales contracts.”

In explaining the many reasons to prohibit confessed judgments in home

improvement contracts, Delegate Pica noted “the first of these reasons is that confessed

judgments tend to eliminate the minimal due process rights of notice and opportunity to be

heard, rights which have been devoted to constitutional standards, thus deprival of them

results in substantial harm to consumers.” Delegate Pica referred to the Supreme Court’s

holding in Overmyer and this Court’s holding in Billingsley, noting that although the

confessed judgment process has been determined to be facially constitutional in some

transactions, “they may not be in certain [other] factual situations, especially situations

where contracts of adhesion are most likely to flourish.” Delegate Pica further noted that

the “ex[]parte nature of the proceeding as a practical matter cuts off any defense on the

counterclaim that may be available to the consumer,” and that as a result, consumers often

end up making payments on the disputed debts.

39 Subsequently, the Economic Matters Committee amended H.B. 692 by extending

the scope of the bill to apply to all consumer transactions—not just those in the home

improvement context—and it introduced the language, which appears in the present form

of CL § 13-301(12). This amended version of H.B. 692 was adopted and went into effect

on July 1, 1981. The legislative history is devoid of support for the notion that by adding

the clause “that waives the consumer’s right to assert a legal defense to an action,” the

General Assembly intended to limit the type of confessed judgment contracts that were

prohibited. The Committee file explains the purpose of these amendments to the original

bill:

Makes use of a confessed judgment clause in any consumer transaction an unfair or deceptive trade practice.

Amendments rewrite the bill so that it applies to all consumer contracts, not just home improvement.

With these amendments, the language “use of a confessed judgment” in the original

bill ultimately became “use of a contract related to a consumer transaction which contains

a confessed judgment clause,” while the original description of the instrument as

“authorizing the holder to appear in court and enter judgment against the maker of the note”

became “that waives the consumer’s right to assert a legal defense to an action.” The first

of these changes reflects an expansion of the types of instruments being covered; from

“confessed judgment notes” to “any contract related to a consumer transaction.” The

second of these changes appears to reflect a shift in emphasis from the acts taken by the

holder of the note, to the harm that the holder’s actions have on the consumer.

40 Thus, our review of the legislative history confirms that the last part of subsection

CL § 13-301(12)—“that waives the consumer’s right to assert legal defenses to an

action”—is merely descriptive of what was understood to be the typical confessed

judgment clause; it does not establish a separate element that must be satisfied in order for

a confessed judgment clause to be in violation of the CPA. The legislative history makes

it clear that the General Assembly was concerned about protecting consumers’ pre-

judgment rights—not the possibility of post-judgment attempts to vacate a confessed

judgment already entered.

Our holding that CL § 13-301(12) prohibits the use of contracts containing any

confessed judgment clause is also consistent with the purpose, structure, and overarching

statutory scheme of the CPA, as well as our case law interpreting the statute. The purpose

of the CPA is to “set certain minimum standards for the protection of consumers across the

State . . . .” CL § 13-102(b)(1). The General Assembly has instructed that the CPA shall

be “construed and applied liberally to promote its purpose.” CL § 13-105. We have

previously described that the CPA is “intended to be construed liberally in order to promote

its purpose of providing a modicum of protection for the State’s consumers.” Washington

Home Remodelers, Inc. v. State, 426 Md. 613, 630 (2012). Moreover, “[w]e seek to

‘construe the statute in a way that will advance [the statute’s] purpose, not frustrate it.’”

Lockett v. Blue Ocean Bristol, LLC, 446 Md. 397, 423 (2016) (quoting Neal v. Fisher, 312

Md. 685, 693 (1988)). The Association’s attempt to limit the CPA’s prohibition on the use

of confessed judgment clauses to a certain subset of confessed judgment clauses that

expressly waive legal defenses is not only illogical, given that all confessed judgment

41 clauses operate to waive legal defenses, but is inconsistent with the remedial purpose of

the CPA.

Finally, we note that other statutes in the Commercial Law Article that apply to

consumers clearly prohibit the use of confessed judgments in transactions such as

consumer loans (CL § 13-311(b)(1)), retail credit (CL § 12-507(b)), and retail installment

sales (CL § 12-607(a)(2)). We shall interpret the General Assembly’s intent to eliminate

confessed judgments from consumer transactions consistently with the other consumer

statutes prohibiting the use of confessed judgment clauses.

