*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other

document filed in this Court or any other Maryland Court as either precedent within the rule of

stare decisis or as persuasive authority. Md. Rule 1-104.

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 0028

v.

Opinion by Zarnoch, J.

Filed: February 29, 2016

Appellants Spurgeon and Tia Montgomery in the Circuit Court for Charles County, on

their residence located at 8856 Marble Arch Court in White Plains, Charles County.

After Wells Fargo foreclosed on the property in May 2014, the circuit court awarded

possession to the new owner in February 2015. The Montgomerys appealed from the

judgment awarding possession and now present one question for our review, which we

have rephrased as follows:

Did the circuit court err failing to reopen the judgment of foreclosure due to

fraud, and in awarding possession to Wells Fargo because Wells Fargo did

from Prospect Mortgage, LLC on October 9, 2009. The loan was evidenced by a note and

secured by a deed of trust recorded against the Montgomerys’ real property in the White

Planes, with Prospect Mortgage listed as the trustee. The deed of trust designated MERS

The Montgomerys have proceeded pro se throughout the foreclosure litigation,

including in this appeal. Because they are proceeding pro se, we will liberally construe

the Montgomerys’ arguments. See Simms v. State, 409 Md. 722, 732 (2009) (adopting

federal practice to construe liberally court filings that are prepared by pro se prisoners).

This does not, however, excuse the Montgomerys from complying with Maryland rules

2012, MERS, in its capacity as nominee for Prospect Mortgage, assigned the deed of trust

to Wells Fargo Bank, NA, and recorded it in the Charles County land records the

following day. Additionally, Prospect Mortgage indorsed the note to Wells Fargo Bank

at some point before May 14, 2013.

On September 2, 2012, the Montgomerys defaulted on the note. The servicer sent

the Montgomerys a notice of intent to foreclose (“NOI”) on January 18, 2013, which

listed the secured party as Wells Fargo Bank and apprised the Montgomerys of the

procedure and timeline for foreclosure in Maryland. The NOI also included a list of non-

profit organizations in the HOPE Housing Counselors Network that assist homeowners

who are dealing with a potential foreclosure and who could help the Montgomerys

The HOPE Housing Counselors Network is part of the Home Owners Preserving

Equity (“HOPE”) Initiative, supported by the Maryland Department of Housing and

Community Development (“DHCD”). “DHCD supports a statewide network of 31

nonprofit agencies that provide foreclosure prevention assistance. DHCD provides

financial support and training to these agencies. These counselors are the critical link in

assisting individuals facing foreclosures, acting as a resource to negotiate reasonable

terms with mortgage servicers, and advising citizens on the best actions to take to save

their homes.” See Counselors, Maryland HOPE Initiative, DHCD,

http://mdhope.dhcd.maryland.gov/Counseling/Pages/default.aspx.

complied with the requirements of Maryland Code (1974, 2010 Repl. Vol., 2012 Supp.),

Real Property Article (“R.P.”) § 7-105.1, which required Trustees to verify the accuracy

of the contents of the order to docket, and affirm that loss mitigation information was

included with the order to docket. The Montgomerys were served by posting to the

foreclosure property on July 1, 2013, which included, among other things, a copy of a

notice of foreclosure action, a form to request foreclosure mediation, a preliminary loss

mitigation affidavit, and a copy of the order to docket along with all other papers filed

with it. The above documents were also sent to the Montgomerys by first class and

certified mail.

Wells Fargo filed a final loss mitigation affidavit on February 28, 2014, affirming

and did not receive requests from Wells Fargo to provide documentation for a loss

mitigation program.

May 6, 2014, averring that Trustees mailed all applicable notices and contending that the

Montgomerys’ motion was untimely, did not demonstrate good cause for late filing, and

did not comply with Rule 14-211, which required that the Montgomerys “state with

particularity the factual and legal basis of each defense that the moving party has to the

validity of the lien or the lien instrument or to the right of the plaintiff to foreclose in the

pending action.” Md. Rule 14-211(a)(3)(B).

