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IN THE COURT OF APPEALS OF MARYLAND No. 125 September Term, 1997

GEORGE H. BUTLER and MARY E. BUTLER et al.

v.

JOHNNIE R. TILGHMAN

Bell, C.J. Eldridge Rodowsky Chasanow Raker Wilner Cathell, JJ.

Opinion by Cathell, J.

Filed: June 16, 1998

In this case we are presented with two issues relating to a lien entered pursuant to a writ of attachment on original process. The first issue is whether a valid lien was created when the Notice of Lien of Attachment was filed prior to the filing of the return of levy by the sheriff. The second issue is whether a lien entered pursuant to a writ of attachment on original process must be recorded and indexed in order for the lienholder to have priority over a subsequent good faith purchaser. Because we hold that a valid lien is not created when a Notice of Lien is filed prior to the filing of the return by the sheriff, it is unnecessary for us to address the second issue. I. Johnnie R. Tilghman, doing business as Cars Plus, respondent, filed suit against Wayne Davis Payne and Sandra K. Payne (the Paynes) in the District Court of Maryland in Charles County on August 7, 1992. In the complaint, respondent alleged that the Paynes obtained two automobiles from him for a total cost of $18,100. The Paynes tendered two checks to respondent, one for $6,300 and the other for $11,800, which later were returned from respondent's bank due to insufficient funds in the Paynes' account. Respondent sought a judgment against the Paynes for the amount of the dishonored checks and certain bank fees. Also on August 7, 1992, Respondent filed with the District Court a "Request for an Order for the Issuance of a Writ of Attachment Before Judgment" in which he sought a levy on real property owned by the Paynes known as 15107 Billingsley Road, White Plains, Maryland 20695 (the property). The District Court issued the Writ of Attachment Before Judgment on August 26, 1992. On September 25, 1992, prior to the filing of the return and

Proof of Service by the Sheriff, a "Notice of Lien of Attachment Before Judgment" was sent to the Circuit Court for Charles County and stamped as received, but not indexed, on September 28, 1992. The Notice of Lien of Attachment Before Judgment provided: "To the Clerk of the Circuit Court for Charles County . . . : I HEREBY CERTIFY that an Attachment Before Judgment on Real Estate was issued in the above case, on real estate located at 15107 Billingsley Rd., White Plains, Md., 20695 Lots 3 & 4 Foxhall Estates." (Emphasis Added)1 On October 1, 1992, the Sheriff's return was filed in the District Court. The return provided that the subject property was levied on September 28, 1992, by affixing a copy of the writ and schedule to the property and by mailing a copy of the writ, complaint, and attachment before judgment to the Paynes' last known address. Thus, the Notice of Lien of Attachment Before Judgment was filed in the circuit court prior to the existence of any such lien. On October 29, 1992, the Paynes and George H. Butler and Mary E. Butler, petitioners, entered into a contract of sale for 15107 Billingsley Road. An examination of the circuit court judgment index did not reveal a judgment lien on the property. The Paynes executed a deed transferring the property to petitioners on December 18, 1992. This deed was recorded in the land records of Charles County on December 23, 1992.

The Notice of Lien of Attachment Before Judgment form usually reads: "I HEREBY CERTIFY that an Attachment Before Judgment on Real Estate was levied in the above case . . . ." In the instant case, however, the District Court clerk crossed out the word "levied" and replaced it with the word "issued." This presumably occurred because the property had not been levied at the time the notice was filed in that the sheriff had not yet levied, i.e., attached the property or filed the return. -2-

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On January 6, 1993, respondent obtained a default judgment against the Paynes in District Court. On January 21, 1993, the judgment lien was indexed in the Circuit Court for Charles County. We simplify the chronology of events in this case as follows: 8/7/92 Respondent filed a complaint against the Paynes in District Court and sought a writ of attachment before judgment. District Court orders issuance of a writ of attachment before judgment. Respondent files a "Request to File Notice of Lien" in the District Court. Clerk of District Court sends Notice of Lien of Attachment Before Judgment modified to indicate that the attachment was "issued" to the circuit court. Sheriff levies on, i.e., attaches, the property. District Court's Notice of Lien of Attachment being issued is received and date-stamped in the circuit court but is not indexed. Sheriff completes levy by filing return with the clerk of the District Court. Notice of the levy is not forwarded to the circuit court. Petitioners enter into contract for purchase of home with the Paynes. Property deeded to petitioners by the Paynes. Deed recorded among the land records of Charles County. District Court enters judgment by default against the Paynes in favor of respondent. Judgment lien indexed in the circuit court records.