In conclusion, we hold that the plain language of CL § 13-301(12) prohibits the use

of contracts containing all confessed judgment clauses in consumer transactions because

the very essence of a confessed judgment clause requires that the debtor waive defenses.

Our holding that CL § 13-301(12) prohibits the use of all confessed judgment clauses in

consumer contracts is confirmed by our review of the legislative history and is consistent

with the purpose of the CPA.

4. Dismissal of a Confessed Judgment Complaint Pursuant to Maryland Rule 3-611

Having determined that the Association was not permitted under the CPA to obtain

a confessed judgment against Ms. Cisneros, we must determine whether the circuit court

erred in holding that the complaint should have been dismissed pursuant to Md. Rule 3-

611(b). We hold that, under the facts and procedural posture of this case, the proper

procedure was dismissal of the confessed judgment action.

42 In this case, the Association filed a single-count complaint for confession of

judgment in the district court pursuant to Md. Rule 3-611. As a condition to filing suit,

Md. Rule 3-611(a) requires that the plaintiff sign an affidavit stating that “[t]he instrument

does not evidence or arise from a consumer transaction as to which a confessed judgment

clause is prohibited by Code, Commercial Law Article, § 13-301.”

Md. Rule 3-611(b) provides that:

Action by the Court. If the court determines that (1) the complaint complies with the requirements of section (a) of this Rule and (2) the pleadings and papers demonstrate a factual and legal basis for entitlement to a confessed judgment, the court shall direct the clerk to enter the judgment. Otherwise, it shall dismiss the complaint.

(emphasis added).

Once the confessed judgment is entered, under Md. Rule 3-611(c), the clerk “shall

issue a notice informing the defendant of entry of judgment and of the latest time for filing

a motion to open, modify, or vacate the judgment.” After the defendant is served with the

notice, Md. Rule 3-611(d) and (e) provide the following process for opening the judgment:

(d) Motion by Defendant. The defendant may move to open, modify, or vacate the judgment within 30 days after service of the notice. The motion shall state the legal and factual basis for the defense to the claim.

(e) Disposition of the Motion. If the court finds that there is substantial and sufficient basis for an actual controversy as to the merits of the action, the court shall order the judgment by confession opened, modified, or vacated and permit the defendant to file a responsive pleading.

The Association argues that because the Promissory Note contains a severance

clause, it was appropriate for the district court to vacate the confessed judgment, allow the

43 Association to file an amended complaint alleging a breach of contract arising out of the

Promissory Note, and proceed on the amended complaint with a trial on the merits. To

support its position, the Association points to the sequence outlined in Md. Rule 3-611(d)

and (e) which permits a court to vacate the confessed judgment and authorizes parties to

proceed with a trial on the merits. The Association relies upon Schlossberg v. Citizens

Bank of Maryland, 341 Md. 650, 656 (1996) and Metalcraft v. Pratt, 65 Md. App. 281

(1985) for the proposition that if the court opens, vacates, or modifies the judgment, the

defendant may file a responsive pleading and defend the case on the merits. These cases

are inapposite because they involve commercial transactions, not consumer transactions

where the General Assembly has prohibited the use of a confessed judgment clause in a

consumer contract as an “unfair, abusive, or deceptive” trade practice.

Although the Association accurately recites the process for opening a confessed

judgment under the Maryland Rules, the process described in subsections (d) and (e) are

premised upon the entry of a lawful confessed judgment. Here, as a matter of law, the

filing of the initial complaint and subsequent entry of the confessed judgment under

subsections (a) and (b) of the Rule were unlawful and were undertaken in violation of the

CPA based upon an erroneous affidavit that the Promissory Note “does not evidence or

arise from a consumer loan as to which a confessed judgment clause is prohibited by Code,

Commercial Law Article, § 13-301.”

Because the entry of a confessed judgment was prohibited under the CPA, there was

no legal basis for its entry. The confessed judgment complaint did not comply with the

requirements of Md. Rule 3-611(a), and Md. Rule 3-611(b) mandated dismissal of the

44 complaint. Under the procedural posture of this case, we will not ignore the mandatory

dismissal language in the rule and grant the Association leave to file an amended complaint

alleging breach of contract in the unlawful confessed judgment action. Given the

mandatory language of the rule and the equities, dismissal of the initial confessed judgment

case was required under Md. Rule 3-611(b).

