Burke v. Equitable Life Assurance Society of United States

Barnes, J., delivered the opinion of the Court. This appeal challenges an Order of the Circuit Court for Baltimore County (Barrett, C.J.), dated September 5, 1969, which allowed an attorneys’ fee of $350.00 in addition to an attorneys’ fee of $200.00 previously approved by the Circuit Court on March 4, 1969, in connection with the foreclosure of a mortgage dated March 30, 1948, on the property 801 Beechfield Avenue, Baltimore County. The mortgage was given to secure a loan of $5,800.00 made by the appellee, The Equitable Life Assurance Society of the United States (Equitable or-mortgagee), to the appellants, James M. Burke and Helen Y. Burke, his wife. The mortgage was payable in installments over a 25 year period, the first payment being due and payable on May 1, 1948, the last installment, including the unpaid balance with interest being payable on April 1, 1973.

The mortgage contains a covenant to pay - the mortgage debt and interest thereon and to pay when due, all taxes, assessments, public and other dues and charges levied and assessed on the mortgaged property. The mortgage also provides that in the event of default in the payment of the mortgage debt or any of the installments and of any covenant agreement or conditions contained in the note or mortgage and if the default continued for 30 days, the whole mortgage indebtedness at the option of the ⁵⁶¹ mortgagee shall be due and payable. Also in the event of default in the covenants of the mortgage, the mortgagee or such attorney as it might designate was authorized to sell the mortgaged property under the provisions of Article 66, Secs. 6 to 16 inclusive of the Public General Laws of Maryland (Flack’s 1939 Ed.) and amendments thereof, or under any other general or local law of Maryland relating to mortgages, “now or hereafter existing.” Upon sale of the mortgaged property either under the power of sale or by equitable foreclosure, the proceeds of sale were to be applied first to the expenses of sale “including such counsel fee as the court may deem proper, and also a commission to the party making the sale” equal to the usual commission allowed trustees in Baltimore County, and third, the balance, if any, to the mortgagors or any other person entitled thereto. Foreclosure proceedings were instituted by the mortgagee, Equitable, by a petition filed January 29, 1969, in the Circuit Court for Baltimore County, attaching the mortgage as an exhibit and alleging a default in the payment of the mortgage debt.

The Statement of Mortgage Debt, as of January 30, 1969, also filed on January 29, showed the following: “Original amount of mortgage $5,800.00 Less Total principal payments 4,324.04 Balance 1,475.96 Plus Interest due from December 1, 1968 through January 30, 1969 @ 4% on $1,475.96 9.84 Total mortgage debt claimed $1,485.80” By its order of January 29, 1969, the Circuit Court passed a decree for the sale of the mortgaged property, appointed Donald P. McPherson and John C. Cooper, III, or either of them, trustees to make the sale with a required bond of $13,500.00, with the usual requirement for ⁵⁶² publication. A cash deposit of $960.00 was required at the time of sale. A military affidavit was also filed on January 29. Thus far the foreclosure proceedings were unexceptional, but thereafter Mr. Burke, who is not a member of the Maryland Bar, entered an appearance for himself as one of the mortgagors and for Helen Y. Burke, as well as for the trustees to whom the equity of redemption had been assigned in trust and the remaindermen under that trust.

The pleadings filed by Mr. Burke are unusual. Without attempting to review them in detail, it is sufficient to state that they, in effect, contended that there was no default in the mortgage and that the Circuit Court should revoke its order of January 29, 1969, authorizing the sale of the mortgaged property. Judge Jenifer on March 4, 1969, enjoined the sale scheduled for