Whitaker v. Whitaker

901 A.2d 223, 169 Md. App. 312, 2006 Md. App. LEXIS 90
CourtCourt of Special Appeals of Maryland
DecidedJune 29, 2006
DocketNo. 0970
StatusPublished

This text of 901 A.2d 223 (Whitaker v. Whitaker) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whitaker v. Whitaker, 901 A.2d 223, 169 Md. App. 312, 2006 Md. App. LEXIS 90 (Md. Ct. App. 2006).

Opinion

MEREDITH, J.

In this case, we shall hold that the subject real estate transaction involved a land installment contract, as defined in Maryland Code (1974, 2003 Repl.Vol.), Real Property Article (“RP”) § 10-101. Because the vendor failed to record the contract, as required by RP § 10—102(f), the purchaser of the property had the unconditional right to cancel the contract and receive a refund of all payments made. The circuit court erred in ruling that the purchaser was not entitled to the remedial relief prescribed by RP § 10—102(f). Accordingly, we shall vacate the judgment of the circuit court and remand this case for further proceedings.

Facts and Proceedings in Circuit Court

Benjamin Whitaker, appellant, wanted to buy a home, and asked his sister, Dorothy Whitaker, appellee, to help him with the finances. Benjamin picked out a house, and Dorothy purchased the property, taking title in her name alone on October 30, 1998. Dorothy and Benjamin agreed that Benjamin would reside in the property and pay Dorothy monthly installments to reimburse her for the $50,000 purchase money she advanced plus 10% interest. Without legal counsel, the sister and brother prepared and signed a document titled “Loan Repayment Agreement,” which confirmed that Dorothy would deed the property over to Benjamin after he had repaid Dorothy in full. The agreement, which was dated December [314]*31429, 1998, and signed February 6, 1999, provided, in pertinent part:

Agreement Between Dorothy Elain Whitaker and Benjamin Franklin Whitaker, Jr. regarding, the property, 7953 Lansdale Road, Baltimore County, Maryland 21224 which Benjamin F. Whitaker, Jr. will use as his principle [sic] residence.
I Benjamin Whitaker, Jr. agree to repay Dorothy Whitaker $50,000.00 over a period of thirty years at and [sic] interest rate of 10%. I understand that this will be paid on an amortization schedule. At the completion of payment with interest, the property of Landsdale [sic] shall be deeded to Benjamin F. Whitaker, Jr. or his designee. Benjamin F. Whitaker, Jr. will pay principle [sic] plus interest of 10% and the taxes, which he understands may and usually do increase yearly, and the home insurance as well and the water bill.
Payment is expected by the first (1st) day of each month and not to be received later than the fifth (5th) day of the month. If the payment is later than the fifth (5th) day of the month, a $30.00 late fee will be charged.
This agreement is to protect both parties, Benjamin F. Whitaker, Jr. and Dorothy Whitaker in the event of the death of either. Benjamin F. Whitaker, Jr. made an initial payment of $5,000.00 towards the above property on October 29, 1998. Because the payment went toward the purchase of the house, and not to Dorothy Whitaker, this letter of agreement, and not a receipt, is verification of the initial payment....
... If the agreement is not fulfilled by Benjamin F. Whitaker, Jr — the property will be sold by Dorothy Whitaker, with the objectives being in the order listed 1) to recoup any balance of the $50,000.00 not paid, 2) to recoup any interest lost over the periods which no payment(s) was/were made, 3) to recoup any legal cost incurred, 4) to cover cost involved in sale and settlement (if the property [315]*315must be sold) and 5) to cover repair cost, for lack of home maintenance/vandalism.

The agreement was never recorded.

Benjamin made monthly payments to Dorothy from early 1999 until July of 2002, in the aggregate amount of $20,100. During that time period, there were occasional disputes between Dorothy and Benjamin regarding the timeliness of payments and maintenance of the property. Dorothy received a number of zoning code citations as a consequence of Benjamin’s use of the property. On three occasions, Dorothy filed rent actions against Benjamin in the District Court to collect past due monthly installments.

By letter dated November 25, 2002, counsel for Benjamin advised Dorothy that it was Benjamin’s position that the Loan Repayment Agreement was a land installment contract within the scope of RP § 10—101(b); that Dorothy had failed to comply with a number of the requirements of RP § 10-102; and that, as a consequence of that non-compliance, Benjamin was exercising his statutory right to cancel the contract and requesting a refund of all monies he had paid on account of the property.

On July 28, 2003, Dorothy filed suit against Benjamin in the Circuit Court for Baltimore County, seeking enforcement of the Loan Repayment Agreement and other relief. Benjamin responded with a counterclaim, asserting his right to cancel the contract, and seeking a judgment in the amount of the refund to which he claimed entitlement.

When the case was heard on the merits, the trial judge first considered whether the transaction between Dorothy and Benjamin met the definition of a land installment contract such that it was subject to RP § 10-101 et seq. The trial judge concluded that the transaction was not within the scope of the statute, and ruled from the bench:

[T]his loan repayment agreement is not a land installment contract within the meaning of Section 10-101 et se[q]. in the [Rjeal [Pjroperty code, nor does it comply with the provisions set forth in Section 10-103.
[316]*316I find that it is more in the nature of a promissory note, and it is not a mortgage or deed of trust, that it is not a two-party agreement between Mr. Whitaker and Mrs. Whitaker, but it is a three-party agreement in that Phoenix Homes[, the party from which Dorothy purchased the property,] was the owner of the property.
The statute refers to the vendee to a vendor and a purchaser. Furthermore, there is no language in the loan repayment agreement indicating a sale and purchase as required by Section 10-101 et se[q]. It relates entirely to the repayment of a loan and not a sale.
... I indicated at the outset that certain of the items required in a land installment contract are required by Section 10—103[;] some of those items are contained in the loan repayment agreement, but others are not. Specifically, there is no provision that the vendee has the right to accelerate any installment payment.
There’s no 12-point bold type as required by Section 10-103[ (a)(7) ], and there [are] other deficiencies and noncompliance with the conditions set forth in Section 10-103.... I accept that this is not a land installment contract, but simply a loan repayment agreement executed between Ms. Whitaker and Mr. Whitaker.

Having ruled that the Loan Repayment Agreement was not a land installment that gave Benjamin a right to cancel, the trial judge entered an order for the sale of the property pursuant to the Loan Repayment Agreement, with the net proceeds to be paid to Benjamin after paying Dorothy the principal and interest remaining due on her $50,000 purchase money advance, as well as the costs of sale and repairs. Benjamin appealed, and argues that the trial court erred in ruling that the Loan Repayment Agreement was not a land installment contract. Dorothy filed a cross appeal, and argues that the trial court should have allowed her to recover all counsel fees she incurred in the enforcement of the agreement.

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Bluebook (online)
901 A.2d 223, 169 Md. App. 312, 2006 Md. App. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitaker-v-whitaker-mdctspecapp-2006.