Opinion
No. 0938
09-17-2015
KEITH CHEEK, et ux. v. RICHARD A. LASH, et al. SUBSTITUTE TRUSTEES
UNREPORTED
Wright, Graeff, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ. Opinion by Moylan, J. *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
In this pro se appeal, the appellants, Keith and Lynn Cheek, are ostensibly appealing the denial by Judge John P. Miller in the Circuit Court of Baltimore City of their May 16, 2014, Motion to Stay Proceedings and Dismiss the foreclosure petition filed against their property at 3421 Kenyon Avenue in Baltimore. The appellants originally purchased the Kenyon Avenue property on November 4, 2005. The appellants had originally taken a loan of $79,500 from Lehman Brothers Bank. Their promissory note was secured by a deed of trust on the property. The deed of trust was subsequently transferred from Lehman Brothers to Nationstar Mortgage LLC, the servicing agent for Federal Home Loan Mortgage Corporation.
Following a default by the appellants, the substitute trustees, Buoonassassi, Henning & Lash, P.C., the appellees in this case, filed on April 10, 2014, an Order to Docket a foreclosure on the property. The appellants, in turn, filed their Motion to Stay Foreclosure and Dismiss on May 16, 2014. On June 6, 2014, Judge Miller signed an order denying the appellants' Motion to Stay Proceedings and Dismiss.
What has happened since June 6, 2014 is very much a procedural enigma which we do not presume to unravel. On June 18, 2014, the appellants filed the enigma in issue. The motion was entitled "Appeal to Denial of Motion to Stay Foreclosure and Dismiss." Apparently beguiled by the title "Appeal," the clerk treated the motion as a valid appeal, just as did the parties. It has, indeed, generated appellate briefs and is now before us. The motion, however, was addressed to the Circuit Court for Baltimore City. It requested the court "to reconsider the denial of [the] stay and dismiss the foreclosure petition." It ultimately prayed that "the Motion to Stay Foreclosure be granted and the matter be scheduled for a hearing on the merits of the defense raised herein."
No mention has been made by anyone as to whether this is or is not a permissible interlocutory appeal and we do not find it necessary to go there. --------
As a practical exercise in judicial economy, we will cut the Gordian knot and treat this as an appeal from Judge Miller's denial of the appellants' motion of May 16, 2014. In his Order of June 6, 2014, denying the motion, he stated:
"The motion is not under oath or supported by affidavit and does not on its face state a valid defense to the validity of the lien or the lien instrument or to the right of the plaintiff to foreclose in the pending action. Maryland Rule 14-211(b)(1)."
Maryland Rule of Procedure 14-211(a)(3) requires:
"A motion to stay and dismiss shall:
"(A) be under oath or supported by affidavit;
"(B) state with particularity the factual and legal basis of each defense that the moving party has to the validity of the lien or the lien instrument or to the right of the plaintiff to foreclose in the pending action[.]"
We agree with Judge Miller that the appellants' motion failed to satisfy either, let alone both, of those requirements. Assuming, arguendo, that the issue is properly before us, Judge Miller clearly committed no reversible error. A fortiori, a reconsideration of his ruling would not have been required. Regardless of the appropriate level of review, no error was committed.
JUDGMENT AFFIRMED; COSTS TO BE PAID BY THE APPELLANTS