Svrcek v. Rosenberg

ARRIE W. DAVIS (Retired, Specially Assigned), J. This appeal arises out of a foreclosure sale of property owned by Paul Svrcek, appellant. On October 8, 2009, Diane S. Rosenberg, Mark D. Meyer, and John A. Ansell III, appellees, acting as substitute trustees, commenced an action to foreclose a lien pursuant to a power of sale by filing an order to docket in the Circuit Court for Queen Anne’s County. On January 29, 2010, Svrcek’s property was sold to “Citibank, N.A. as Trustee for the Certificateholders of Structured Asset Mortgage Investments II, Inc., Bear Stearns ALT-A Trust, Mortgage Pass-Through Certificates Series 2006-4.” The circuit court entered a final ratification of the sale on July 14, 2010 and this timely appeal followed. Issues Presented Svrcek presents three issues 1 for our consideration, which we have rephrased slightly as follows: ⁷⁰⁹ I. Whether appellees had the legal right to initiate a foreclosure; II.

Whether the appointment of appellees as substitute trustees was not effective because it was executed by an attorney in fact without a power of attorney recorded in the land records of Queen Anne’s County; and, III. Whether the deed of trust was invalid because it failed to name an individual as trustee and the Legislature could not make it valid through curative legislation. For the reasons set forth below, we shall affirm. FACTUAL AND PROCEDURAL BACKGROUND On November 4, 2005, Svrcek executed an adjustable rate promissory note in the amount of $486,000 to Taylor, Bean & Whitaker Mortgage Corp. for the purpose of refinancing his property located at 100 Holly Court in Stevensville.

The note was secured by a deed of trust, executed on the same date, to Taylor, Bean & Whitaker Mortgage Corp. The deed of trust contained a power of sale provision. It is uncontroverted that, on or before June 1, 2006, Svrcek’s loan was sold or transferred into a pool of securitized trust, “Structured Asset Mortgage Investments II, Inc., Bear Stearns ALT-A Trust, Mortgage Pass-Through Certificates Series 2006-4.” 2 Citibank, N.A. was named as Trustee and ⁷¹⁰ EMC Mortgage Corporation was named as servicer. It is also uncontroverted that, for about three years, Svrcek made payments on the note to EMC Mortgage Corporation. On or about July 31, 2009, Svrcek received a notice of intent to foreclose on his property.

The notice identified the mortgage lender as “TAYLOR BEAN & WHITAKER,” the loan servicer as “EMC Mortgage Corporation,” and the secured party as “Citibank, N.A. as Trustee for the Certificateholders of Structured Asset Mortgage Investments II, Inc., Bear Stearns ALT-A Trust, Mortgage Pass-Through Certificates Series 2006-4,” which we shall hereinafter refer to as “Citibank, N.A. as Trustee.” ⁷¹¹ On October 8, 2009, appellees Diane S. Rosenberg, Mark D. Meyer and John A. Ansell III, acting as substitute trustees, filed in the Circuit Court for Queen Anne’s County an order to docket pursuant to Maryland Rules 14-204 3 and 14-207. 4 The ⁷¹² order to docket was accompanied by a number of documents, including: (1) a copy of the promissory note executed by Svrcek and naming Taylor Bean & Whitaker Mortgage Corp. as the lender; (2) a deed of appointment of substitute trustees dated September 22, 2009, and filed in the circuit court on October 8, 2009, by which appellees were named substitute trustees by “EMC Mortgage Corporation as Attorney in Fact for Citibank, N.A. as Trustee for the Certificateholders of Structured Asset Mortgage Investments II, Inc., Bear Stearns ALT-A Trust, Mortgage Pass-Through Certificates Series 2006-4,” (hereinafter referred to as “EMC Mortgage Corp. as Attorney in Fact for Citibank, N.A. as Trustee”); and, (3) a deed of trust that named Taylor Bean & Whitaker Mortgage ⁷¹³ Corp. as the lender. 5 ⁷¹⁴ On October 15, 2009, the circuit court entered a memorandum order that provided as follows: No foreclosure sale may occur in this matter until the following deficiencies in the Order to Docket are cured: 1. The affidavit regarding the required Notice of Intent to Foreclose must include, in addition to the date on which notice was sent, a statement that the requirements of § 7-105.1(e)(2)(i)(ii) of the Real Property Article were met, together with the original of the return receipt, purportedly sent on July 31, 2009. 2. The recorded original or a certified copy of the assignment of the mortgage/deed of trust and/or certified copy of assignment of note from Taylor, Bean & Whitaker Mortgage Corp. to EMC Mortgage Corporation as Attorney in Fact for Citibank, N.A., as Trustee for Certificateholders of Structured Asset Mortgage Investments II, Inc., Bear Stearns ALT-A Trust, Mortgage Pass-Through Certificates, Series 2006-4. As to the second deficiency, the court also noted that “[a]n alternative would be to file the original note.” Appellees filed a motion to reconsider in which they argued that the affidavit they filed met the requirements of Md.Code (2003 Repl.Vol., 2009 Cum.Supp.), § 7-105.1 of the Real Property Article (R.P.), 6 and that neither that section nor Md. Rule ⁷¹⁵ 14-207 required the filing of the original return receipt for the certified mailing of the notice of intent to foreclose.

