Griffin v. Bierman

HARRELL, J. I. Facts On 15 May 2001, Joyce Griffin and her fiancé, Herberto Tubaya, purchased a home at 70 Bar Harbor Road (the ¹⁹¹ “Property”) in Pasadena, Maryland. The deed was appropriately recorded among the land records for Anne Arundel County. Griffin testified that she and Tubaya took out a mortgage on the Property in March 2003, which they refinanced on 27 July 2004 with Argent Mortgage. 1 Tubaya died on 25 December 2004. Griffin and her daughter continued to live on the Property.

As a result of Tubaya’s death, Griffin wanted to remove his name from the deed. On or about 23 January 2005, she spoke with a representative of Ameriquest, a company at the time affiliated with and owned by the same parent company as Argent Mortgage, who informed her that he would send someone to her house that night to sign the relevant documents. Late that evening, or possibly into the early morning hours of 24 January 2005, Griffin signed the paperwork, solely in her name, taking out a new loan. The new deed of trust extinguished the 2004 mortgage on the Property, paying off a balance of $139,315.29.

The new loan was for a principal amount of $153,750.00. The adjustable rate note called for an initial rate of 7.990%, resetting on 1 February 2007. Subject to a few restrictions, the interest rate after that date would be 6.500% above the six-month London Interbank Offered Rate (LIBOR). The new deed of trust was properly recorded among the land records of Anne Arundel County.

Initial monthly payments of principal and interest were set at $1,127.10. Paragraph 15 of the new deed of trust provided that “notice to [Griffin] in connection with this Security Instrument shall be deemed to have been given to [Griffin] when mailed by first class mail or when actually delivered to [Griffin]’s notice address if sent by other means.” At all relevant times, Griffin resided at and received mail at the Property. Griffin, without the financial support of her fiancé, quickly fell into default by failing to make payments on the new loan. ¹⁹² Appellees, Howard Bierman, Jacob Gessing, Carrie M. Ward and Ralph DiPietro (“the Trustees”), were appointed as substitute trustees under the deed of trust on 15 September 2005. The Trustees docketed a foreclosure action in the Circuit Court for Anne Arundel County on 23 September 2005.

The Trustees mailed concurrently to Griffin, by certified mail 2 and first-class mail, a letter required by Maryland Code (1974, 2003 Repl.Vol.), Real Property Article, § 7-105 3 informing her that a foreclosure action “may be or has been” docketed. 4 ¹⁹³ Mrs. Griffin did not receive either letter. The letter sent by certified mail was returned to the Trustees marked “unclaimed.” The letter sent by regular mail was not returned to the Trustees by the Postal Service. On 10 October 2005, Griffin filed a chapter 13 bankruptcy petition in the United States Bankruptcy Court for the District of Maryland. The filing of the bankruptcy petition stayed the foreclosure proceedings in the Circuit Court.

Griffin voluntarily dismissed the petition in March 2006. 5 On 5 April 2006, the Trustees again sent Griffin § 7-105 notices, via certified mail and first-class mail, regarding the revitalized foreclosure proceeding. On 19 April 2006, the Trustees mailed Griffin, again via both first-class and certified mail, the notice required by Maryland Rule 14—206(b)(2) 6 ¹⁹⁴ informing Griffin of the time, date (2 May 2006), and location of the public foreclosure sale. 7 This notice also was mailed to the Property address, addressed to “Occupant,” via certified and first-class mail. The certified letter addressed to Occupant was returned to the Trustees “unclaimed.” The trial court found that Griffin did not receive any of these notices. None of the regular mailings were returned to the Trustees.

On 1 May 2006, the certified letter dated 5 April 2006 was received by the Trustees from the Postal Service marked “unclaimed.” The Property was sold at auction on 2 May 2006 to Elizabeth A. Strasnick for $223,000. Ms. Griffin did not attend the sale. The trial court found that she first was informed of the foreclosure sale, after it occurred, when Strasnick posted notice on the door of the house on the Property informing Griffin that Strasnick had purchased the Property. On 17 May 2006, 15 days after the foreclosure sale, the 19 April 2006 certified mail letter was returned to the Trustees marked “unclaimed.” It was conceded that the Trustees took no additional actions to notify Griffin of the pendency of the sale after receiving the returned “unclaimed” certified letters.

