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Lewis v. Jordan Investment Inc.

February 25, 1999

PAUL LEWIS, ET AL., APPELLANTS,
v.
JORDAN INVESTMENT, INC., APPELLEE. AND BROOKS AND LEWIS, APPELLANTS,
v.
GMAC MORTGAGE CORPORATION, ET AL., APPELLEES.



Before Farrell and Reid, Associate Judges, and Gallagher, Senior Judge.

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeals from the Superior Court of the District of Columbia

(Hon. Russell F. Canan, Trial Judge and Hon. Linda Turner Hamilton, Trial Judge)

Argued September 8, 199

Gallagher, Senior Judge: This case comes before this court as a consolidated appeal after extensive litigation over the foreclosure of appellants' home. Appellants Irma Brooks and Paul Lewis contend that a grant of summary judgment entered against them in Brooks v. GMAC, 96-CA-1222, was inappropriate where: (1) internal inconsistencies within their mortgagee's records created a triable issue of fact as to their currency on monthly mortgage payments; (2) their appointed trustees had the burden of proving compliance with their fiduciary duties; and (3) appellee Jordan Investment, Inc. ("Jordan") had constructive notice of appellants' claims when purchasing their property. Appellants also contend that the dismissal of their Plea of Title entered in Jordan Investment, Inc. v. Lewis, 95-CA-9635, on grounds of collateral estoppel and res judicata, must be reversed. Agreeing with appellants on all but the breach of fiduciary duty claim, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I.

Appellant Irma Brooks purchased property located at 1320 Monroe Street, N.W. (the "property"), in 1977 and incurred a $48,450 mortgage from Colonial Mortgage Service Company. In 1991, Brooks fell behind on her monthly payments and filed for bankruptcy to prevent foreclosure on her home. In January of 1994, GMAC Mortgage Co. ("GMAC"), successors in interest to the mortgage, reached an agreement with Brooks whereby she was to make monthly mortgage payments, as well as pay attorneys' fees and costs, directly to GMAC. On January 18, 1995, GMAC filed an Affidavit of Default with the bankruptcy court asserting that Brooks had again fallen behind in payments. A notice of foreclosure was issued on March 13, 1995, and on April 13, 1995, the property was sold for $50,500. On September 11, 1995, appellee Jordan Investment purchased the property for $65,000 at a private sale. After the sale of appellants' property, *fn1 the following two actions were brought in Superior Court.

Jordan Investment, Inc. v. Lewis, 95-CA-9635

On October 19, 1995, Jordan Investment filed a Complaint for Possession of Real Estate against appellants. Appellants countered with a Plea of Title, challenging the foreclosure sale and alleging (1) as of January 18, 1995, their mortgage payments were current, and (2) the so-called right to cure amount on the notice of foreclosure was inaccurate. In support thereof, appellants provided expert affidavits and produced several canceled checks and money orders demonstrating partial payment to GMAC. *fn2 Jordan Investment filed a Motion to Dismiss appellants' Plea of Title asserting it was a good faith purchaser of the property, as well as asserting collateral estoppel and res judicata stemming from a November 12, 1996 Order entered in Brooks v. GMAC, infra. Jordan's motion was granted on December 20, 1996, and judgment was entered against appellants.

Brooks v. GMAC, 96-CA-1222

On February 15, 1996, while Jordan's case against appellants was still pending in Superior Court, appellants filed their own Complaint against GMAC in Superior Court seeking: (1) to set aside the foreclosure of their home; (2) monetary damages for alleged breach of fiduciary duty by their trustees; and (3) to quiet title. The first and third issues were based on the same allegations as those raised by their Plea of Title defense in Jordan Investment, Inc. v. Lewis, supra. The second issue, however, presented an additional claim that appellees Alvin E. Friedman, Esquire and Mark H. Friedman, Esquire breached their fiduciary duty owed to appellants as the appointed substitute trustees for the foreclosure. *fn3 Specifically, appellants allege that appellees Alvin and Mark Friedman allowed the sale of their home at a "shockingly low price." They bolster their argument with the fact that appellees had conflicting interests as they were also counsel for GMAC at the time. The trial court granted GMAC's Motion for Summary Judgment on November 12, 1996, concluding: (1) appellants were unable to set forth specific evidence showing their currency on monthly mortgage payments; (2) appellants failed to establish breach of fiduciary duty; and (3) appellee Jordan was a purchaser in good faith.

On January 31, 1997, after motions to reconsider the grant of dismissal in Jordan Investment, Inc. v. Lewis and the grant of summary judgment in Brooks v. GMAC were denied by the respective trial courts, appellants filed this appeal. Both cases have been consolidated on appeal and present the following three issues for our review: *fn4

(1) whether a triable issue of fact existed as to appellants' currency on their monthly mortgage payments;

(2) whether a triable issue of fact existed as to appellees Alvin and Mark Friedman's alleged ...


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