Although we hold that the Association could not file an amended complaint in the

unlawful confessed judgment action, we nonetheless hold that the Association may file a

separate complaint alleging breach of contract under the terms of the Promissory Note,

severed from the unenforceable confessed judgment clause.17 We disagree with Ms.

Cisneros’s position that the Promissory Note is void in its entirety. Although CL § 13-

301(12) prohibits the use of “a contract related to a consumer transaction containing a

confessed judgment clause,” there is nothing in the Consumer Protection Act to indicate

that the General Assembly intended that a contract made in violation of its provisions is

void in its entirety, where the offending clause may be severed. We have held that:

“A contract conflicting with public policy set forth in a statute is invalid to the extent of the conflict between the contract and that policy.” Medex v. McCabe, 372 Md. 28, 39 (2002). See also State Farm Mut. Auto. Ins. Co. v. Nationwide Mut. Ins. Co., 307 Md. 631, 643 (1986) (holding that a contractual

17 In the end, we recognize that if the Association files a separate action for breach of contract severed from the confessed judgment case, the end result may be the same as if the Association were permitted leave to file an amended complaint for breach of contract in the initially filed confessed judgment case. However, given the mandatory language of Md. Rule 3-611(b) and the fact that filing the confessed judgment action was unlawful, it is neither fair nor equitable to allow the Association to file an amended complaint seeking relief that may relate back to the initial filing date of the unlawful action. To the extent that there is a benefit to filing an amended complaint in the context of the unlawful action, the Association should not reap that benefit.

45 provision that violates public policy is invalid, but only to the extent of conflict between stated public policy and contractual provision).

Mayor & City Council of Baltimore v. Clark, 404 Md. 13, 33 (2008). A clause “can be

severed from the instrument without destroying the instrument’s overall validity or the

validity of other provisions if it is not so interwoven as to be logically inseparable from the

rest.” Connolley v. Harrison, 23 Md. App. 485, 488 (1974) (citing Northwest Real Estate

Co. v. Serio, 156 Md. 229, 232 (1929) (citations omitted)).

Here, we hold that the confessed judgment clause of the Promissory Note may be

severed without destroying the instrument’s overall validity. Ms. Cisneros should not

obtain a windfall and escape responsibility for paying her delinquent homeowners

assessments solely because the Promissory Note contained a confessed judgment clause.

Should the Association decide to proceed with an action for breach of contract on the

Promissory Note, severed from the confessed judgment clause, Ms. Cisneros will have the

ability to raise all defenses permitted by law. We agree with the circuit court that dismissal

was required under Md. Rule 3-611(b). However, we hold that the dismissal should have

been without prejudice to the Association to file a separate breach of contract action based

on the promissory note with the confessed judgment clause severed.

III. CONCLUSION

For the reasons explained above, we hold that the collection of HOA assessments

falls within the purview of the Consumer Protection Act. Specifically, we hold that HOA

assessments fall within the broad definition of “consumer debt” under the CPA. Moreover,

the Promissory Note containing the confessed judgment clause constituted an extension of

46 credit to Ms. Cisneros to pay delinquent HOA assessments, which falls squarely within the

definition of “consumer credit” under the CPA. Under the plain language of CL § 13-

301(12), the CPA forbids the use of all confessed judgment clauses in contracts related to

consumer transactions. A creditor cannot circumvent the protections afforded to a debtor

under the CPA by inserting language in the confessed judgment clause which purports to

preserve a debtor’s legal defenses. Finally, we hold that because the Association lacked

the legal authority to file a confessed judgment complaint, the appropriate remedy under

Maryland Rule 3-611(b) was dismissal of the case without prejudice to file a separate

breach of contract action based on the promissory note with the confessed judgment clause

severed. Although the Association may be able to file a separate breach of contract claim

under the Promissory Note by severing the confessed judgment clause from the balance of

the Note, it was improper to file such an action within the unlawful confessed judgment

proceedings.

JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY IS AFFIRMED IN PART, REVERSED IN PART. COSTS TO BE PAID BY THE PETITIONER.

47 Circuit Court for Montgomery County Case No.: 9842D Argued: September 5, 2019

IN THE COURT OF APPEALS OF MARYLAND

Barbera, C.J. McDonald, Watts, Hotten, Getty, Booth, Raker, Irma S., (Senior Judge, Specially Assigned)

Dissenting Opinion by Getty, J., which Hotten and Raker, JJ., join.