It also is without dispute that the Trustees complied with Maryland statutory law and this Court’s rules regarding notice requirements in the foreclosure process. Griffin contacted an attorney and filed exceptions to the foreclosure sale. After hearing testimony and argument, the Circuit Court issued an Order and Memorandum Opinion on 1 November 2006 refusing to set aside the foreclosure sale. The sale was then ratified.

Griffin filed a timely appeal to the Court of Special Appeals, arguing that the foreclosure process violated her right to due process of law for lack of notice. ¹⁹⁵ Before the intermediate appellate court could decide the appeal, we issued a Writ of Certiorari, on our initiative, to consider whether the Circuit Court was correct in denying Griffin’s exceptions to the foreclosure sale.

II

Standard of Review Maryland Rule 8-131(c) states: When an action has been tried without a jury, the appellate court will review the case on both the law and the evidence. It will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses. This rule has “been consistently interpreted to require that appellate courts accept and be bound by findings of fact of the lower court unless they are clearly erroneous.” Ryan v. Thurston, 276 Md. 390, 392 , 347 A.2d 834, 835 (1975); see also Schade v. Md. State Bd. of Elections, 401 Md. 1, 33 , 930 A.2d 304, 322 (2007). “The deference shown to the trial court’s factual findings under the clearly erroneous standard does not, of course, apply to legal conclusions.” Nesbit v. Gov’t Employees Ins. Co., 382 Md. 65, 72 , 854 A.2d 879, 883 (2004).

We, instead, review de novo the trial court’s legal conclusions. Goff v. State, 387 Md. 327, 337-38 , 875 A.2d 132, 138 (2005).

III

Analysis The veneer of Griffin’s challenge to the foreclosure sale is that her right to due process of law, guaranteed by the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights, 8 was violat ¹⁹⁶ ed, in application, by the failure to receive advance notice of the sale. Although Griffin firmly maintains that her constitutional objections are in the form of an “as-applied” challenge, but necessarily, her arguments embrace, as well, a facial challenge to the Maryland foreclosure notice scheme. 9 A ¹⁹⁷ finding in Griffin’s favor would compel an obligation requiring that a foreclosing mortgagee provide proof of actual notice to the mortgagor. Because such a ruling would have such a profound effect on the notice foreclosure scheme, Griffin’s challenge first must be treated as a facial challenge. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprize interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 , 70 S.Ct. 652, 657 , 94 L.Ed. 865 (1950).

The method of giving notice to affected parties must be such “as one desirous of actually informing the absentee might reasonably adopt to accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain to inform those affected____” Mullane, 339 U.S. at 315 , 70 S.Ct. at 657 . The “constitutionality of a particular procedure for notice is assessed ex ante, rather than post hoc.” Jones v. Flowers, 547 U.S. 220, 231 , 126 S.Ct. 1708, 1717 , 164 L.Ed.2d 415 (2006). “The proper inquiry is whether the state acted reasonably in selecting means likely to inform persons affected, not whether each property owner actually received notice.” Weigner v. City of New York, 852 F.2d 646, 649 (2d Cir.1988). There is no cookie cutter paradigm for determining the constitutionality of a particular procedure designed to convey notice. “[D]ue process is flexible and calls only for such procedural protections as the particular situation demands.

Procedures adequate under one set of facts may not be sufficient in a different situation.” Dep’t of Transp. v. Armacost, 299 Md. 392, 416 , 474 A.2d 191, 203 (1984). “To determine whether notice in ,a particular case is constitutionally sufficient, the court ‘must balance the interests of the state or the giver of notice against the individual interest sought to be protected by the fourteenth amendment.’ ” Miserandino v. Resort Props., Inc., 345 Md. 43, 53 , 691 A.2d 208, 212 (1997) (quoting Golden ¹⁹⁸ Sands Club Condo. v. Waller, 313 Md. 484, 496 , 545 A.2d 1332, 1338 (1988)); see also Jones, 547 U.S. at 229 , 126 S.Ct. at 1715 (stating that “assessing the adequacy of a particular form of notice requires balancing the ‘interest of the State against the individual interest sought to be protected by the Fourteenth Amendment’ ” (quoting Mullane, 339 U.S. at 314 , 70 S.Ct. at 657 )); Golden Sands, 313 Md. at 501 , 545 A.2d at 1341 (“It is ... true that the more significant the interest at stake, the greater the required certainty that the notice will be effective.”). “We are dealing here with the notice requirements of procedural due process. In that context, actual receipt of notice is not the test.” Golden Sands, 313 Md. at 500 , 545 A. 2d at 1340 . Due process “does not require a showing by the State that an interested party received actual notice, and ‘[n]otice by mail is ordinarily presumed to be constitutionally sufficient.’ ” Crum v. Vincent, 493 F.3d 988, 993 (2007) (quoting Nunley v. Dep’t of Justice, 425 F.3d 1132 , 1136 (8th Cir.2005)); see also Jones, 547 U.S. at 226 , 126 S.Ct. at 1713 (“Due process does not require that a property owner receive actual notice before the government may take his property.”). “In general, ‘reasonably calculated notice’ under Mullane is met where the government sends a notice to the address provided by a party pursuant to a legal requirement to provide the government with an address.” In re Duran, 347 B. R. 760, 767 (Bankr.D.Colo.2006). Due process “does not require with regard to notice that ‘the state ... erect an ideal system for the administration of justice which is impervious to malfunctions.’” Carroll v. D.C. Dep’t of Employment Serv., 487 A.2d 622, 623 (D.C.1985) (quoting Osborn v. Review Bd. of Ind.

