author: Woodward, C.J.

text:
    161 A.3d 1
    June Diane DUFFY, as Personal Representative of the Estate of James F. Piper v. CBS CORPORATION June Diane Duffy, as Personal Representative of the Estate of James F. Piper v. CBS Corporation
    No. 453,
    No. 40,
    Sept. Term, 2015
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    May 31, 2017

      Argued by: Daniel A. Brown & Ian G. Thomas (Brown & Gould, LLP, on the brief), Bethesda, MD and (Matthew E. Kiely, Matthew E. Kiely, LLC, on the brief), Baltimore, MD, for Appellant.
    Argued by: Philip A. Kulinski (Clare M. Maisano, Evert Weathersby Houff, on the brief), Baltimore, MD, for Appellee.
    Panel: Woodward, C.J., Kehoe, Leahy, JJ.
   Woodward, C.J.

In a complex, multi-party asbestos case brought by James F. Piper, appellant, in the Circuit Court for Baltimore City, CBS Corporation (“CBS”), appellee, filed a motion for summary judgment, contending that the statute of repose barred Piper’s cause of action against it. See Md. Code (1974, 2013 Repl. Vol.), § 5-108 of the Courts and Judicial Proceedings Article (“CJP”). Following a hearing, the court granted CBS’s motion. Piper noted this appeal, presenting three issues, for our review, which we have consolidated into the following question:

Did the circuit court err in granting CBS’s motion for summary judgment?

For the reasons stated below, we answer this question in the negative and affirm the judgment of the circuit court.

BACKGROUND

CBS is a Delaware corporation that is the successor by merger to a Pennsylvania corporation bearing the same name, which was formerly known as Westinghouse Electric Corporation (“Westinghouse”). In early 1970, Westinghouse entered into a contract with the Potomac Electric Power Company (“Pepeo”) to sell a turbine generator for Pepco’s Morgantown Generating Station (“Morgantown”) in Woodzell, Maryland. Pepeo signed a separate contract with Westinghouse for the installation of the turbine generator at the site. The specifications in that installation contract called for the use of insulation containing asbestos.

Piper worked as a steamfitter at Morgantown. Although he did not work directly on the installation of the turbine generator, he worked in the vicinity of the workers installing the turbine generator’s insulation. The last day workers installed such insulation was June 28, 1970, and the turbine generator was operational by July of 1970.

On December 26, 2013, Piper was diagnosed with mesotheli-oma. According to Piper, his mesothelioma was caused by inhalation of asbestos fibers during his career as a steamfitter, which included the time that he worked at Morgantown. On March 26, 2014, Piper filed a complaint in the circuit court for damages caused by his exposure to asbestos. On January 9, 2015, CBS filed a motion for summary judgment, alleging that Piper’s cause of action against it was barred by the statute of repose. Following a hearing, the court entered an order granting CBS’s motion on March 9, 2015. Piper thereafter noted this appeal.

PRELIMINARY MATTER

At the outset of this case, CBS contends that we should dismiss Piper’s appeal because he appealed from a non-appealable order, and thus we lack jurisdiction. We deny CBS’s motion and determine that we do have jurisdiction to hear this case.

The Court of Appeals has explained:

A fundamental principle of the statute that defines the jurisdiction of the appellate courts is that, as a general rule, a party may appeal only from “a final judgment entered in a civil or criminal case by a circuit court.” CJ § 12-301 [.]
[A] ruling must ordinarily have the following three attributes to be a final judgment: (1) it must be intended by the court as an unqualified, final disposition of the matter in controversy[;] (2) unless the court acts pursuant to Maryland Rule 2-602(b) to direct the entry of a final judgment as to less than all of the claims or all of the parties, it must adjudicate or complete the adjudication of all claims against all parties; [and] (8) it must be set forth and recorded in accordance with Rule 2-601.

Metro Maint. Sys. S., Inc. v. Milburn, 442 Md. 289, 297-98, 112 A.3d 429 (2015). There are three exceptions to the final judgment requirement: “(1) appeals from interlocutory orders specifically allowed by statute; (2) immediate appeals permitted under Maryland Rule 2-602; and (3) appeals from interlocutory rulings allowed under the common law collateral order doctrine.” Md. Bd. of Physicians v. Geier, 451 Md. 526, 546, 154 A.3d 1211 (2017).

The order granting CBS’s motion for summary judgment was not final when it was entered, because it did not resolve all claims as to all parties in the instant case. Neither did the order fall into one of the three exceptions listed above. Accordingly, at the time Piper noted his appeal, it was premature.

After noting the appeal, however, Piper dismissed from the case the sole remaining defendant, Walter E. Campbell Co., Inc., and asked the circuit court for an order entering a final judgment. On February 8, 2016, the court granted the dismissal and issued the requested order.

Maryland Rule 8-602(e) states, in relevant part:

(1) If the appellate court determines that the order from which the appeal is taken was not a final judgment when the notice of appeal was filed but that the lower court had discretion to direct the entry of a final judgment pursuant to Rule 2—602(b), the appellate court, as it finds appropriate, may ... (D) if a final judgment was entered by the lower court after the notice of appeal was filed, treat the notice of appeal as if filed on the same day as, but after, the entry of the judgment.