On December 3, 2009, Svrcek responded by filing an “Emergency Motion to Enforce Order and Shorten Time to Respond,” in which he opposed appellees’ motion to reconsider on the ground that they did not address the second deficiency noted by the court, and requested the court to stay the foreclosure sale and rule on the pending motions before December 4, 2009, the scheduled date for the foreclosure sale. On December 7, 2009, appellees responded to Svrcek’s “Emergency Motion” by stating, among other things, that they did not address the second deficiency because they “were awaiting a copy of the recorded assignment from the land records,” and that a “copy of the recorded assignment is being filed simultaneously with this response.” The document filed by appellees was a photocopy of an assignment of a deed of trust executed on October 22, 2009, and filed in the circuit court on October 30, 2009, by which ⁷¹⁶ Taylor, Bean & Whitaker Mortgage Corp. assigned the deed of trust executed by Svrcek on November 4, 2005, to EMC Mortgage Corp. as Attorney in Fact for Citibank, N.A. as Trustee. On December 8, 2009, the circuit court denied Svrcek’s motion as “moot,” noting that Svrcek had “actual notice based upon his filing of a motion” on December 3, 2009, and that appellees had “filed the requisite assignment.” On January 7, 2010, Svrcek filed a motion to vacate the sale 7 and dismiss the foreclosure proceedings in which he requested, among other things, that the sale of the subject property be stayed and that appellees be required to produce certain documentation. Specifically, Svrcek argued that he was not indebted to Citibank, N.A., as Trustee because it did not own the promissory note and did not have authority to appoint appellees as substitute trustees and, as a result, appellees lacked standing to foreclose on his property.

According to Svrcek, appellees failed to establish the identity of the true owner and holder of the promissory note as well as a valid chain of title transferring ownership of the loan from the original lender to EMC Mortgage Corp. as Attorney in Fact for Citibank, N.A. as Trustee. Svrcek argued that the October 22, 2009 assignment of the deed of trust from Taylor, Bean & Whitaker Mortgage Corp. to Citibank, N.A. as Trustee, which was filed among the land records of Queen Anne’s County on October 30, 2009, was not valid and that Citibank, N.A. as Trustee was not the secured party at the time the order to docket was filed on October 8, 2009. Svrcek requested the court to require appellees to produce the original promissory note, a full accounting of money paid and received on Svrcek’s account and proof that EMC Mortgage Corp. as Attorney in Fact for Citibank, N.A. as Trustee had “not received third-party payments on ⁷¹⁷ [Svrcek’s] loan obligation and is unaware that any such third-party payments have been made.” On January 26, 2010, appellees filed an opposition to Svrcek’s motion on the ground that it was untimely because, contrary to the provisions of Maryland Rule 14-211(a)(2), 8 his request for a stay was filed more than fifteen days after service of the order to docket. In addition, appellees argued that Citibank, N.A. as Trustee was the owner of the debt notwithstanding the fact that the assignment of the deed of trust was executed after the order to docket was filed.