Employment Sec. Div., 178 Ind.App. 22 , 381 N.E.2d 495, 500 (1978)). The Supreme Court has elaborated, on two recent occasions, on the Mullane standard. First, in Dusenbery v. United States, 534 U.S. 161 , 122 S.Ct. 694 , 151 L.Ed.2d 597 (2002), the Supreme Court held that the sending of a certified letter, though not received by the interested party, satisfied due ¹⁹⁹ process. In Dusenbery , the government initiated a forfeiture proceeding against an inmate to recover cash seized during the course of an The government sent certified letters to the prison, to the inmate’s mother’s house, and the inmate’s former address.

Dusenbery, 534 U.S. at 164 , 122 S.Ct. at 698 . The inmate claimed that he never received notice of the forfeiture proceeding. Id. The Supreme Court noted that actual notice is not required to satisfy constitutional due process.

Dusenbery, 534 U.S. at 170 , 122 S.Ct. at 701 . Instead, due process “requires only that the Government’s effort be reasonably calculated to apprize a party of the pendency of the action.” Id. (internal quotations omitted). The Supreme Court concluded that the inmate’s right to due process was not violated.

Dusenbery, 534 U.S. at 172 , 122 S.Ct. at 702 . In Jones v. Flowers, 547 U.S. 220 , 126 S.Ct. 1708 , 164 L.Ed.2d 415 (2006), the State of Arkansas sent certified letters to a property owner indicating that his property taxes were in arrears and the property would be sold at a tax sale. The letters were returned “unclaimed.” Jones, 547 U.S. at 224 , 126 S.Ct. at 1712 . The State then published notice of the tax sale in a local newspaper.

Id. The property eventually was sold at a tax sale, unbeknownst to the delinquent property owner. Jones, 547 U.S. at 224 , 126 S.Ct. at 1713 . The Supreme Court held that where the State knew that the certified notice letters, the only type of notice required to be sent under the relevant statute, was not delivered, the State must take further reasonable steps to attempt to notify the interested party.

Jones, 547 U.S. at 230 , 126 S.Ct. at 1716 . Although the Supreme Court refused to “to prescribe the form of service that the [government] should adopt,” the Court listed several additional steps that Arkansas could have taken. Jones, 547 U.S. at 234 , 126 S.Ct. at 1718 . “One reasonable step ... required.” Jones, 547 U.S. at 234 , 126 S.Ct. at 1719 . “Other reasonable follow-up measures would have been to post notice on the front door or address otherwise undeliverable mail to ‘occupant.’ ” Jones, 547 U.S. at 235 , 126 S.Ct. at 1719 . ²⁰⁰ We conclude that the Maryland foreclosure notice process passes constitutional muster. The Maryland foreclosure scheme, as applied in the present case, represents a hybrid of the situations discussed in Jones and Dusenbery .

Like Dusenbery , the Trustees in the present case did not have certain knowledge that Griffin had not received notice. The letters sent via first-class mail and certified mail were identical. In fact, each letter would reveal to a reader that another, identical letter had been sent via the other form of postal delivery. A recipient of the first-class mail notice, therefore, likely would not go to the post office to sign for a duplicate letter which, in substance, he or she had received already.