Filed: January 27, 2020 Respectfully, I dissent.

As a threshold issue in this case, I would hold that homeowners’ association

assessments (“HOA assessments”) derive from a real property obligation under the

Maryland Real Property Article and are not consumer transactions subject to the Consumer

Protection Act (“CPA”), Md. Code (1975, 2013 Repl. Vol.), Commercial Law (“CL”) § 13-

101 et seq.

The Maryland Homeowners Association Act (“HOA Act”) in the Real Property

Article establishes HOA assessments. Md. Code (1974, 2015 Repl. Vol.), Real Property

(“RP”) § 11B-101 et seq. The statutory authority for a homeowners’ association to impose

a mandatory fee on lots, or the owners or occupants of lots, is through a real property

“declaration,” an instrument recorded among the land records of the county. RP § 11B-

101(d). HOA assessments are not optional consumer contracts but instead are a

requirement of the HOA declaration and a responsibility of the lot owner. RP § 11B-117.

Unlike a consumer transaction, the HOA declaration creates continuing and mandatory

obligations for HOA assessments to support common use property maintenance and

facilities.

In this case, Ms. Cisneros argues that HOA assessments fall within the purview of

the CPA because the assessment “relates to a consumer transaction.” Ms. Cisneros first

argues that assessments are consumer transactions because they are used for “personal, family or household needs.”1 Ms. Cisneros further argues that HOA assessments relate

back to the sale and original extension of credit—which is a consumer transaction.

Therefore, Ms. Cisneros believes, HOA assessments fit into the CPA definition of

“consumer credit.”

Adopting Ms. Cisneros’ argument, the Majority proceeds to apply other statutory

schemes to attempt to fit the real property declaration of HOA assessments into the

Maryland definition of a consumer transaction under the state CPA. As discussed below,

I would hold that HOA assessments are not consumer transactions under the Maryland

CPA because they are neither “consumer debt” nor an “extension of credit.”

I. HOA Assessments Are Not Consumer Debt.

The Majority first relies on the federal Debt Collection Practices Act (“FDCPA”) to

hold that HOA assessments constitute consumer debt because they are incurred primarily

for personal, household, and family purposes. Therefore, the Majority believes, HOA

assessments fit within the definition of “consumer debt” under the CPA. I disagree.

1 Specifically, Ms. Cisneros argues that

[i]t is beyond doubt that the assessments imposed by Goshen Run for care and maintenance of the common areas was in part for the benefit of Ms. Cisneros’ property interest in those common areas. In other words, the assessments are for the benefit of Ms. Cisneros personally, and her household. The [confessed judgment promissory note], which Goshen Run acknowledges is “composed of . . . the delinquent assessments imposed by Goshen Run,” and which mandates payment of future assessments, is related to a consumer transaction, subject to [CL] § 13-301(12).

2 The FDCPA defines “debt” as “any obligation or alleged obligation of a consumer

to pay money arising out of a transaction in which the money, property, insurance, or

services which are the subject of the transaction are primarily for personal, family or

household purposes, whether or not such obligation has been reduced to judgment.” 15

U.S.C.A. § 1692a(5). The Maryland Consumer Debt Collection Act (“MCDCA”)

prohibits a debt collector, inter alia, from “[e]ngag[ing] in any conduct that violates . . . the

[FDCPA].” CL § 14-202(11).

In contrast, the Maryland CPA defines “consumer debt” as “debts . . . which are

primarily for personal, household, family or agricultural purposes.” CL § 13-101(d)(1).

Noticeably absent in the language of the CPA definition is the “obligation” and “arising

out of” language present in the FDCPA: “any obligation or alleged obligation of a

consumer to pay money arising out of a transaction. . . .”

The Majority attempts to read those words into the CPA definition of “consumer

debt” by applying federal cases that have interpreted the FDCPA. Since 1997, several

federal courts have held that HOA assessments are debts under the FDCPA. See Majority

Slip Op. at 22–23. Those courts follow a familiar refrain: homeowners are consumers that

have an obligation to pay money to the association and because the obligation arises out of

a “transaction” which is “primarily for personal, family, or household purposes,” thus HOA

assessments are a debt within the definition of the FDCPA.