(Emphasis added). Because a final judgment was entered by the trial court after Piper noted his appeal, Rule 8-602(e)(1)(D) authorizes us to treat his notice of appeal as if it was filed on the same day as the final judgment, but after the entry thereof. See McCormick v. Medtronic, Inc., 219 Md.App. 485, 506 n. 5, 101 A.3d 467 (2014) (finding “[ajlternatively, because the circuit court’s order effectively became final when the [appellants] dismissed their claims against Dr. Rosner with prejudice, we may treat their ‘notice of appeal as if filed on the same day as, but after, the entry of the judgment.’ Md. Rule 8—602(e)(1)(D).”).

Accordingly, we have jurisdiction to address the merits of the instant appeal.

STANDARD OF REVIEW

Maryland appellate courts have explained:

“On review of an order granting summary judgment, our analysis ‘begins with the determination [of] whether a genuine dispute of material fact exists; only in the absence of such a dispute will we review questions of law.’ D’Aoust v. Diamond, 424 Md. 549, 574, 36 A.3d 941, 955 (2012) (quoting Appiah v. Hall, 416 Md. 533, 546, 7 A.3d 536, 544 (2010)); O’Connor v. Balt. Cnty., 382 Md. 102, 110, 854 A.2d 1191, 1196 (2004). If no genuine dispute of material fact exists, this Court determines ‘whether the Circuit Court correctly entered summary judgment as a matter of law.’ Anderson v. Council of Unit Owners of the Gables on Tuckerman Condo., 404 Md. 560, 571, 948 A.2d 11, 18 (2008) (citations omitted). Thus, ‘[t]he standard of review of a trial court’s grant of a motion for summary judgment on the law is de novo, that is, whether the trial court’s legal conclusions were legally correct.’ D’Aoust, 424 Md. at 574, 36 A.3d at 955.”

James G. Davis Constr. Corp. v. Erie Ins. Exch., 226 Md.App. 25, 34-35, 126 A.3d 753 (2015) (quoting Koste v. Town of Oxford, 431 Md. 14, 24-25, 63 A.3d 582 (2013)), cert. denied, 446 Md. 705, 133 A.3d 1110 (2016).

DISCUSSION

I.

In the case, sub judice, the parties do not claim that there is a genuine dispute as to any material fact. It is undisputed that (1) the last date of Piper’s exposure to asbestos dust generated by the installation of insulation to Unit 1 turbine generator at Morgantown was June 28, 1970; (2) Morgantown’s Unit 1 turbine generator, which was fabricated and installed by Westinghouse, was substantially completed no later than July 1970; and (3) Piper was diagnosed with mesothelioma on December 26, 2013. The primary issue in the instant case is whether Piper’s cause of action against CBS is barred by the statute of repose, CJP § 5-108, which is an issue of law. Resolution of that issue will require us to engage in statutory construction of Section 5-108.

A.

The statute of repose, as codified in Section 5-108, provides, in relevant part:

(a) Injury occurring more than 20 years later.—Except as provided by this section, no cause of action for damages accrues and a person may not seek contribution or indemnity for damages incurred when wrongful death, personal injury, or injury to real or personal property resulting from the defective and unsafe condition of an improvement to real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use.
(e) When action accrues.—A cause of action for an injury described in this section accrues when the injury or damage occurs.

(Emphasis added).

In Rose v. Fox Pool Corp., 335 Md. 351, 643 A.2d 906 (1994), Judge Irma Raker, writing for the Court of Appeals, set forth the principles of statutory construction that guide us in interpreting Section 5-108. Judge Raker wrote:

The issues raised in this appeal require us to discern the meaning of § 5-108(a). The cardinal rule of statutory construction is to effectuate and carry out legislative intent. See, e.g., Comptroller v. Jameson, 332 Md. 723, 732, 633 A.2d 93, 97 (1993); GEICO v. Insurance Comm’r, 332 Md. 124, 131, 630 A.2d 713, 717 (1993). Every statute is enacted to further some underlying goal or purpose— “to advance some interest, to attain some end”—and must be construed in accordance with its general purposes and policies. Kaczorowski v. City of Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987); see also State v. Fabritz, 276 Md. 416, 421, 348 A.2d 275, 278 (1975), cert. denied, 425 U.S. 942, 96 S.Ct. 1680, 48 L.Ed.2d 185 (1976). When called upon to construe a particular statute, we begin our analysis with the statutory language itself since the words of the statute, construed according to their ordinary and natural import, are the primary source and most persuasive evidence of legislative intent. Jameson, 332 Md. at 732, 633 A.2d at 97-98; Comptroller v. Fairchild Industries, 303 Md. 280, 284, 493 A.2d 341, 343 (1985). The statute must be construed as a whole so that no word, clause, sentence or phrase is rendered surplusage, superfluous, meaningless or nugatory. Condon v. State, 332 Md. 481, 491, 632 A.2d 753, 758 (1993); Md. Port Adm. v. Brawner Contracting Co., 303 Md. 44, 60, 492 A.2d 281, 289 (1985).