This is confirmed by the Trustees’ repeated assertions, both in the Circuit Court and at oral argument before this Court, that a high percentage of certified mail notices in a dual mailing requirement scheme, such as exists in Maryland’s mortgage foreclosure scheme, are returned “unclaimed.” See Crum v. Mo. Dir. of Revenue, 455 F.Supp.2d 978, 989 (W.D.Mo.2006) aff'd sub nom. Crum v. Vincent, 493 F.3d 988 (8th Cir.2007) (“[T]he Board had recently sent notices to the address provided by Richards [via first-class mail] and the notices were not returned. Thus, when the certified letters were returned, it was reasonable for the Board ... to correctly conclude that Richards’s refusal to claim the latest notices was the result of choice____”).

In Jones , by contrast, the State of Arkansas knew for certain that the property required to employ, certified mail, was returned unclaimed. 10 Jones, 547 U.S. at 224, 126 S.Ct. at 1712 . ²⁰¹ The Trustees in the instant case, following Maryland’s notice requirements, satisfied the alternative steps considered by the Supreme Court in Jones . The Supreme Court suggested that Arkansas could provide for sending notice via first-class mail. Jones, 547 U.S. at 234 , 126 S.Ct. at 1719 . The Trustees pertinently did that twice following the lifting of the bankruptcy stay.

The Supreme Court also suggested that Arkansas could send notices to “Occupant” via first-class mail. Jones, 547 U.S. at 235 , 126 S.Ct. at 1719 . The Trustees sent notice to “Occupant” via first-class and certified mail. It is of no consequence that the Trustees sent notices via first-class mail at the same time as they sent the certified mail notices.

The Maryland scheme assumes a worst case scenario, that the certified mail would be undeliverable, therefore first-class mail notice is necessary in conjunction with the certified mail, even if the certified mail is delivered successfully. Section 7-105 of the Maryland Code and Maryland Rule 14-206 are not constitutionally infirm merely because they do not require the certified mail to be returned as undeliverable prior to requiring the Trustees to send notice via first class mail. The only ²⁰² substantive difference between the Maryland scheme and the satisfactory schemes inventoried by the Supreme Court in Jones is that Maryland requires first-class mail to be sent in all cases, whereas the Supreme Court suggested that it was necessary only in cases where the certified mail is returned to the sender undelivered. 11 Jones, 547 U.S. at 234, 126 S.Ct. at 1719 . Griffin attempts to carve the Maryland notice scheme into its individual pieces, arguing that each individual element, on its own, is constitutionally deficient.

Therefore, Griffin contends, she was deprived of due process. She correctly notes that Jones holds that, on its own, certified mail that is returned “unclaimed” does not satisfy due process. Seizing on our holding in Miserandino , Griffin maintains that notice sent via first class mail, standing alone, does not satisfy due process. Finally, conveying notice solely by publication, when the addresses of the interested parties are reasonably available to the sender, does not satisfy due process.

Mullane, 339 U.S. at 318 , 70 S.Ct. at 659 ; Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 799-800 , 103 S.Ct. 2706, 2711 , 77 L.Ed.2d 180 (1983). Because each individual component would not satisfy due process on its own, Griffin argues, the foreclosure scheme as a whole is constitutionally infirm. Griffin’s argument fails for two reasons. First, our holding in Miserandino is easily distinguishable from the instant case.

In Miserandino , a Virginia company obtained a judgment in Virginia courts against Maryland residents. Miserandino, ²⁰³ 345 Md. at 47 , 691 A.2d at 209 . The company gave notice of the proceeding to the Maryland residents by sending service of process via first-class mail, as permitted by the Virginia rules. Miserandino, 345 Md. at 56-57 , 691 A.2d at 214 .

When the Virginia company attempted to execute the judgment in Maryland, we held that the original service of process via first-class mail was insufficient to convey notice in an action for a money judgment. Miserandino, 345 Md. at 68 , 691 A.2d at 220 . We repeatedly noted that the nature of the action was a significant factor in our holding. “Among the multiple factors to be considered in brought.” Miserandino, 345 Md. at 53 , 691 A.2d at 213 . “Although the distinction between in rem and in personam actions no longer offers a per se solution to problems of notice, the nature of the action continues to be relevant.” Miserandino, 345 Md. at 54 , 691 A.2d at 213 . The case before us is not in rem or quasi in rem.

This case involves an attempt by one party to obtain a money judgment against another party or parties for an alleged breach of a promise to pay. It is a classic example of a case requiring the acquisition of in personam jurisdiction. Historically, in-hand delivery of process has been the preferred method of service in a case of this kind.... Miserandino, 345 Md. at 55-56 , 691 A.2d at 214 .