To be sure, the Maryland CPA cross references the violation of the MCDCA, and

by implication the FCDCA, as a violation of the CPA. CL § 13-301(14)(iii). There is no

indication, however, that the FDCPA’s broader definition of “debt” should be transposed

3 on the Maryland CPA’s limited definition of “consumer debt.” Reading anything else into

the statute, such as transposing definitions from one cross-referenced act to supersede a

definition of the same word in the CPA, is counter to the General Assembly’s language

and to this Court’s long-standing tradition of deferring to the Maryland legislature.

II. The Promissory Note Is Not An “Extension of Consumer Credit.”

The Majority next determines that HOA assessments constitute “consumer credit”

because they are incurred primarily for personal, household, and family purposes. The

Majority reasons that HOA assessments relate back to the sale of property and original

“extension of credit”—which is a consumer transaction. This position incorrectly conflates

the consumer transaction of purchasing personal property with the property obligation of

paying HOA assessments.2

In Schinnerer v. Maryland Insurance Administration—the Majority’s only support

for their consumer credit argument—Schinnerer, an insurance agent, was obligated to

collect, report, and remit premiums to his insurance company within forty-five days. 147

Md. App. 474, 479–80 (2002). When Schinnerer was unable to make the remittance in

time, he negotiated payment plans with interest that were memorialized in promissory

notes. Id. at 480–81. The insurance commissioner suspended Schinnerer’s license for

2 See Fink v. Meadow Lake Estates Homeowners’ Ass’n, 384 Mont. 552 (2016) (holding that under the Montana CPA definition of “consumer” i.e., “a person who purchases or leases goods, services, real property, or information primarily for personal, family, or household purposes,” the homeowner was not a “consumer” in relation to the HOA when purchasing her lot (quoting Mont. Code. Ann. § 30-14-102(1)).

4 failure to remit payments. Id. at 483. Schinnerer, in attempting to avoid the suspension,

argued that the extension of credit under the promissory notes transformed the relationship

from principal-agent to lender-borrower, such that he did not violate the fiduciary duties

set out by his agreement with the insurance company. Id. at 489. The Court of Special

Appeals rejected this argument and found that Schinnerer still owed a fiduciary duty based

on the existence of a loan program that the insurance company formerly had in place for

its agents. Id. at 490.

The Majority takes Schinnerer to mean that an “extension of credit” under

circumstances similar to the present case does not change the character of the relationship.

This argument is tenuous even putting aside the factual nature of Schinnerer, its specific

review of an Insurance Commissioner’s findings for error, and its limited analysis as

applied to the Insurance Article. The Majority reasons that the confessed judgment

promissory note does not change the consumer nature of the HOA assessments or the

character of the relationship between the parties but provides limited support for the

similarities between the original extension of credit and the HOA assessment transactions.

As the Majority admits, the primary question is the “nature” of the transactions. Even

accepting that the promissory note reflects a debt incurred by Ms. Cisneros for personal,

household and family purposes—which I do not—the “nature” of the acknowledgment of

and agreement to repay the delinquent HOA assessments (mandatory property interest) is

not of the same “nature” as the original credit transaction to purchase the property

(voluntary consumer transaction).

5 Citing the Equal Credit Opportunity Act and the Credit Services Businesses Act, the

Majority reasons that “[t]he CPA’s definition of ‘consumer credit’ is consistent with the

definition of ‘credit’ and ‘extension of credit’ in the context of other consumer debt statutes

codified in the Commercial Law Article.” Majority Slip Op. at 24. That reasoning assumes

that HOA assessments are consumer debts, see id. (“Given its broad language, we read CL

§ 13-101(d) to apply generally to transactions in which repayment of personal, household,

family, and agricultural debts are deferred.”), a premise with which, as outlined above, I

fundamentally disagree.

To the contrary, the HOA Act, and not the CPA, governs assessments: “As provided

in the declaration, a lot owner shall be liable for all homeowners association assessments

and charges that come due during the time that the lot owner owns the lot.” RP § 11B-

117(a). As for collection of assessments, “a homeowners association may enforce the

payment of the assessments and charges provided in the declaration by the imposition of a

lien on a lot in accordance with the Maryland Contract Lien Act.” RP §11B-117(b). The

statutory provisions of the Contract Lien Act are also a title in the Real Property article.

See RP § 14-201 et seq. Assessments are in turn governed by the covenants of the

respective HOA. Such covenants are not typically optional contracts but rather a

requirement of the HOA declaration.