When the language of a statute is plain and clear and expresses a meaning consistent with the statute’s apparent purpose, no further analysis of legislative intent is ordinarily required. Kaczorowski, 309 Md. at 515, 525 A.2d at 633. As we explained, however, in Morris v. Prince George’s County, 319 Md. 597, 573 A.2d 1346 (1990):

[0]ur endeavor is always to seek out the legislative purpose, the general aim or policy, the ends to be accomplished, the evils to be redressed by a particular enactment. In the conduct of that enterprise, we are not limited to study of the statutory language. The plain meaning rule “ ‘is not a complete, all-sufficient rule for ascertaining a legislative intention ....’” The “meaning of the plainest language” is controlled by the context in which it appears. Thus, we are always free to look at the context within which the statutory language appears. Even when the words of a statute carry a definite meaning, we are not “precluded from consulting legislative history as part of the process of determining the legislative purpose or goal” of the law.
319 Md. at 603-04, 573 A.2d at 1349 (citations and footnote omitted); see also Baltimore Cty. C.A.U.T. v. Baltimore Cty., 321 Md. 184, 203-04, 582 A.2d 510, 519-20 (1990); Kaczorowski, 309 Md. at 513, 525 A.2d at 632. The legislative history of a statute, including amendments that were considered and/or enacted as the statute passed through the Legislature, and the statute’s relationship to earlier and subsequent legislation are “external manifestations” or “persuasive evidence” of legislative purpose that may be taken into consideration. Maryland Nat’l Bank v. Pearce, 329 Md. 602, 619, 620 A.2d 941, 949 (1993) (quoting Kaczorowski, 309 Md. at 515, 525 A.2d at 632).

Id. at 358-60, 643 A.2d 906 (emphasis added).

As previously indicated, the primary issue before us in this appeal is whether the statute of repose, Section 5-108, applies to Piper’s cause of action against CBS. Piper however, does not base his argument for the non-applicability of the statute on “the statutory language itself’ of Section 5-108. See id. at 359, 643 A.2d 906. Yet, because we believe that the language of the statute “is plain and clear[,]” we will begin our analysis with “the words of the statute, construed according to their ordinary and natural import.” See id.

It is clear that Piper’s cause of action against CBS is based on “personal injury ... resulting from the defective and unsafe condition of an improvement to real property.” CJP § 5-108(a). Piper’s cause of action, however, is barred if the personal injury “occurs more than 20 years after the date the entire improvement first becomes available for its intended use.” Id. Here, because Morgantown Unit 1 turbine generator became operational by July 1970, Piper’s injury must have “occurred” on or before July of 1990 for his cause of action to survive.

The date of Piper’s last exposure to asbestos dust from Unit 1 turbine generator was June 28, 1970; but his mesothelioma was not diagnosed until 2013. Section 5-108(e) states that “[a] cause of action for an injury described in this section accrues when the injury or damage occurs.” In Burns v. Bechtel Corp., 212 Md.App. 237, 66 A.3d 1187, cert. denied, 434 Md. 312, 75 A.3d 317 (2013), this Court noted:

And as the Court of Appeals explained in Hilliard & Bartko Joint Venture v. Fedco Sys., Inc., 309 Md. 147, 162, 522 A.2d 961 (1987), the Statute of Repose incorporates the common law discovery rule of accrual: “[T]he language of present subsection (e), equating accrual with ‘when the injury or damage occurs,’ means when the injury or damage is discovered.”

Id. at 243, 66 A.3d 1187 (emphasis added). In the present case, Piper’s injury, mesothelioma, was discovered, and thus “occurred,” in 2013, forty-three years after Unit 1 turbine generator “first bec[a]me[ ] available for its intended use.” CJP § 5-108(a). Therefore, because Piper’s cause of action did not accrue within 20 years of the placement into operation of Unit 1 turbine generator, Section 5-108(a) applies to his cause of action and precludes its prosecution against CBS.

B.

Piper, however, contends that his cause of action is not barred by the statute of repose because of the statutory language used by the General Assembly when the statute was originally enacted in 1970. Chapter 666 of the Acts of 1970 reads its entirety:

CHAPTER 666
(Senate Bill 241)
AN ACT to add new Section 20 to Article 57 of the Annotated Code of Maryland (1968 Replacement Volume), title “Limitations of Actions,” to follow immediately after Section 19 thereof, to prohibit the bringing of actions based on injuries arising out of defective conditions of improvements to real property against certain persons after a specified period of time and providing that the provision of the Act shall not apply to actions accruing prior to its effective date.
Section 1. Be it enacted by the General Assembly of Maryland, That new Section 20 be and it is hereby added to Article 57 of the Annotated Code of Maryland (1968 Replacement Volume), title “Limitations of Actions,” to follow immediately after Section 19 thereof, and to read as follows: 20.
No action to recover damages for injury to property real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages incurred as a result of said injury or death, shall be brought more than nine TWENTY years after the said improvement was substantially completed. This limitation shall not apply to any action brought against the person who, at the time the injury was sustained, was in actual possession and control as owner, tenant, or otherwise of the said improvement. For purposes of this section, “substantially completed” shall mean when the entire improvement is first available for its intended use.
Sec. 2. And it be further enacted, That this Act shall not apply to any cause of action arising on or before June 30, 1970.
Sec. 3. And it be further enacted, That this Act shall take effect July 1,1970.
Approved May 21,1970.

(Italic emphasis in original) (bold emphasis added).

Piper contends that the circuit court erred in applying the statute of repose to bar his cause of action against CBS, because his injury “arose” on June 28, 1970, and the session law that passed the original statute of repose contained language indicating that the statute does not apply to injuries arising on or before June 30, 1970. Piper notes that he agrees with CBS that his injury “accrued” in 2013 when his injury was discovered, but distinguishes the date of accrual from the date his that injury arose by arguing that the date of accrual is irrelevant here. Furthermore, Piper argues that the statute of repose cannot be applied retroactively to him, “because subsequent revisions and amendments to the statute lack a ‘clear expression’ in favor of retroactivity.”