Miserandino is distinguishable from the instant case. In contrast to Miserandino , the instant foreclosure action is an in rem proceeding, although that description alone would not be dispositive of a constitutional challenge. G.E. Capital Mortgage. Servs., Inc. v. Levenson, 338 Md. 227, 245 , 657 A.2d 1170, 1178 (1995); Wells Fargo Home Mortgage., Inc. v. Neal, 398 Md. 705, 726 , 922 A.2d 538, 550 (2007).

In the instant case, Griffin authorized service by mail in Paragraph 15 of the deed of trust and knew that she had fallen behind in mortgage payments. This is not comparable to the original, long-arm service of process at issue in Miserandino. 12 “The Supreme ²⁰⁴ Court has frequently said ... that, under most circumstances, notice sent by ordinary mail is deemed reasonably calculated to inform interested parties that their property rights are in jeopardy.” Weigner v. City of New York, 852 F.2d 646, 650 (2nd Cir.1988) (citing Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 490 , 108 S.Ct. 1340, 1343 , 99 L.Ed.2d 565 (1988); Mennonite Bd., 462 U.S. at 800 , 103 S.Ct. at 2712 ; and Mullane, 339 U.S. at 319 , 70 S.Ct. at 659 ). A distinction is properly made also because Miserandino was decided on Federal constitutional grounds. Because we decide that the notice process in the instant case satisfies federal constitutional requirements based on recently decided Supreme Court precedent, reliance on Miserandino to attack the notice in the instant case is misplaced.

Second, the whole of the Maryland notice scheme is greater than the sum of its parts. See Turner v. Blackburn, 389 F.Supp. 1250, 1258 (W.D.N.C.1975) (“Defendants have urged, in effect, that we examine the various elements of the foreclosure proceeding as disparate bits and pieces. But ... we view the statutory framework as a coherent entity.”). That this precept is more compelling in an analysis of the constitutional challenge at hand than Griffin’s urging is supported by the Supreme Court’s consideration in Jones of several reasonable measures, although perhaps insufficient each on its own, that would be part of an entire scheme that satisfies due process.

For example, the Supreme Court recommended that Arkansas post notice on the property in question or send mail addressed to “Occupant.” Jones, 547 U.S. at 235 , 126 S.Ct. at 1719 . Posting, however, is more vulnerable to constitutional attack ²⁰⁵ than either certified or first-class mail. It is well settled that posting, on its own, may not satisfy due process. See Greene v. Lindsey, 456 U.S. 444, 455-56 , 102 S.Ct. 1874, 1880 , 72 L.Ed.2d 249 (1982) (holding that posting notice and publication of notice in newspaper were unreliable, and therefore, constitutionally inadequate, but noting that “[n]otice by mail in the circumstances of this case would surely go a long way toward providing the constitutionally required [due process]”); Schroeder v. City of New York, 371 U.S. 208 , 83 S.Ct. 279 , 9 L.Ed.2d 255 (1962) (same).

Similarly, it seems doubtful that the Supreme Court would endorse solely sending a letter addressed to “Occupant” as sufficient notice. These seemingly inadequate methods of delivering notice when considered individually, however, were endorsed by the Supreme Court in Jones because, together with other methods of conveying notice, they may combine to produce a constitutionally sufficient notice system. Jones, 547 U.S. at 235 , 126 S.Ct. at 1719 . Despite Griffin’s dogged efforts at oral argument to evade a response to this Court’s questions aimed at determining what she thought would be notice actions, the inescapable conclusion of her argument, taken to its logical end, is that due process requires personal service in mortgage foreclosure actions. 13 Griffin requests that we declare the foreclosure notice scheme unconstitutional without consideration of other reasonable steps that could have been taken in this case.

Such a holding would constitute narrowly parsed and confusing jurisprudence. To paraphrase the Supreme Court in Jones , “if there were no reasonable additional steps the [Trustees] could have taken upon return of the unclaimed notice letter, it cannot be faulted for doing nothing.” Jones, 547 U.S. at 234 , 126 S.Ct. at 1718 . The only remaining reasonable ²⁰⁶ method of conveying notice that would conceivably have made a difference in the present case is posting notice on the Property. As discussed above, however, posting is an unreliable and constitutionally insufficient form of notice.

Moreover, the posting of property gives no feedback to the sender regarding whether notice actually was received. In this respect, it is less reliable and useful than either first-class 14 or certified mail. The final remaining method of conveying notice is personal service. Personal service is the only method of conveying notice that is certain to convey actual notice.