Appel-lees asserted that the note was actually transferred to Citibank, N.A. as Trustee on April 3, 2006, and that the unassigned deed of trust secured the holder of the note, Citibank, N.A. as Trustee. In response to Svrcek’s argument that the note was not validly transferred to Citibank, N.A. as Trustee because there was no endorsement on it, appellees asserted that “most endorsements are on the back page of the original note” and the original note in the instant case was “in the document vault of EMC Mortgage, the servicing agent and Citibank’s attorney in fact.” In addition, appellees argued that there is no Maryland law or rule that requires the production of the original note. On January 29, 2010, the property was sold at public auction to Citibank, N.A. as Trustee and, thereafter, appellees filed a report of sale with the court. ⁷¹⁸ Notwithstanding their claim that the original note was in a document vault belonging to EMC Mortgage Corp., at a motions hearing on February 23, 2010, appellees produced a “Lost Note Affidavit” in which EMC Mortgage Corp., as Attorney in Fact for Citibank, asserted: 1. The original Note was dated November 4, 2005, in the original principal amount of Four Hundred Eighty-Six Thousand, and 00/100 Dollars ($486,000.00) and secured by that certain Deed of Trust executed by Paul Svrcek dated November 4, 2005 and recorded in the Land Record Office for Queen Anne’s County, Maryland at Liber 1485, Folio 267.

The Note bears interest at a rate of 5.875% (per cent) per annum. 2. That the original Note has been lost, but a copy is attached. 3. That the holder of the Note is EMC Mortgage Corporation as Attorney in Fact for CITIBANK, N.A. AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF STRUCTURED ASSET MORTGAGE INVESTMENTS II, INC., BEAR STEARNS ALT-A TRUST, MORTGAGE PASS THROUGH CERTIFICATES SERIES 2006-4. 4. That the Note is in default.

After the February 23, 2010 hearing, Svrcek filed a motion to vacate a void sale, to dismiss the foreclosure, and impose sanctions, in which he argued, inter alia, that the lost note affidavit should be stricken from the record, that appellees should be required to produce the original promissory note and that appellees never had standing to bring the foreclosure action and sell the subject property. Appellees opposed Svrcek’s motion on numerous grounds, including that Md. Rule 14-207(b)(3) required only a copy of the note or debt instrument, along with an affidavit declaring it to be a true and accurate copy and certifying ownership of the note or debt instrument, both of which were previously provided to Svrcek. On May 26, 2010, the circuit court issued a written memorandum and order denying Svrcek’s motions and overruling his exceptions to the sale of the property. The court deter ⁷¹⁹ mined that good cause did not exist for Svrcek’s late filing of his motion to stay, that the order to docket properly identified the holder of the note, that the deed of trust followed the note and that the copy of the note, which was filed with a certificate stating that the note was a true and correct copy of the original, was sufficient to satisfy Md. Rule 14—207(b)(3), which required only a copy of the note.

In addition, the court stated: The Court does not find any of the arguments of defendants [sic] persuasive. Defendant is clearly in default on his contractual obligations, including specifically the underlying loan payments, and there is no suggestion to the contrary. The issue focuses on the standing of the purported noteholder to appoint the substitute trustees and/or to enforce the note through a foreclosure sale. There is no need to take evidence in this case.

Md. Rule 14—305(d)(2). None of the claimed factual or legal bases presented by defendant provides any basis for either staying these proceedings, much less setting aside the sale, as defendant is clearly in default and plaintiffs are properly foreclosing as it is a remedy available to them and prescribed in the deed of trust and by statute. The Court will deny the motions and ratify the sale. (Internal footnote omitted).

On July 14, 2010, the court issued a final order ratifying the sale and referred the case to an auditor. This timely appeal followed. DISCUSSION I Svrcek first contends that appellees did not have the legal right to initiate the foreclosure proceeding under the Maryland Rules and, therefore, he was entitled to have the sale stayed and the foreclosure proceeding dismissed. We disagree and explain. ⁷²⁰ A. Standard of Review As the Court of Appeals stated in Bates v. Cohn, 417 Md. 309 , 9 A.3d 846 (2010), “[b]efore a foreclosure sale takes place, the defaulting borrower may file a motion to ‘stay the sale of the property and dismiss the foreclosure action.’ ” Id. at 318 , 9 A.3d 846 (quoting Md. Rule 14-211(a)(l)).

In other words, the borrower “may petition the court for injunctive relief, challenging ‘the validity of the lien or ... the right of the [lender] to foreclose in the pending action.’ ” Id. at 318-19 , 9 A.3d 846 (quoting Md. Rule 14-211(a)(3)(B)). “The grant or denial of injunctive relief in a property foreclosure action lies generally within the sound discretion of the trial court.” Anderson v. Burson, 424 Md. at 243, 35 A.3d 452 (2011)(and cases cited therein). Accordingly, we review the circuit court’s denial of a foreclosure injunction for an abuse of discretion. Id. We review the trial court’s legal conclusions de novo.

Wincopia Farm, LP v. Goozman, 188 Md.App. 519, 528 , 982 A.2d 868 (2009). B. Svrcek’s Motion to Enforce and Shorten Time Preliminarily, we note that the trial court’s conclusion that the motion was moot was proper because appellees had complied with all of the requirements of R.P. § 7-105.1(d)(2) and Maryland Rule 14-207(b). Along with, and in support of, their order to docket, appellees provided copies of the following: the promissory note and deed of trust; an affidavit of note ownership identifying the owner of the promissory note as EMC Mortgage Corporation as Attorney in Fact for Citibank, N.A. as Trustee; a certificate stating that the copy of the note that was attached was “a true and accurate copy of the same as delivered [to the substitute trustees] by the note holder and/or its servicing agent;” an affidavit pursuant to R.P. § 7.105.1 and Md. Rule 14-207; a statement of debt; and, a copy of the deed appointing them as substitute trustees. A question is moot “if, at the time it is before the court, there is no longer an existing controversy between the parties, so that there is no longer any effective remedy which the court can provide.” Bd. of Physician ⁷²¹ Quality Assurance v. Levitsky, 353 Md. 188, 200 , 725 A.2d 1027 (1999)(quoting Attorney Gen. v. Anne Arundel County School Bus Contractors Assoc., 286 Md. 324, 327 , 407 A.2d 749 (1979)).

Svrcek’s motion centered on whether the foreclosure sale should be stayed due to appellees’ failure to correct the deficiencies noted in the trial court’s October 14, 2009 order. Clearly, the papers filed by appellees corrected the deficiencies and, as a result, the issue was rendered moot. C. Timeliness Nor did the court abuse its discretion in denying Svrcek’s initial motion (to the extent that it sought to stay the sale and dismiss the foreclosure proceeding), or his subsequently filed motion to “vacate” the sale and dismiss the foreclosure proceedings because both were untimely. Under Md. Rule 14-211, Svrcek was required to file a motion to stay the sale of the property and dismiss the foreclosure action “within 15 days after service pursuant to Rule 14-209 of an order to docket or complaint to foreclose.” Md. Rule 14-211 (2009 Supp.).

Although a court may extend the time for filing the motion or excuse non-compliance for good cause shown, it did not find good cause to do so in this case. Id. Svrcek admitted in his affidavit in support of his motion to stay the sale of the property and dismiss the foreclosure action that he “first became aware of the foreclosure proceedings when [he] was served with an Order to Docket on or about October 10, 2009.” Svrcek claimed that he did not know he had fifteen days to file such a response because there was “nothing so noted in the Order to Docket of any time frame in which to respond.” As we have said on many occasions, however, “ignorance of the law is no excuse.” Hi Caliber Auto and Towing, Inc. v. Rockwood Cas. Ins.