CBS responds that the circuit court correctly found that CBS was entitled to repose, because Piper’s cause of action accrued more than twenty years after the improvement was substantially completed. CBS asserts that Piper’s reliance on when his injury “arose” is misplaced, because the anti-retroac-tivity language appearing in Section 2 of the session law was not codified after the statute was enacted.

CBS is correct that, when Chapter 666 of the Acts of 1970 was codified in Article 57 § 20, Section 2 was not included. Piper, however, relies heavily on the case of Roe v. Doe, 193 Md.App. 558, 998 A.2d 383 (2010), aff'd, 419 Md. 687, 20 A.3d 787 (2011), for the proposition that “the uncodified sections of the statute of repose continue to carry the force of law.” In Roe, this Court construed and applied the uncodified retroac-tivity provisions of a statute that increased the limitations period from 3 years to 7 years for minor victims of sexual abuse to bring an action for damages arising out of such abuse after attaining the age of majority. Id. at 564-69, 998 A.2d 383. On appeal, the Court of Appeals affirmed our construction of the retroactivity provision of Chapter 360 of the Acts of 2003. Doe v. Roe, 419 Md. 687, 699, 709-10, 20 A.3d 787 (2011). In so doing, the Court noted that the retroactivity provision of Chapter 360 had not been codified in CJP § 5-117. Id. at 699, 20 A.3d 787. In a footnote to that observation, the Court stated:

See MARYLAND DEPARTMENT OF LEGISLATIVE SERVICES, LEGISLATIVE DRAFTING MANUAL 2011, at 97 (2010) (“Provisions of law need not be codified in order to be legally binding.”); Prince George’s County v. Maringo, 151 Md.App. 662, 671 n. 1, 828 A.2d 257, 262 n. 1 (2003) (“The parties do not dispute that this uncodified portion of the bill has the same force and effect as the codified portion.”).

Id. at 699 n. 11, 20 A.3d 787.

The problem with Piper’s reliance on Roe and Doe is that the uncodified retroactivity provision of Chapter 360 was never subject to repeal and reenactment. Here, Article 57, § 20, the codified version of Chapter 666, was repealed in 1974 and reenacted as CJP § 5-108. See Hillard, 309 Md. at 160, 522 A.2d 961. Section 2 of Chapter 666 was not included in CJP § 5-108. See id. at 160-61, 522 A.2d 961. Moreover, as pointed out by CBS, “§ 5-108 was enacted with substantive changes in its definition of scope and operation of the repose afforded thereby.” See also id.

Nevertheless, Piper argues that, because (1) none of the amendments or revisions to the statute of the repose expressly repealed Section 2, and (2) “there is a ‘strong presumption’ against finding that a statutory revision implicitly repeals a section of a statute absent ‘clear legislative intent [in] support,’ ” “the uncodified sections of the statute of repose continue to carry the force of law.” We need not resolve the issue of Section 2’s viability, because even if Section 2 of Chapter 666 retains “the force of law,” we conclude that Piper’s cause of action is still barred by the statute of repose. We shall explain.

Under Section 2 of Chapter 666, the question is whether Piper’s cause of action “arose” prior to July 1,1970. To answer this question, we need to determine what the General Assembly meant by the term “arising” in Section 2: does it mean, as Piper contends, when one is exposed to asbestos, or does it mean, as CBS contends, when a cause of action accrues, which, under the discovery rule, is the date that one discovers the injuries caused by asbestos exposure? See Mathews v. Cassidy Turley Md., Inc., 435 Md. 584, 611, 80 A.3d 269 (2013) (Under the discovery rule, “a cause of action accrues when the wrong is discovered or when with due diligence it should have been discovered.”).

In Hillard, the Court of Appeals set forth the history of CJP § 5-108, beginning with the enactment of Chapter 666 of the Acts of 1970. 309 Md. at 160, 522 A.2d 961. Speaking for the Court, Judge Lawrence Rodowsky wrote:

The predecessor to present § 5-108 was enacted by Ch. 666 of the Acts of 1970. In the year preceding this enactment Steelworkers Holding Co. v. Menefee, 255 Md. 440, 258 A.2d 177 (1969) had applied the discovery rule to determine accrual of a cause of action for general statute of limitations purposes in a malpractice action against an architect. That same year Mattingly v. Hopkins, 254 Md. 88, 253 A.2d 904 (1969) had held the discovery rule governed accrual of a malpractice action against a professional engineer. The discovery rule had earlier been applied in Callahan v. Clemens, 184 Md. 520, 41 A.2d 473 (1945) to the accrual of a cause of action by an adjoining property owner against a contractor who had allegedly negligently erected a wall. It was clear that one purpose of Ch. 666 was to set a time limit after which the discovery rule could not operate.
Chapter 666 was modified as part of the Code revision project when the Courts and Judicial Proceedings Article was enacted, effective January 1, 1974. From a prohibition, “[n]o action ... shall be brought,” the language was changed to read in relevant part:
Except as provided by this section, no cause of action for damages accrues ... when ... injury to real ... property resulting from the defective ... condition of an improvement to real property occurs more than 20 years after the date the entire improvement first becomes available for its intended use. [Md.Code (1974), CJ § 5-108(a) (emphasis added).]
Present § 5-108(d) was subsection (b) in the 1974 enactment. The 1974 changes also added as subsection (c) the language now found in (e) (“A cause of action for an injury described in this section accrues when the injury or damage occurs.”).

