Impact of 2009 Revision of Maryland Rules of Procedure for Foreclosures

Effective May 1, 2009, the Maryland Court of Appeals adopted new rules of practice and procedure for foreclosures of interests in real property, repealing the former rules. The new rules contain many procedural changes and, even though the impetus for the changes came from legislation impacting foreclosures of residential property, the new rules are applicable to all foreclosures, and any foreclosure practitioner must become familiar with them. In this Analysis, Jeffrey Fisher summarizes the new rules and examines the significant changes they implement. He writes:

     The impetus for the reexamination of the existing rules was emergency legislation passed by the Maryland General Assembly in April, 2008, respecting the process for foreclosures of residential mortgages and deeds of trust. However, the practitioner must remember that the rules apply to commercial as well as residential foreclosures, and a practitioner whose focus is mainly commercial might be caught unaware of many of the changes.

     The rules related to foreclosure are contained in Chapters 100 and 200, Title 14 of the Maryland Rules of Procedure, entitled "Sales of Property." There are only two rules in Chapter 100. Maryland Rule 14-101 addresses the location of a public sale of an interest in real property and contains only stylistic changes. Maryland Rule 14-102 is the procedure by which a foreclosure purchaser is to obtain a judgment awarding possession. . . .

     . . . .

Md. Rule 14-211. Stay of sale; dismissal of action

     This rule is entirely new and replaced the former injunction procedure in foreclosure actions. This rule gives standing to a broad range of actors to file a motion to stay a foreclosure, including "a person who claims an equitable interest in the property." The borrower, who, as previously noted, may not have an interest in the property, is still given standing.

     A motion to stay by the borrower or record owner, unless time is extended for good cause, must be filed within 15 days after service. A motion filed by any other person who has standing must be filed within 15 days after the movant first becoming aware of the action.

     A motion to stay is required to be under oath or supported by affidavit and must state with particularity the factual or legal basis of the defense. It is to be accompanied by any supporting documents. It is also to be accompanied by a request for the discovery of any specific supporting documents in the possession or control of the plaintiff or the secured party. This is significant because this is the first recognition in the rules of a right of discovery in a foreclosure action, a right first discussed in the recent case of Jones v. Rosenberg, 178 Md. App. 54, 940 A.2d 1109 (2008).

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