8/26/92

9/25/92

9/25/92

9/28/92 9/28/92

10/1/92

10/29/92

12/18/92 12/23/92 1/6/93

1/21/93

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On September 20, 1996, respondent moved to enforce the writ of execution. After petitioners filed a response, the District Court granted respondent's motion, thereby permitting the sale of the property. Petitioners filed a notice of appeal to the Circuit Court for Charles County. After the issues were briefed and a hearing held, the trial court, affirming the judgment of the District Court, stated: I agree and I think Mr. Fanning agrees with Mr. Levine that the Clerk was wrong in transmitting any paper work anywhere, at least in the direction of the Circuit Court until after the sheriff had made his return. But in any event the writ goes to the sheriff and the record documents the Sheriff having gone out and done what the rule and writ directed him to do, which is to levy on the property and make his return. He did that. I am satisfied the acts of the Sheriff were not analogous. And it was obvious once the return was made for the clerk to see that notice went to Circuit Court. The Clerk had done that precipitously but there c[a]me a point in early October when the notice of the action and the record of the levy, the return, had all been accomplished. And I am satisfied that everybody save the Circuit Court Clerk by that time had done what was expected of them even in the case if the District Court Clerk had been done precipitously. No. 2, the statute that was construed in Frank -vs- Storer is at issue here. That is Section 3-203 of [the Real Property Article] because if Mr. and Mrs. Butler paid value for this property and were without notice and recorded first then that statute says they take peremptory liens regardless of what arrangement and that statute, Frank -vs- Storer was construing and that is why Frank -vs- Storer and its doctrine had relevance here. Because the hang up which we are struggling today did derive from the fact that rule 3-115[(e)] talks about the undertaking, constitute a lien on the property when entered by the Clerk of the Circuit Court.
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The Clerk of the Circuit Court had done something, had stamped in the notice by the time Butler's deed was recorded, but having not indexed it. Which brings me to notice the language in Rule 2-621(b) that talks about money judgments and the lien effective by the entry of a money judgment and it talks about recording and indexing. Rule 3-115 referring to the attachment before judgment in District Court talks about entering. The people who adopted these rules presumably, the committee that recommended them and the Court that adopted them, presumably had an organized scheme in mind that wh[en] they meant identical things they used identical language. Rules of construction which we must go by, whether there is [a] factual basis for that expectation or not, we shouldn't say that kind of thing about the legislature. But this brings us back to Frank -vs- Storer. In point of fact the recordation that had occurred in the factual predicate for the Frank -vs- Storer decision had apparently involved I guess photo copying or whatever of an instrument and its inclusion in the bound volumes, whatever the mechanism was, without index. And the standard case, that is the same here. And the indexing was deemed not essential to the act of recordation. I conclude, therefore, the entering had the effect Judge Gasparovic believed it had and amounted to a recordation analogous to the recordation in Frank -vs- Storer case and within the meaning of Section 3-203 of the Real Property Article, which is to say the recordation such as it was of this attachment [before] judgment had been effective prior to the entry of the Butler's deed. . . . So the judgment of District Court will be affirmed. We granted writ of certiorari to address petitioner's questions, which we have renumbered: [1]. Where a District Court clerk incorrectly certifies that an attachment before judgment on real estate was "issued" rather than "levied", and said clerk forwards the notice of lien to the circuit court before a sheriff's return is filed, is there an attachment and does the circuit court have jurisdiction to enter a lien?
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[2]. Whether a judgment creditor with an indexing problem is entitled to protection according to Real Property Article section 3-203 and Frank v. Storer[, 308 Md. 194, 517 A.2d 1098 (1986).] We hold that the procedures for obtaining a lien pursuant to Maryland Rule 3-115 were not properly followed and shall reverse the judgment of the Circuit Court for Charles County. In doing so, it becomes unnecessary for us to address the second issue. II. Maryland Rule 3-115 provides the procedure to obtain attachment before judgment in District Court. It states in relevant part: (a) Request for writ. At the time of filing a complaint commencing an action or while the action is pending, a plaintiff entitled by statute to attachment before judgment may file a request for an order directing the issuance of a writ of attachment for levy or garnishment of property or credits of the defendant. The request may be made ex parte. The plaintiff shall file with the request an affidavit verifying the facts set forth in the complaint and stating the grounds for entitlement to the writ. The request and affidavit need not be served pursuant to Rule 1-321 at the time of filing. .... (c) Proceedings on request for writ. The court shall review the complaint, any exhibits, and the supporting affidavit. The court may require the plaintiff to supplement or explain any of the matters set forth in the documents or to provide further information regarding the property to be attached. If the court determines that the plaintiff is entitled to the writ of attachment, it shall order issuance of the writ conditioned on the filing of a bond by the plaintiff for the satisfaction of all costs and damages that may be awarded the defendant or a claimant of the property by reason of the attachment. The order shall prescribe the amount and security of the bond. (d) Issuance of writ. Upon entry of the order and the filing of the bond, the clerk shall issue one or more writs of attachment and shall attach to each writ a copy of the supporting affidavit filed with the request. When the writ
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directs a levy on the property of the defendant, the procedure shall be in accordance with Rules 3-641 and 3-642. . . . (e) Notice of Lien of attachment. When real property is attached, upon the filing of the return by the sheriff the clerk shall file a Notice of Lien marked "Attachment Before Judgment on Real Property." The notice shall contain (1) the name of each plaintiff, (2) the name and address of each defendant, (3) the assigned docket reference of the action, and (4) the name of the county in which the action was commenced. . . . When the real property is located outside of Baltimore City, the Notice of Lien shall be filed with the clerk of the circuit court for the county in which the property is located and shall constitute a lien on the property when entered by the clerk of the circuit court. Under the procedures set forth in this rule, a plaintiff entitled by statute to attachment before judgment must first file a request for an order directing the issuance of a writ of attachment along with an affidavit concerning the facts in the complaint. The District Court then reviews the complaint, any exhibits, and the affidavit to determine whether to issue the writ. If the court issues the writ, the writ must be conditioned on the filing of a bond by the plaintiff. The issuance of the writ, however, does not create a lien on the property. See May v. Buckhannon River Lumber Co., 70 Md. 448, 449-50, 17 A. 274, 275 (1889) (quoting Horwitz v. Ellinger, 31 Md. 492, 505 (1869)). Once the District Court enters an order directing the issuance of the writ and the plaintiff files a bond, the District Court clerk then issues one or more writs of attachment. If the writ directs the sheriff to levy on real property, the sheriff shall do so "by entering a description of the property upon a schedule and by posting a copy of the writ and the

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schedule in a prominent place on the property." Md. Rule 3-642(a). "Following a levy, the sheriff shall promptly file a return together with the schedule." Md. Rule 3-642(e). Once the sheriff's return is filed with the clerk of the District Court, "the clerk shall file a Notice of Lien marked `Attachment Before Judgment on Real Property.'" Md. Rule 3115(e). This notice then must be filed with the clerk of the circuit court for the county in which the property is located. With respect to attachment on original process, we previously noted that the procedure is designed to accomplish the dual purpose of compelling the defendant's appearance in court as well as providing the plaintiff with security for the payment of his claim once it is established as being due. Philbin v. Thurn, 103 Md. 342, 351, 63 A. 571, 574 (1906); see Belcher v. Gov't Employees Ins. Co., 282 Md. 718, 720, 387 A.2d 770, 772 (1978). This security is obtained when a levy is made because that act creates an inchoate lien that remains as such until a judgment of condemnation absolute is entered under Rule G55. Northwestern N. Ins. v. Wetherall, 267 Md. 378, 384, 298 A.2d 1, 5 (1972); Union Trust Co. v. Biggs, 153 Md. 50, 57, 137 A. 509, 513 (1927); W. Hodge & R. McLane, The Law of Attachment in Maryland

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