Id. at 160-61, 522 A.2d 961 (italic emphasis in original) (bold emphasis added) (footnote omitted).

Because “one purpose of Chapter 666 was to set a time limit after which the discovery rule could not operate[,]” id. at 160, 522 A.2d 961, a cause of action based on a latent defect or injury that had not accrued under the discovery rule was cut off after twenty years from the time the improvement first became available for its intended use. See id. at 161-62, 522 A.2d 961. Piper’s construction of the statute, however, would create a class of unaccrued causes of action exempted from the statute where the latent defect or injury was present prior to July 1, 1970. Such a construction is contrary to the “clear” purpose of Chapter 666. See id. at 160, 522 A.2d 961.

In addition, in the preamble to Chapter 666, the General Assembly set forth the purpose of Section 2 by stating “that the provision of the Act shall not apply to actions accruing prior to its effective date.” (Emphasis added). Section 2 then states “[tjhat this Act shall not apply to any cause of action arising on or before June 80, 1970.” (Emphasis added). To construe the term “arising” in Section 2 to mean something different from the term “accruing” in the preamble would create an ambiguity, if not an outright conflict, between the purpose of Section 2, as expressed in the preamble, and the statutory language of Section 2 implementing that purpose. Moreover, the distinction between when a cause of action “arose” and when a cause of action “accrued” did not exist in Maryland case law until sometime after the enactment of Chapter 666 in 1970 when personal injury cases based on a disease with a long latency period, such as asbestos exposure cases, were brought. See John Crane, Inc. v. Scribner, 369 Md. 369, 383, 390, 800 A.2d 727 (2002) (noting, for purposes of the non-economic damages cap statute, which was passed in 1986, “the distinction made by the Legislature between when an action arises and when it accrues”). Piper’s argument that the two terms have distinct meanings, although correct today for asbestos exposure cases, cannot be grafted onto the General Assembly’s intent in 1970 when the statute of repose was passed, because those terms had not yet been distinguished.

Finally, under the Maryland Constitution, the General Assembly cannot take away vested property rights. See Md. Const, art. Ill, § 40, Md. Const. Declaration of Rights, Art. 19, 24. In general, a property right becomes vested only when it accrues. See Dua v. Comcast Cable of Md., Inc., 370 Md. 604, 632-33, 805 A.2d 1061 (2002). (“[TJhere normally is a vested property right in a cause of action which has accrued prior to the legislative action.”). Because of such constitutional limitation, the preamble states that Chapter 666 does not apply to causes of action “accruing prior to its effective date.” Section 2 of Chapter 666 implements that purpose so that the application of Chapter 666 will be constitutional. There is nothing in the language of Chapter 666 to indicate that Section 2 goes beyond protecting the statute’s constitutionality. Therefore, from the standpoint of Chapter 666’s constitutionality, “arising” in Section 2 means “accruing.”

In sum, because of the history, language, and purpose of Chapter 666 of the Acts of 1970, we conclude that the term “arising” in Section 2 carries the same meaning as the term “accruing:” the date that the injury is discovered. Accordingly, Section 2 does not bar the application of the statute of repose to Piper’s cause of action.

The statute of repose has an exemption for manufacturers in asbestos-related litigation:

(2) This section does not apply if:
(ii) In a cause of action against a manufacturer or supplier for damages for personal injury or death caused by asbestos or a product that contains asbestos, the injury or death results from exposure to asbestos dust or fibers which are shed or emitted prior to or in the course of the affixation, application, or installation of the asbestos or the product that contains asbestos to an improvement to real property[.]

CJP § 5—108(d)(2)(ii) (emphasis added).

Piper contends that, if the statute of repose applies, CBS does not benefit from it, because CBS is a manufacturer of asbestos, and thus falls within the statute’s exemption. CBS responds that it is not a manufacturer, because the turbine generator installed at Morgantown is not a “product,” and because CBS did not manufacture the injury-causing asbestos used in the insulation. CBS also argues that, even if it is a manufacturer under Section 5-108(d)(2), the application of that section’s exemption to Piper’s cause of action would be unconstitutional, because such exemption was not enacted until 1991, which was after Piper’s claim was barred on July 1, 1990. We agree with CBS that applying the manufacturer’s exemption of the statute of repose to Piper’s claim would be unconstitutional.

The Court of Appeals made clear in Dua that “[f]rom the earliest cases to the present, this Court has consistently taken the position that retroactive legislation, depriving persons or private entities of vested rights, violates the Maryland Constitution, regardless of the reasonableness or ‘rational basis’ underlying the legislation.” 370 Md. at 625, 805 A.2d 1061. One such vested right is the right not to be sued on “a cause of action that was otherwise barred.” Id. at 627, 805 A.2d 1061 (“A statute, which retroactively created a cause of action, resulting in reviving a cause of action that was otherwise barred, was held to deprive the defendant of property rights in violation of Article 24 of the Declaration of Rights.” (citing Smith v. Westinghouse Elec., 266 Md. 52, 57, 291 A.2d 452 (1972))).