Personal service is, therefore, the only method that would seem to satisfy Griffin’s complaints about notice. There may be merit, as a policy matter, to requiring that mortgagees personally serve property owners with notice of foreclosure. It is not, however, required to satisfy the constitutional requirements of due process. The Supreme Court expressly spurned the notion that the State must look in the phonebook or income tax rolls to attempt to convey notice to an interested property owner.' Jones, 547 U.S. at 235 -36 at 126 S.Ct. at 1719 .

Due process cannot be said to require personal service when it does not require flipping through the local phonebook. Griffin cites no authority, and our research reveals none, for the proposition that due process mandates personal service of process in mortgage foreclosures. Our conclusion is buttressed by an older Supreme Court case, Nelson v. City of New York, 352 U.S. 103 , 77 S.Ct. 195 , 1 L.Ed.2d 171 (1956), decided six years after the Supreme ²⁰⁷ Court’s landmark decision in Mullane. In Nelson v. City of New York, the City of New York mailed a copy of the newspaper-published notice of the foreclosure proceeding to the property owner’s correct address.

Nelson v. City of New York, 352 U.S. at 105 , 77 S.Ct. at 197 . The property owner argued that he did not receive actual notice of the foreclosure sale, suggesting that the notice may have been concealed from him by his bookkeeper. Nelson v. City of New York, 352 U.S. at 107 , 77 S.Ct. at 197 . The Supreme Court held that due process was satisfied when the notice was mailed to the correct address, despite the fact that the property owner did not receive actual notice. 15 Nelson v. City of New York, 352 U.S. at 109-10 , 77 S.Ct. at 198 .

The Court concluded, “We hold that nothing in the Federal Constitution prevents [foreclosing and retaining the proceeds of sale] where the record shows adequate steps were taken to notify the owners of the charges due and the foreclosure proceedings.” Nelson v. City of New York, 352 U.S. at 110 , 77 S.Ct. at 199 . Nelson v. City of New York remains good law, and recently was cited with approval in harmony with Jones. Tupaz v. Clinton County, N.Y., 499 F.Supp.2d 182, 187-92 (N.D.N.Y.2007). Nelson v. City of New York and later cases have been read to authorize notice via first-class mail in foreclosure proceedings. 16 See Hollander v. City of New York, 130 Misc.2d 1039 , 498 N.Y.S.2d 953, 955 (N.Y.Sup.Ct.1985) (Further examination of the Mennonite Mission BoardJMennonite Bd. of Missions] case reveals that the court repeatedly cited the Mullane case with approval, and after its reference, with approval of the Nelson v. City of ²⁰⁸ New York case, immediately following; in fact, in the very next paragraph stated ‘Personal service or mailed notice is required----’----Thus, in the context of the court’s citation of Nelson v. City of New York, the omission of the words ‘certified mail’ can only mean that the court intended to also approve ‘ordinary mail.’).

Assuming, arguendo, that we were to accept Griffin’s challenge to the notice scheme solely as an “as-applied” challenge, our conclusion would be the same. An “as-applied” challenge is a claim that a valid law is “unconstitutional on the facts of a particular case or in its application to a particular party.” BLACK’S LAW DICTIONARY 244 (8th ed.1999). As noted above, the only fact distinguishing the instant case from the typical foreclosure case is that the trial judge found as a matter of fact that Griffin did not receive actual notice of the pending foreclosure sale. The fact that Griffin did not receive actual notice does not render the law unconstitutional as applied to her.

It is well settled that due process of law is not violated in application because the interested party did not receive actual notice. See Nelson v. Diversified Collection Servs. Inc., 961 F.Supp. 863, 868 (D.Md.1997) (“Ms. Nelson’s as applied procedural due process arguments rest on the idea that she did not receive notice. The key to the analysis, however, is whether the notice was mailed, not whether it was received----”); Jones, 547 U.S. at 226 , 126 S.Ct. at 1713 (“Due process does not require that a property owner receive actual notice before the government may take his property.”); Golden Sands, 313 Md. at 502 , 545 A.2d at 1341 (stating that “provision for (not receipt of) actual notice” is the proper constitutional standard for notice schemes); Weigner v. City of New York, 852 F.2d 646, 649 (2d Cir.1988) (“The proper inquiry is whether the state acted reasonably in selecting means likely to inform persons affected, not