Co., 149 Md. App. 504, 508 , 817 A.2d 274 (2003). Accordingly, the circuit court did not err in concluding that Svrcek did not have good cause for failing to file his request for a stay of the sale or the dismissal of the foreclosure action within fifteen days as required by the rule, or in denying his motion on the ground that it was not filed in a timely manner. ⁷²² D. No Valid Defense to the Validity of the Lien or Lien Instrument Even if the circuit court had found good cause for the late filing of Svrcek’s motion, the court would have acted properly in denying the motion because it failed to state a legitimate defense to the validity of the hen or the hen instrument and the right of the appellees to foreclose. Md. Rule 14—211(b)(1)(C). For the same reason, even if we assume that the arguments raised in Svrcek’s post-sale motion to vacate a void sale, to dismiss the foreclosure and impose sanctions were appropriately raised under Md. Rule 14-305, the court did not err in denying them because the motion raised substantially the same issues that were presented in Svrcek’s earlier motions. 9 Svrcek argued that appellees failed to meet their burden of proving that they possessed the promissory note currently and lawfully.

The Court of Appeals recognized, in Anderson , that “a reputed transferee in possession of an unendorsed mortgage note has the burden to establish its rights under that note—especially in instances where the mortgagor requests an injunction to foreclose enforcement by the possessor based on such a defense.” Anderson, 424 Md. at 245 , 35 A.3d 452 . Pursuant to Md. Rule 14-207(b)(3), .appellees produced a copy of the note as an attachment to their order to docket, but the copy did not show any endorsements. At that point, appellees appeared to be in possession of an unendorsed mortgage note and they were required to prove the note’s prior transfer ⁷²³ history. As the Court of Appeals stated in Anderson , “given the chain-of-possession document quagmire exemplified by this case, fairness dictates that the mortgagee produce the necessary proof, when that matter is put at issue properly.” Id. at 246-45, 35 A.8d 452.

That issue must be analyzed in light of Maryland’s Commercial Law, which the Court of Appeals reviewed in Anderson as follows: The Maryland Code, Commercial Law Article governs a negotiable promissory note that is secured by a deed of trust. Silver Spring Title Co. v. Chadwick, 213 Md. 178, 181 , 131 A.2d 489, 490 (1957); LeBrun v. Prosise, 197 Md. 466, 474-75 , 79 A.2d 543 (1951); Md.Code Ann., Com. Law § 9-203(g) & cmt. 9 (LexisNexis 2002). The deed of trust cannot be transferred like a mortgage; rather, the corresponding note may be transferred, and carries with it the security provided by the deed of trust.

LeBrun, 197 Md. at 474 , 79 A.2d at 548 . Therefore, we analyze the parties’ dispute here in light of the Commercial Law Article. Whether a negotiable instrument, such as a deed of trust note, is transferred or negotiated dictates the enforcement rights of the note transferee. A transfer has two requirements: the transferor (any person that transfers the note, except the issuer) must intend to vest in the transferee the right to enforce the instrument (thieves and accidental transferees are excluded) and must deliver the instrument so the transferee receives actual or constructive possession.

Com. Law § 3—203(b); 6B Lary Lawrence, Anderson on the Uniform Commercial Code § 3-203:5R (3d ed.2003). A transfer vests in the transferee only the rights enjoyed by the transferor, which may include the right to enforce the instrument. Com.

Law. § 3—203(a)—(b). A negotiation, by contrast, occurs when a holder—who is either the named payee of an instrument or the transferee of a negotiated instrument—transfers possession of an instrument, payable to bearer, to another. Com. Law § 3-201(a)-(b) & cmt. 1.

A negotiation of an instrument payable to an identified person, however, requires the holder to ⁷²⁴ transfer possession and indorse the instrument, ie., negotiate the instrument. Id. Importantly, only a holder may negotiate an instrument. Com.