In the case sub judice, Piper’s cause of action against CBS as to the turbine generator was barred by the statute of repose prior to the enactment of the manufacturer’s exemption in 1991. The turbine generator was completed in July of 1970. Pursuant to CJP § 5-108(a), Piper’s cause of action would have had to “accrue” on or before July of 1990, for Piper to avoid the bar of the statute. Both parties agree that Piper’s cause of action accrued on December 26, 2013, when he was diagnosed with mesothelioma. Because Piper’s cause of action accrued after July of 1990, CBS had a vested right in not being sued as of that date. See Dua, 370 Md. at 627, 633, 805 A.2d 1061. Accordingly, the 1991 amendment creating the manufacturer’s exemption could not revive Piper’s claim against CBS, “a cause of action that was otherwise barred.” Id. at 627, 805 A.2d 1061.

CONCLUSION

In sum, the plain language of the statute of repose, CJP § 5-108, bars Piper’s cause of action against CBS, because Piper’s cause of action accrued when his mesothelioma was diagnosed in December 2013, which was more than twenty years after the turbine generator installed by Westinghouse at Morgantown became operational in July of 1970. Section 2 of the original statute of repose, Chapter 666 of the Acts of 1970, which precluded application of the statute to “any cause of action arising on or before June 30, 1970[,]” does not apply to Piper’s cause of action, because the term “arising” means “accruing” in the context of the history, language, and purpose of the statute. (Emphasis added). The manufacturer’s exemption, set forth in Section 5-108(d)(2), also does not apply, because the application of such exemption would unconstitutionally deprive CBS of its vested right in not being sued for causes of action barred by the statute of repose prior to the exemption’s enactment in 1991. Accordingly, the trial court did not err in granting CBS’s motion for summary judgment.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED; COSTS TO BE PAID BY APPELLANT.

      . Appellant passed away on June 2, 2016. June Diane Duffy was appointed Personal Representative of the Estate of James F. Piper on June 17, 2016, and a notice of substitution was filed in the instant appeal on August 8, 2016.

      . Piper's issues presented, as set forth in his brief, are as follows:
      1. Whether the trial court erred in relying on this court’s decision in Burns v. Bechtel Corp. to hold that [CBS] was entitled to the benefit of repose set forth in Md. Cts. & Jud. Pro. § 5-108.
      2. Whether the trial court erred in holding that Md. Cts. & Jud. Pro. § 5-108 could be applied retroactively to Mr. Piper’s injurious exposure to asbestos that occurred prior to the statute's effective date.
      3. Whether the trial court erred in failing to deem [CBS] a manufacturer exempt from repose pursuant to Md. Cts. & Jud. Pro. § 5-108(d)(2)(ii).

      . Mesothelioma is "a disease in which cancer (malignant) cells are found in the sac lining the chest (the pleura) or abdomen (the peritoneum). This is a rare form of cancer and most people with malignant mesothelioma have worked on jobs where they breathed asbestos.” John Crane, Inc. v. Puller, 169 Md.App. 1, 19 n.1, 899 A.2d 879, cert. denied, 394 Md. 479, 906 A.2d 943 (2006) (citation and internal quotation marks omitted).

      . In his complaint, Piper alleges that in his career as a plumber and steamfitter, he "served in the United States Navy from 1951 to 1954” and "worked with and/or was exposed to asbestos products and/or protective equipment that were manufactured, supplied and/or installed by the Defendants from 1948 to the late 1970s.”

      . The named defendants in Piper’s complaint were: (1) "3M Company, f/k/a Minnesota Mining & Mfg. Co., n/k/a 3-M Corporation!;]” (2) "AC & R Insulation Co., Inc.[;]” (3) "A.O. Smith Corporation!;]” (4) "Avco Corporation (for its Spencer-Lycoming Divison)!;]” (5) "Baltimore Air-coil Company, Inc.[;]” (6) "Burnham Corporation!;]” (7) "Carrier Corporation!;]” (8) CBS; (9) "Certainteed Corporation (and as Sucessor in Interest to Gustin Bacon)!;]” (10) "C.J. Coakley Co., Inc.[;]” (11) "Cleaver-Brooks, Inc. (a Division of Aqua-Chem, Inc.)[;]” (12) "Crane Company, Inc. (and as Successor to Pacific Steel Boiler)!;]” (13) "Crown Cork & Seal Company, Inc. Successor in Interest to Mundet Cork Corp.[;] (14) "Federated Development, LLC (as Successor to Pacific Steel Boiler)!;]” (15) "Georgia-Pacific, LLC f/k/a Georgia-Pacific!;]” (16) "Hampshire Industries, Inc. í/k/a John J. Hampshire, Co., Inc.[;]” (17) "Ingersoll-Rand Company!;]” (18) “Kaiser Gypsum Company, Inc.[;]” (19) "Krafft-Murphy Company!;]” (20) “MCIC, Incorporated, l/lt/a McCormick Asbestos Co.[;]” (21) "Metropolitan Life Insurance, Co.[;]” (22) "Noland Company!;]” (23) “Oakfabco, Inc., f/k/a Kewanee Boiler Corporation!;]” (24) "Ric-Wil, Inc.[;]” (25) "Sid Harvey Industries, Inc.[;]” (26) SPX Cooling Technologies, Inc., f/k/a Marley Cooling Tower!;]” (27) "Superior Boiler Works, Inc.[;]” (28) "Thos. Somerville Co.[;]” (29) "Trane U.S., Inc., as Successor to and f/k/a American Standard Companies, Inc.[;]” (30) “Union Carbide Corporation[;]” (31) "Uniroyal, Inc.[;]” (32) "The Walter E. Campbell Company, Inc.[;j" and (33) "Weil-McLain, Inc.”