The court did not immediately act on the motion for a stay, and the foreclosure

sale proceeded on May 6, 2014, with Wells Fargo purchasing the property for $274,120.

The Montgomerys initially filed their request for mediation on May 5; however,

they did not pay the $50 filing fee at that time. Later, on May 16, they returned to the

court to pay the fee, and it was on this date that their request for mediation was officially

filed. Pursuant to R.P. § 7-105.1(j)(1)(ii)(2), the Montgomerys were required to file their

request for mediation no later than March 24, 25 days after the mailing of the final loss

mitigation affidavit on February 26, 2014.

motion for reconsideration and ratified the sale on June 24, 2014.

After giving the Montgomerys notice to vacate the premises on July 11, Wells

Fargo moved for judgment awarding possession of the property on November 9, 2014.

On February 4, 2015, the Montgomerys filed a motion for extension of time. On

February 19, 2015, the court issued an order granting judgment for possession of the

property to Wells Fargo. The Montgomerys noted their appeal on March 11, 2015.

Prior to the foreclosure sale, a mortgagor may challenge the validity of the lien,

the lien instrument, the right of the plaintiff to foreclose because, for example, the

trustees failed to comply with Maryland foreclosure law or because the lender does not,

omitted).

proof in establishing fraud, mistake, or irregularity is clear and convincing

extrinsic fraud, not intrinsic fraud.

Jones, 178 Md. App. at 72 (Internal citations omitted).

This Court explained the distinction between intrinsic fraud and extrinsic fraud in

Billingsley v. Lawson:

“intrinsic” to the trial of the case itself. Underlying this long settled rule is

court a matter for investigation and determination, and once the decision

means of reviewing it, the public policy of this State demands that there be

an end to that litigation ...[.] This policy favoring finality and

conclusiveness can be outweighed only by a showing “that the jurisdiction

of the court has been imposed upon, or that the prevailing party, by some

controversy.”

43 Md. App. 713, 719 (1979) (quoting Schwartz v. Merchs. Mortgage Co., 272 Md. 305,

308-09 (1974)).

Fraud is extrinsic when “it actually prevents an adversarial trial but is intrinsic

when it is employed during the course of the hearing which provides the forum for the

truth to appear, albeit, the truth was distorted by the complained of fraud.” Manigan v.

Burson, 160 Md. App. 114, 121 (2004) (quoting Billingsley, 43 Md. App. at 719).

Similarly, the Court of Appeals characterized extrinsic fraud as:

ignorance by the acts of the plaintiff; or where an attorney fraudulently or

where the attorney regularly employed corruptly sells out his client's

never been a real contest in the trial or hearing of the case, are reasons for

judgment or decree, and open the case for a new and a fair hearing.

Schwartz, 272 Md. at 309 (quoting United States v. Throckmorton, 98 U.S. 61, 65-66

(1878)).

The Montgomerys make general allegations that Prospect Mortgage did not assign

the deed of trust to Wells Fargo and that Wells Fargo did not actually possess the note.

For these reasons, they contend, Wells Fargo should not have been able to initiate the

foreclosure action. Although the Montgomerys do not explicitly describe their argument

Although the Montgomerys allude to other claims, such as violations of the Fair

Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., they do not provide factual or

legal arguments to support their allegations. Further, these claims were not raised in the

Here and before the circuit court, the Montgomerys have presented no evidence of

Wells Fargo’s knowledge or fraudulent intent to initiate the foreclosure; the allegation

that Wells Fargo knew that it did not possess the note when Trustees docketed the

foreclosure is not supported by evidence. The Montgomerys also allege that even if

Wells Fargo was the holder of the note, the appointment of the substitute trustees was

invalid because it was not executed by Wells Fargo. However, this charge is belied by

words on the second page of the appointment document, which states “HOLDER: Wells

Fargo Bank, N.A.” and is signed by Tomeka Keyes, Vice President of Loan

Documentation at Wells Fargo. Moreover, with the order to docket foreclosure, Trustees

filed a copy of the deed of trust and mortgage note endorsed to Wells Fargo, and they

to enforce through foreclosure). The Montgomerys also presented no documentation—