Law § 3-203 cmt. 1. Thus, a recipient of a transferred instrument is a transferee, but a recipient of a negotiated instrument is a holder. With that distinction in mind, Commercial Law § 3-301 explains that a person entitled to enforce a negotiable instrument may be either of three varieties: “(i) the holder of the instrument, (ii) a non-holder in possession of the instrument who has the rights of a holder [ie., a transferee] or (ni) a person not in possession of the instrument who is entitled to enforce pursuant to § 3-309....” Id. at 246-47, 35 A.3d 452 . In the case at hand, Citibank, N.A. as Trustee failed to establish that it was a holder of the Svrcek note, but established, instead, that it was a person not in possession of an instrument who is entitled to enforce it pursuant to § 3-309 of the Commercial Law Article, which provides: (a) A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure, and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amendable to service of process.

(b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person’s right to enforce the instrument. If that proof is made, § 3-308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the ⁷²⁵ instrument. Adequate protection may be provided by any reasonable means.

Md.Code (2002 RepLVoL, 2009 Cum.Supp.), § 3-309 of the Commercial Law Article (“C.L.”). Appellees attached to their order to docket, among other things, a certified true copy of the promissory note, an affidavit of note ownership by which they certified that EMC Mortgage Corporation as attorney in fact for Citibank, N.A. as Trustee was the owner of the note, and a certification pursuant to Md. Rule 14-207 that the note was “a true and accurate copy” of the note that was delivered to them “by the note holder and/or its servicing agent.” At no time did Svrcek ever deny that the copy of the note was, in fact, a copy of the note that he executed at settlement on the property. Nor did Svrcek ever claim that anyone other than Citibank, N.A. as Trustee, through its servicer, EMC Mortgage Corporation, had ever contacted him regarding payments due on the loan. Moreover, appellees’ claim that for three years Svrcek made payments on the note to EMC Mortgage Corporation was not controverted.

Nevertheless, Svrcek reasoned that, because the copy of the note submitted with the order to docket did not show any endorsements, there must not have been any endorsements. That reasoning is flawed. According to the affidavit provided by appellees, the note was lost. As a result, it cannot be said that endorsements are or are not present on the note, merely that no endorsements appear on the copy of the note that was provided in support of the order to docket.

Svrcek was also advised, in both the promissory note and deed of trust, that the note could be transferred. In support of his memorandum in support of his motion to stay the sale and dismiss the foreclosure action, Svrcek attached as an exhibit excerpts from the pooling and servicing agreement which was dated “as of June 1, 2006,” and showed that EMC Mortgage Corporation was the servicer. At the hearing on February 23, 2010, the following colloquy occurred: THE COURT: This pool, as I see it, in looking through the file, owned the note at the very beginning of the case and— ⁷²⁶ [COUNSEL FOR APPELLEES]: And owned it throughout. THE COURT:—and bought the property at the sale—by a sale. [COUNSEL FOR APPELLEES]: Correct, Your Honor.

And I would also point out, the contention seems to be that the defendant was unaware who to make the payments to because of a lack of knowledge as to who the proper party was. Well, there were payments made for three years on the loan prior to the foreclosure sale having occurred. The—so I think—the confusion seems to only arise once the payments fell in arrears. There was no confusion for the three years prior, from the time—the loan was actually originated in '05.1 think it was transferred in '06.

For three years, there was no confusion as to who to make the payments to. That was not a question, it was never raised, so I think the—I don’t think that’s a valid contention, if that’s the gist of the argument as I’m reading it. At no point did Svrcek deny that he made payments to the owner of the note from 2006 until the time of default, nor did he object to the court’s observation that the note was part of the pool beginning in 2006. All of this evidence supports the conclusion that the note was, at some time before June 1, 2006, transferred to Citibank, N.A. as Trustee, which received all the rights to enforce the note that Taylor, Bean & Whitaker had.

Although Citibank, N.A. as Trustee was the owner of the note, the note was, at some point, lost. Thus, Citibank, N.A. as Trustee became a person not in possession of the note, but who was entitled to enforce it pursuant to C.L. § 3-309. The evidence before the circuit court supported the conclusion that Svrcek was “clearly in default on his contractual obligations,” and that “[n]one of the claimed factual or legal bases presented by [Svrcek] provides any basis” for staying the proceedings or setting aside the sale. As a result, we cannot say that the trial judge abused his discretion in denying either Svrcek’s motion to stay the sale and dismiss the foreclosure proceedings or his motion to vacate the sale. ⁷²⁷ E. Assignment of the Deed of Trust We also reject Svrcek’s argument pertaining to the timing of the assignment of the deed of trust.

