Pacific Mortgage & Investment Group, Ltd. v. Wienecke

Thompson, J., delivered the opinion of the Court. Pacific Mortgage & Investment Group, Ltd., appellant, appeals from an order by Judge James H. Langrall of the Circuit Court for Baltimore County, setting aside a confessed judgment. On May 17, 1978, Rose S. Wienecke, appellee, executed a confessed judgment note promising to pay Pacific Mortgage and Investment Group, Ltd., appellant, the sum of $3,500 ninety days after its execution. On February 1, 1980, appellant filed a nar and the note in the Circuit Court for Baltimore County and a confessed judgment was entered.

Although a paper writing accompanied the nar and the note, there was no affidavit as required by Md. Rule 645 a. On February 5, 1980, the sheriff served a summons on Wienecke and made his return. On March 17, 1980, a writ of fieri facias was levied on specified goods and chattels belonging to Wienecke. It was not until April 14, 1980, 69 days after service of summons, that Wienecke filed a motion, accompanied by a supporting affidavit, to set aside the judgment.

On October 6,1980, Judge James H. Langrall granted the appellee’s motion to set aside judgment on the grounds of the mistake committed by the court clerk in entering a confessed judgment without requiring an affidavit to be filed. The entry of a judgment by confession is controlled by Md. Rule 645 which provides, in part: "a. Entry — Affidavit. Judgment by confession may be entered by the clerk upon the filing by the plaintiff of a declaration accompanied by the written instrument authorizing the confession of judgment and entitling the plaintiff to a claim for liquidated damages and supported by an affidavit made by the plaintiff or someone on his behalf stating the amount due thereunder, and indicating the post office address (including street address if neeeded to effect mail delivery) of the defendant.” ¹³⁰ Md. Rule 5c 1 states the requirements of an affidavit or oath can be satisfied in one of two ways: (1) by oath before a duly authorized officer, i.e., a notary, or (2) by signing the necessary document and incorporating the following words: "I do solemnly declare and affirm under the penalties of perjury that the contents of the aforegoing document are true and correct.” In the present case, the appellant submitted a document which did not comport with either of these provisions.

The paper writing contained neither a signature nor seal of a notary public and, while averring the information to be true, at no point did appellant "affirm under the penalty of perjury” the veracity of his statements. Thus no affidavit, as required by Md. Rule 645 a, was filed. The appellant contends that as the appellee failed to raise the issue of the invalidity of appellant’s judgment within the 30 day period before judgment became enrolled, she is precluded from subsequently attacking the judgment.