Unlike a consumer transaction, the HOA declaration creates continuing and

mandatory real property obligations. More specifically, a declaration

creates the authority for a homeowners association to impose on lots, or on the owners or occupants of lots, or on another homeowners association, condominium, or cooperative housing corporation any mandatory fee in

6 connection with the provision of services or otherwise for the benefit of some or all of the lots, the owners or occupants of lots, or the common areas.

RP § 11B-101(d)(1).

The General Assembly has not specified that such a required real property

obligation is subject to the Maryland CPA. The CPA does not reference or adopt the HOA

Act.3 In contrast, the Legislature has adopted statutory provisions for the CPA to cover

3 Inversely, the Majority cites but does not rely on the “2007 Amendment,” RP § 11B-115, the lone instance where the HOA Act cross references the CPA. Majority Slip Op. at 16– 17. Prior to 2007, there is no indication in the legislative history or otherwise that the CPA applied to the HOA Act. In 2007, however, the HOA Act was amended to add RP § 11B- 115, titled “Enforcement Authority of Division of Consumer Protection.” In addition to adding a specific definition of “consumer” to the HOA Act, the 2007 Amendment states that “to the extent that a violation of any provision of this title affects a consumer, that violation shall be within the scope of the enforcement duties and powers of the Division of the Consumer Protection of the Office of the Attorney General, as described in Title 13 of the Commercial Law Article.” RP § 11B-115(c). The language of § 11B-115(c) thus limits the application of the enforcement provisions of Subtitle 4 of the CPA to the HOA Act. In other words, where an HOA Act violation affects a “consumer” as defined in the HOA Act, the Division of Consumer Protection has enforcement powers under CL § 13-401 et seq. The Fiscal and Policy Note to the 2007 Amendment explains that the Legislature amended the Real Property Article, including the addition of enforcement powers under RP § 11B- 115, as a recommendation from the 2006 Final Report of the Task Force on Common Ownership Communities. See TASK FORCE ON COMMON OWNERSHIP COMMUNITIES, 2006 FINAL REPORT (Dec. 31, 2006), https://msa.maryland.gov/megafile/msa/speccol/sc5300/sc5339/000113/003000/003160/u nrestricted/20066534e.pdf ; 2007 Md. Laws ch. 593, House Bill 183, Fiscal & Policy Note, http://mgaleg.maryland.gov/2007rs/fnotes/bil_0003/hb0183.pdf. The Task Force concluded that “local governments should be required to coordinate referrals of disputes involving alleged violation of State common ownership community laws to the Office of the Attorney General for review and appropriate enforcement action.” House Bill 183, Fiscal & Policy Note at 2. The Task Force’s Report makes clear that the main concern of the Task Force was to apply Subtitle 4 of the CPA to have the Division of Consumer Protection intervene and act as a mediator to avoid HOA disputes from ending up in court. See TASK FORCE REPORT at 14 (Suggesting “government enforcement at the State level when disputes involving alleged violations of [common ownership community] laws cannot be resolved through conciliation, mediation or arbitration at the local level. . . . [S]uch disputes should be reviewed by the Office of the Attorney General and, 7 unfair or deceptive trade practices as it relates to the sale of real property, the sale of home

warranties, and the protection of homeowners in foreclosure. See CL § 13-301(14)(xvi)

(indicating that an unfair or deceptive trade practice includes a violation of RP § 10-601 et

seq. governing new home warranties and RP § 7-301 et seq. governing the homeowners in

foreclosure).

Absent specific language that incorporates the HOA Act or HOA assessments as

consumer transactions subject to the CPA, I would exclude this real property obligation. I

am cognizant of CL § 13-105 which requires us to construe and apply liberally the CPA to

promote its purpose. There is no doubt that confessed judgments can be used as a deceptive

trade practice. They are not, however, per se deceptive trade practices within the definition

of the CPA as it relates to HOA declarations and assessments. The CPA, even construed

liberally, is not the proper vehicle to prohibit confessed judgments in HOA declarations.

In summary, I would hold that under the Maryland Real Property article, HOA

assessments are not consumer transactions and therefore are not subject the CPA.

Judge Hotten and Judge Raker have authorized me to state that they join in this

opinion.

where appropriate, enforcement action taken. . . .”). There is no statutory language or indication of legislative intent that § 11B-115 applies the CPA wholesale to the HOA Act. Rather, the language of § 11B-115 and the findings of the Task Force indicate a very nuanced cross-reference to the CPA specifically regarding enforcement.