      . Maryland Rule 2-602(b) states:
      If the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment:
      (1) as to one or more but fewer than all of the claims or parties; or
      (2) pursuant to Rule 2-501 (f)(3), for some but less than all of the amount requested in a claim seeking money relief only.
      (Emphasis added). We note that, at the conclusion of the hearing on CBS’s motion, Piper’s counsel asked the circuit court to certify the judgment as final pursuant to Rule 2-602. The court indicated a willingness to do so but expressed uncertainty as to the proper procedure. Piper’s counsel stated that he would need to “look at the Rule,” and the court replied: “Take a look and we’ll get back to it.” Neither Piper’s counsel nor the court ever got “back to it.”

      . Although his cause of action against CBS did not accrue prior to the enactment of Chapter 666 in 1970, Piper argues that the application of the statute of repose to his unaccrued action would be unconstitutional. A similar argument was rejected by the Court of Appeals in Whiting-Turner Contracting Co. v. Coupard, 304 Md. 340, 499 A.2d 178 (1985). In Whiting-Turner, appellants claimed that Article 19 of the Maryland Declaration of Rights was violated, because Section 5-108(b) cut off any claim for indemnity against an architect or professional engineer "before a cause of action for indemnity could even have accrued.” Id. at 359-60, 499 A.2d 178. The Court responded:
      Chapter 698 of the Acts of 1979 which enacted subsections (b) and (c) provided: "That this Act shall take effect July 1, 1979.” The operative words of subsection (b) are that "[a] cause of action for damages does not accrue and a person may not seek contribution or indemnity ....” Consequently we cannot accept an alternative argument advanced by CPC that subsection (b) applies only to claims based on Injury where Completion occurred on or after July 1, 1979.

        Id. at 360 n.3, 499 A.2d 178 (emphasis added).


source: Caselaw Access Project

author: Leahy, J.

license: Public Domain

text:
    161 A.3d 14
    Rene MITCHELL v. Keith YACKO, et al.
    No. 200,
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    May 31, 2017

      Argued by: Michael P. Coyle (Coyle Law Group, on the brief), Columbia, MD, for Appellant.
    Argued by: Phillip Chong (Laurie B. Goon, Duane Morris, LLP, on the brief), Baltimore, MD, for Appellee.
    Panel: Nazarian, Leahy, Friedman, JJ.
   Leahy, J.

The unscrupulous mortgage transaction in this case unfolded when Rene Mitchell (“Appellant”) sought a fixed rate loan for the purchase of a residential property and executed a sales contract specifying the same. At the closing a month later, Ms. Mitchell, to her surprise, realized that the loan documents she had just executed were actually for an adjustable rate mortgage. She halted the closing, had the word “VOID” stamped on all executed documents, and informed the lender of the error and requested acknowledgment of cancellation in writing. Several days and notices later, the lender sent Ms. Mitchell a notice stating that her loan had been modified to a fixed rate loan at 6.2% interest. Ms. Mitchell was apparently satisfied with this and made payments on the loan for nearly eight years after moving into the residence. No new loan documents were executed.

Ms. Mitchell defaulted in January 2018, and in August 2015, substitute trustees for the current loan servicer, Keith M. Yacko, Robert E. Frazier, Thomas J. Gartner, Jason L. Hamlin, Glen H. Tschirgi, and Gene Jung (“Appellees” or “Substitute Trustees”), filed an order to docket a foreclosure in the Circuit Court for Prince George’s County. Ms. Mitchell filed a motion to stay the sale and dismiss the action, arguing, inter alia, that the order to docket did not contain copies of a valid and enforceable note or deed of trust. After her motion was denied without a hearing, Ms. Mitchell appealed.

A close examination of the documents in the record reveals that on July 14, 2005—three days after Ms. Mitchell terminated the closing—the adjustable rate deed of trust was filed in the land records for Prince George’s County with the “VOID” marks excised. This document, devoid of all “VOID” marks, was attached as an exhibit to the 2015 order to docket filed 10 years later. Also, appearing for the first time was a copy of the Adjustable Rate Note that Ms. Mitchell signed at the closing, with the “VOID” stamps removed. In place of the “VOID” stamps, both documents donned new stamps reading simply “REDACTED.”

Ms. Mitchell raises four questions in her appeal, but the first is dispositive: “Did the Circuit Court err in failing to dismiss the foreclosure action because the Note and Deed of Trust in the Order to Docket are not valid and enforceable?” We hold that a foreclosure proceeding cannot be instituted upon forged documents. The aforementioned documents— clearly false and materially altered to look genuine—suggest forgery, and equitable relief is not available to a party with unclean hands. Ms. Mitchell’s Rule 14-211 motion to stay the sale and dismiss the action stated a facially valid defense to the foreclosure. As such, the circuit court erred in denying the motion without a hearing. We vacate the court’s order and remand for a hearing.