The note was transferred to the “pool” no later than June 1, 2006, long before the commencement of the foreclosure proceeding and the recording of the assignment. Maryland law makes clear that once the note was transferred, the right to enforce the deed of trust followed. The Court of Appeals, in Le Brun v. Prosise, 197 Md. 466, 474-75 , 79 A.2d 543 (1951), explained the legal effect of an assignment of a deed of trust: This deed of trust secures a negotiable note, whoever may be the holder. The deed of trust need not and properly speaking cannot be assigned like a mortgage, cf. Jones on Mortgages, § 1222; Glenn on Mortgages, § 338, but the note can be transferred freely, and, when transferred, carries with it the security, if any, of the deed of trust, which was true of a mortgage note before the Act of 1892, ch. 392, amended by Acts of 1910, ch. 719, now section 26.

Demuth v. Old Town Bank, 85 Md. 315 , 37 A. 266 [ (1897) ]. “The note and the mortgage are inseparable; the former as essential, the latter as an incident. An assignment of the note carries the mortgage with it, while an assignment of the latter alone is a nullity.” Thus, the assignment of the deed of trust from Taylor, Bean & Whitaker Mortgage Corp. to Citibank, N.A. as Trustee, executed on October 22, 2009 and filed in the circuit court on October 30, 2009, is of no consequence with respect to appel-lees’ right to initiate the foreclosure proceeding. II Svrcek next contends that the appointment of appellees as substitute trustees, which was evidenced by the deed of appointment of substitute trustees filed in the land records on October 8, 2009, was not effective because it was executed by an attorney in fact without a power of attorney recorded in the land records of Queen Anne’s County. In support of his ⁷²⁸ contention, Svrcek directs our attention to R.P. § 4-107(a), which provided then, as it does now: (a) In general.—Every power of attorney executed by any person authorizing an agent or attorney to sell and grant any property shall be executed in the same manner as a deed and recorded; (1) Before the day on which the deed executed pursuant to the power of attorney is recorded; (2) On the same day as the deed executed pursuant to the power of attorney; or (3) Subject to subsection (b) of this section, after the day on which the deed executed pursuant to the power of attorney is recorded.

Svrcek asserts that, because no power of attorney was ever produced by appellees, the deed of appointment of substitute trustees was a nullity and, therefore, appellees did not have the right to initiate the foreclosure proceeding and it should have been dismissed. Our review of the record before us reveals that Svrcek did not raise this particular issue below and, even if he had, he did not do so within the fifteen day period required by Md. Rule 14-211. As a result, this issue is not properly preserved for our review. Md. Rule 8—131(a).

Even if the issue had been preserved for our consideration, we would hold that R.P. § 4-107 is inapplicable in this particular case because the attorney in fact did not act to sell or grant property, but to appoint substitute trustees. The deed of appointment of substitute trustees did not convey property, but merely the right to initiate a foreclosure of the equity of redemption or otherwise act to protect the secured party’s interest. “A deed of trust is a security device. It transfers legal title from a property owner to one or more trustees to be held for the benefit of a beneficiary.” Springhill Lake Investors Ltd. P’ship v. Prince George’s County, 114 Md.App. 420, 428 , 690 A.2d 535 (1997). “The conveyance transfers the estate of the debtor to the trustee, giving the ⁷²⁹ trustee legal title to the property. The debtor retains an ‘equity of redemption’ or the right to reassert complete [] ownership of the land, upon payment of the debt and any other charges rightly assessed under the terms of the lien instrument.” Fagnani v. Fisher, 418 Md. 371, 383 , 15 A.3d 282 (2011)(citing Simard v. White, 383 Md. 257 , 272 n. 12, 859