Evicted owner to air appeal

Md. court gets case that could change foreclosure rules

December 03, 2007|By Larry Carson | Larry Carson,Sun reporter

Kwaku Atta Poku, the Columbia cab owner who lost his family's townhouse to foreclosure after a refinancing, despite having made every mortgage payment, is to get another chance to present his case today in Maryland's highest court.

In arguments that could change how lower courts handle foreclosure cases, attorneys for the immigrant from Ghana are fighting to overturn rulings in favor of Washington Mutual Inc., the national mortgage company that took and resold his Howard County house in 2005.

Maryland law does not require a mortgage company to prove that a homeowner has been notified of a foreclosure and allows the taking of a house in a few weeks.

"I just don't know how this whole thing is going to turn out, and my whole life is tied up in it," Atta Poku said last week as he talked about plans to attend today's Maryland Court of Appeals hearing in Annapolis.

He is worried that his distant relatives and friends still think he did something wrong, even though Shane Winn, a spokesman for Washington Mutual, has said the company doesn't blame him for the foreclosure. Winn said his firm never received payment for the first mortgage, and Atta Poku was unable to prove it was paid off when he refinanced, partly because crucial financial documents were lost by the financial institutions involved in the transaction.

"I hope this [court hearing] will shed some light about the truth of this," Atta Poku said.

Atta Poku's lawyers want the high court to decide whether the Court of Special Appeals was right to dismiss his appeal because he couldn't afford to file a bond, rather than consider the substance of his case. They are also seeking monetary damages in a separate action.

Despite reams of legal arguments filed weeks before the hearing, Scott C. Borison, the Frederick lawyer who will speak for Atta Poku, said oral arguments can be important.

"My role is to show why at this point, even if all the technicalities were right, [foreclosure] is wrong," Borison said.

"We have a person here who was living the American dream, bought this house and did everything he was supposed to, and he loses his house," Borison said.

Phillip Robinson, executive director of Civil Justice Inc., a public-interest law firm, said there is more at stake than one man and his family.

"With Atta Poku's case, they'll [Court of Appeals] have an opportunity to reshape the Maryland foreclosure process."

Robinson said more people are losing their homes to mortgage companies and banks, and the court can decide if Maryland's foreclosure process "adequately meets various constitutional standards." The decision could also have implications for reforms Gov. Martin O'Malley and the General Assembly plan to consider during the 90-day legislative session that starts in January.

Winn declined to comment on the hearing, pointing to company policy in cases where litigation is involved.

Attorneys for Washington Mutual filed motions to dismiss the Court of Appeals case because, among other things, they contend that a three-year statute of limitations on negligence claims expired June 4.

In written filings, Atta Poku's lawyers cited the settlement sheet for the refinancing to argue that the foreclosure was illegal because the mortgage was paid in full. They wrote that Atta Poku took no cash out of the refinancing, and that his sole purpose was to reduce his interest rate and pay off the original mortgage.

Atta Poku's legal troubles began when he refinanced his Columbia townhouse in 2001. After several years and more refinancings, Washington Mutual, which held his mortgage and refinanced it, said the first mortgage had never been paid off, and moved to foreclose. Atta Poku contended that his original mortgage was paid, but he could not prove it.

The naturalized American citizen, his wife and their three young children were evicted in August 2006 after several unsuccessful court appeals in Howard County. The Court of Special Appeals upheld the foreclosure and eviction May 8. The Court of Appeals announced in late August that it would hear the case.

After a year's uncertainty and severe financial losses, the family is now living in another Columbia townhouse rented for them by Congregations Concerned for the Homeless, a local group. Neil Carey, a customer of Atta Poku's AAAA Star taxi business, created a fund for donations to the family administered by Grassroots Crisis Intervention Center, which operates Howard County's private homeless shelter.

Atta Poku said he is trying to rebuild his taxi business while caring for his family, which grew by one on Nov. 23, when a baby boy named Kofi was born to him and his wife, Beatrice. He couldn't work for three days, he said, because he was caring for his other three children.

larry.carson@baltsun.com

Find a link to the audio stream of the hearing before the court and previous coverage at baltimoresun.com/foreclosure

Key points of appeal

In filings with the Maryland Court of Appeals, lawyers for Kwaku Atta Poku are arguing that:

A lender should not be allowed to foreclose on a home when the lender had exclusive possession of the funds to pay off the mortgage.

A homeowner should not be denied the right to appeal a foreclosure when the homeowner has made every effort to obtain a stay only to have those requests summarily denied.

A homeowner's appeal of a circuit court's decision upholding the foreclosure is not moot after the home is sold.

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