BACKGROUND

A. Closing the Closing

In June 2005, Rene Mitchell decided to purchase residential property located at 9003 Harness Way in the City of Bowie, Maryland (“the Property”) from Maria and Harold J. Moxley. On June 8, 2005, Ms. Mitchell signed a sales contract, listing the purchase price at $555,900.00.

Ms. Mitchell desired to finance the purchase with a fixed rate 80-year mortgage from Fremont Investment and Loan (“Fremont”). According to an affidavit she filed in the underlying foreclosure action, Ms. Mitchell and Fremont had agreed to a conventional fixed rate loan, as documented by the terms of the sales contract. However, at the closing on July 11, 2005, Ms. Mitchell noticed, contrary to her expectations and much to her surprise, that the promissory note contained an adjustable interest rate and the deed of trust contained an adjustable rate rider.

Ms. Mitchell then informed her realtor and the settlement agents of the error, requested that the closing be terminated, and refused to sign any further documents. She also requested the return of all documents that she had signed up to that point. E. 34. Although the settlement agents, Barbara Licon and Philip Sardelis, agreed to terminate the closing, they told Ms. Mitchell that they had to keep the documents and shred them. Consequently, Ms. Mitchell requested that they stamp a “VOID” mark on each page of each document that she signed. Ms. Licon complied. Ms. Mitchell also wrote a note on the adjustable rate note which read: “I requested this copy of Voided documents with Barbara Licon signature of Void [sic]. My Realtor is present to witness. We are to come back tomorrow to execute corrected documents. I have requested Fremont provide me a letter acknowledging cancellation of this debt loan, Deed + promissory note. RM[.]”

Ms. Mitchell followed-up on the same day with the following letter to Fremont:

I am requesting that you immediately cancel my loan and return all monies due back to me based on the Loan Documents, executed by Sandler Title & Escrow, LLC on behalf of Fremont Investment & Loan, not reflecting my sales contract!.]
Upon my review of the signed loan documents prepared by Barbara Licon from Sandler Title & Escrow, LLC ... [t]he loan package was not explained very well and was rushed. I saw many errors in the loan package mid way through the closing and stopped the closing. Ms. Licon stated that they would correct the documents and I must immediately contact Fremont Investment & Loan directly and cancel the original loan documents, which she kept in her possession, claiming she would have to shred. I kept the blank documents and requested her to draw a void line across each one. None of the second copy documents have my signature and I am very uncomfortable with leaving the original documents for her to shred but she states this is a normal procedure. My realtor Paula Haynes was a witness to this conversation between Ms. Licon and me as was the notary Mr. Phillip Sardelis who also signed the documents as we went through them. Both can also verify that I requested the documents to this loan be destroyed.
... The loan terms are:
1st Mortgage 30 year conventional firm fixed at an interest rate of 6.200%
2nd Mortgage 30 year conventional firm fixed at an interest rate of 9.125%
Please advise me on what the next course of action is to provide new accurate loan documents for review and signatures.
Again, this is my official notice to cancel the original Adjustable Rate loan documents that I did not agree to purchase and were not accurate based on the attached documents for the property at 9003 Harness Way, Bowie[.]

Fremont responded by letter on July 12, 2005, acknowledging receipt of Ms. Mitchell’s request to cancel her loan. Fremont agreed to cancel the loan “transaction,” and indicated there was a “new transaction” that was adjusted to provide the “proper loan requirements.”

On the same day, Fremont issued two notices to Ms. Mitchell. The first affirmed that, “[a]s of the date of this Notice, the principal loan balance that is owed to Fremont Investment & Loan for 444,728.00 AT 8.6770% ANNUAL PERCENTAGE RATE AS REFLECTED ON THE FEDERAL TRUTH-IN-LENDING DISCLOSURE STATEMENT IS CANCELLED AS OF THE ABOVE REFERENCED DATE.” (Emphasis in original).

The second notice stated that Ms. Mitchell’s loan would henceforth be a conventional fixed rate loan, and provided that:

As of the date of this Notice, the principal loan balance that is owed to Fremont Investment & Loan for 444,728.00 AT 6.200% 360 MONTHS CONVENTIONAL FIXED RATE FULLY AMORTIZING LOAN.
In addition, we would like to advise you that you have thirty (30) days after receipt of this Notice to dispute the validity of the above debt, or any portion thereof. If you do not do so, the debt will be assumed to be valid. If you canceled notify us in writing within this thirty (30) day period that you dispute the debt, or any portion thereof, we will obtain and mail to you verification of the debt.
Furthermore, you have thirty (30) days after the receipt of this Notice to request the name and address of the original creditor, if different from the current creditor. Upon receipt of a written request from you within the thirty (30) day period, we will provide you with the name and address of your original creditor.

(Emphasis in original).

No new loan documents were executed. On July 15, 2005, Fremont returned the cancelled documents—the deed of trust and note, bearing the “VOID” marks and Ms. Mitchell’s handwritten note—to Ms. Mitchell. Significantly, the first pages of the deed and note sent to Ms. Mitchell contain stamps reading “CANCELLED AND SATISFIED IN FULL without recourse” followed by a signature line dated July 15, 2005. Although it takes some deciphering, the signature line on the stamp reads “Fremont Investment & Loan, Lizbeth Stokes, Vice President.”

B. Foreclosure Proceedings

Ms. Mitchell lived at the Property and made consistent payments for almost eight years. On January 1, 2013, