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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1786 SEPTEMBER TERM, 2003

REBECCA GRIFFIN v. LEWIS F. SHAPIRO

Hollander, Kenney, Wenner, William W. (Ret'd, specially assigned), JJ.

Opinion by Kenney, J.

Filed: September 3, 2004

Rebecca Griffin appeals from an order of the Circuit Court for Baltimore County denying her request to set aside a sheriff's sale. On appeal, she asks two questions, which we have reworded: 1. Did the circuit court err by not setting aside the sheriff's sale because the sale price was grossly inadequate due, in part, to the listing of an incorrect zip code in the advertisement for the sale? Did the circuit court err by determining that appellant was not entitled to credit for payments made under an "Interim Forbearance Agreement?"

2.

Answering "no," we shall affirm the judgments of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND In April 1997, Lewis Shapiro, appellee, obtained a judgment by confession against appellant, in the Circuit Court for Baltimore City.1 The claim underlying the judgment arose "from a

defaulted deed of trust secured by assets, including real estate, a liquor license, and other business assets located at 1804 Greenmount Avenue, Baltimore, Maryland, and owned by Royson, Inc." The judgment was in the amount of $74,108.61 plus

interest. On August 20, 1997, appellee filed a "Notice of Entry of Confessed Judgment" in the Circuit Court for Baltimore County. Appellant moved to vacate the judgment, arguing:

The judgment also was entered against Royreal Rhines, John Rhines, and John Griffin, none of whom are parties to this appeal.

1

-21. 2. That [appellant] is a resident of Baltimore City, Maryland. That [appellant] was never served a copy of the complaint for Judgment by Confession. That [appellant] never signed or authorized the signing of [a] promissory note. That [appellant] never entered into any agreement with [appellee].

3.

4.

The circuit court denied appellant's motion and the judgment was entered in Baltimore County. On February 2, 1998, appellee filed a "Request for Writ of Execution," directing the Baltimore County Sheriff's Office ("Sheriff") to levy upon real property, consisting of a Cape Cod style home with a detached garage, owned by appellant and her husband, John Griffin, located at 7800 Liberty Road, Baltimore, Maryland 21207. On February 3, 1998, the Sheriff levied and Seven months

attached the property, but no sale was conducted.

later, appellant filed a suggestion of bankruptcy in the circuit court and no further action was taken on the confessed judgment at that time. In November 1999, the parties executed an "Interim Forbearance Agreement" (the "Agreement"), which provided, in part: RECITALS

-3WHEREAS, [appellee] obtained a judgment against [appellant] and others in the Circuit Court for Baltimore City...; and WHEREAS, on the 25th day of March, 1999 [appellant] filed her Amended Voluntary Petition for relief under Chapter 13 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Maryland...; and WHEREAS, the claim underlying the judgment arises from a defaulted deed of trust secured by the assets, including real estate, a liquor license, and other business assets located at 1804 Greenmount Avenue, Baltimore, MD, and owned by Royson, Inc.; and WHEREAS, [appellant's] spouse, John Griffin, is a fifty percent shareholder and officer of Royson, Inc.; and WHEREAS, [appellant] will shortly file a Third Amended Chapter 13 Plan (the "Plan") in her bankruptcy proceeding which Plan includes certain terms and conditions regarding the interim forbearance of [appellee] from prosecuting his claim and, moreover, the ultimate payment of the same. * * * Section 1. Forbearance

1.1 [Appellee] hereby agrees to forebear from prosecuting or exercising any of the federal, state, or contract rights that he would otherwise have against either (i) [appellant], (ii) any real estate in which [appellant] has interest, and/or (iii) the assets of Royson for so long as [appellant] remains in compliance with the terms and conditions of the Plan. 1.2 [Appellant] has agreed that she will make adequate protection payments to [appellee] outside of the Plan of $500.00 per month with said payments to be made on the

-4fifteenth (15th) day of each month beginning November 15, 1999. . . . Moreover, following confirmation, [appellant's] spouse will use his best efforts to market the real estate known as the Royson Real Estate (1804 Greenmount Avenue) for the purpose of selling the same to satisfy the debt due [appellee]. Unless the Royson Real Estate is sooner sold, the $500.00 payments shall continue for the entire terms of the Plan. * * * 1.4 For so long as [appellant] honors her obligations to [appellee] under the Plan, [appellee] agrees to continue to forebear as set forth in paragraph 1.1. However, in the event [appellant] is in default of those obligations in paragraph 1.1, then, in event, [appellee] may enforce his rights against Royson's assets and may seek appropriate relief in the bankruptcy court with regards to any other property in which [appellant] has an interest. The United States Bankruptcy Court for the District of Maryland approved the Agreement on March 30, 2000. During the

pendency of the bankruptcy proceedings, and pursuant to the Agreement, appellant paid $27,196.42 to appellee. On June 19,

2001, the bankruptcy court entered an order "discharging [appellant] after completion of payments under [the] plan." In May 2003, appellee filed another "Request for Writ of Execution" in the circuit court, directing the Sheriff to levy upon the Liberty Road property owned by appellant and her husband. The Sheriff levied and attached the property on May 21, 2003. An advertisement was placed in The Jeffersonian, a weekly

newspaper, and ran once a week for three successive weeks prior

-5to the sale, which occurred on July 9, 2003. stated: Office of the Sheriff of Baltimore County R. Jay Fisher 401 Bosley Avenue Towson, Maryland 21204 410-887-3151 SCHEDULE Of the property executed and levied upon by R. Jay Fisher, Sheriff of Baltimore County, this 21st day of May, 2003 by virtue of a writ of Execution issued out of the Circuit Court for Baltimore County, and directed to the Sheriff thereof against the Goods and Chattels, Lands and Tenements of John & Rebecca Griffin at the suit of Lewis Shapiro and appraised by us, the subscribers, who were first duly summoned and sworn for the purpose TO BE SOLD: Property known as 7800 Liberty Rd., 21207 with the following improvements: One stone cape cod house with a detached garage. TERMS OF SALE: $10,000.00 Deposit, cash or cashiers check at the time of the sale, balance to be paid within 45 days of court ratification. Judgment creditor is permitted to buy in at the sale using their judgement. Additional terms, if any, will be announced at the time of the sale. PLACE OF SALE: 7800 Liberty Rd., 21207 DATE: July 9, 2003 10AM AUCTIONEER: Baltimore Auction Co. - IRV SASS 410-526-4626 As noted, the advertisement listed the zip code as 21207. fact, it is now 21244. In The advertisement

When appellant and her husband purchased

the property in 1992, the zip code was 21207, as evidenced by the "Affidavit of Residential Use" in the deed. Some time after the At the time of

sale, however, the zip code was changed to 21244.

-6the sale, appellant was occupying the home and would not allow prospective purchasers to inspect the interior. There were

approximately four bidders at the sale.

Stewart D. Sachs Real

Estate, LLC purchased the property for the price of $70,000. Appellant filed "Exceptions to Sale" in the circuit court, requesting that the sale be set aside for the following reasons. First, she argued that the sales price was "grossly inadequate." In support of that argument, she asserted that a recent appraisal determined the fair market value of the property to be $185,000 and that the tax assessment was $160,000. Second, she contended that

the advertisement for the sale was "deficient" because it "failed to conspicuously denote that the Sheriff was conducting a sale." Third, the wrong zip code in the advertisement resulted in readers of the advertisement believing that the property was "in an area of lesser economic value." entitled to credit for Fourth, appellant argued that she was the payments she had made under the

Agreement. Appellee responded that the sale was "an arm's length

transaction," and the price was fair and adequate considering "the unpaid balance of the first mortgage and the unknown condition of the inside of the property."2 He also contended that the incorrect

zip code did not impact the sale because Liberty Road is "clearly

2

The property was encumbered by a first mortgage in the amount of approximately

$28,000.

-7known to be in Baltimore County" and is a "major artery off the Baltimore Beltway . . . and known to anyone in the area or easily ascertained by anyone who lives outside the area." Finally, he

argued that appellant was not entitled to a credit because the payments under the Agreement were "merely . . . to assure

[appellee's] position during the bankruptcy proceeding and to assure [that he] had some protection as to its collateral while the bankruptcy progressed." At the hearing on the exceptions, the central dispute was the alleged inadequacy of the sale price and whether the zip code that was incorrectly listed in the advertisement contributed to the unfair sale. According to Irvin Sass, an auctioneer who conducted

the sale, the 21207 zip code included parts of both Baltimore City and Baltimore County.3 He testified that before the sale, he had

received several telephone calls about appellant's property, but the "main reason why those bidders did not come" was because they "did not want to come to a sale where it [was] court approved several months later, they want[ed] a normal contemporary

settlement. . . ."

Sass averred that "equivalent" properties In

located in the 21207 and 21244 zip codes were "the same value."

his opinion, the incorrect zip code did not impact the sale because the Liberty Road address, which was located directly off the Baltimore Beltway, was "very obvious" and "[stuck] out like a sore

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Appellee called Sass as a witness. Appellant did not call any witnesses at the hearing.

-8thumb." He acknowledged that within the 21207 zip code, however,

properties that were located in the 6800 or 6900 block of Liberty Road and closer to Baltimore city were less expensive than those in the 7900 block of Liberty Road. The circuit court "overruled" the exceptions and "approved" the sale, providing the following findings in a written order: 1. Notices Notices of the sale ("Notices") for three successive weeks did not contain the phrase "Sheriff's Sale" or "Public Auction" in large type as did other sale notices published at the same time. . . . In addition, the Sheriff's address and telephone number were listed. The Notices appeared on pages of the The Jeffersonian newspaper with other notices of sale by the Sheriff, estate and public auctions, and trustee sales. Testimony from Captain Huson of the Sheriff's Office explained that the newspaper adds the phrase to some of the Notices; but, it doesn't always include the phrase. The phrase is not part of the notice submitted by the Sheriff to the newspaper for publication. No rule or case requires the use of the phrase. Having reviewed the Notices themselves and the Notices in situ with other advertised sales, the Notices do not appear to be inadequate or insufficient in any way. * * * The two zip codes, 21207 and 21244, are adjacent to one another. The Court was concerned about the use of the wrong zip codes since in some areas in Maryland, property owners go to great lengths to have a desirable zip code attached to their property. The undisputed testimony was that in this situation, one zip code was not more

-9"valuable" to prospective purchasers than the other. Having carefully considered the arguments of the parties, the Court is persuaded that use of the wrong zip code in this case was not unfair to [appellant] because the address was otherwise correct and the address is in a prominent location. Liberty Road is a busy commercial and residential road; there is a Liberty Road exit off of I-695, the Baltimore Beltway. Prospective purchasers of properties in the area would be familiar with the various blocks of Liberty Road and not likely to be deterred by the wrong zip code. * * * 2. Sale Price

[Appellant's] property was valued for tax assessment in the amount of $161,000. [Appellant] obtained an appraisal showing fair market value of $185,000. [Appellant] did not permit prospective purchasers access to the interior of her house and garage. * * * The property in the instant case has an unpaid mortgage balance of $28,000. The difference between the fair market value of $185,000 less the mortgage is $157,000. The sale price of $70,000 does not shock the conscience of this Court under the circumstances, i.e., no access to the interior, [appellant] still in possession of property, delay in obtaining title due to litigation. The sale price obtained from an unrelated purchaser was slightly more than half of the value of the property. . . . 3. Forbearance Payments * * * [Appellant] was not given credit for $27,196.42 in payments made pursuant to the

-10[Agreement] reached by the parties during her Chapter 13 bankruptcy. The [Agreement], dated November 11, 1999, between [the parties] required that [appellant] make "adequate protection payments" of $500.00 per month. The parties agree that the amount in issue is $27,196.42. [Appellant] made the payments throughout her Chapter 13 bankruptcy. On June 19, 2001, an Order was entered discharging [appellant] after Completion of Payment under her Plan and a Final Decree was issued closing the case. According to [appellant], her "obligation under the Agreement was concluded." Nevertheless, [appellant] claims that [appellee] was still obligated to send her notice of default under the Agreement. The argument frankly makes no sense. [Appellee] agreed to forbear [from] taking action against the property so long as [appellant] made her payments. [Appellee] did so forbear. The Agreement was effective only during the bankruptcy. With the conclusion of the bankruptcy, the obligations to pay and to forbear were terminated. [Appellant] seeks to have the payments credited to the unpaid judgment held by [appellee] against her. Nothing in the Agreement provides that the payments would be so applied. [Appellant] was represented by counsel; and, the Agreement was the product of intense negotiations by the parties. [Appellee] sought relief from the stay in bankruptcy to sell the property. No motivation for [appellee] to have accepted payments under the Agreement and allow credit against his judgment was proffered by [appellant] rather than proceed with sale of the property. Given the express language of the Agreement, which fails to provide for such credit, and the lengthy delay [appellee] has experienced in collecting this 1997 judgment, the Court finds that [appellant] has failed to carry her burden of proof on this issue.

-11This timely appeal followed. DISCUSSION I. Adequacy of the Sale

Sheriff's sales are governed by Md. Code (1974, 2002 Repl. Vol.),

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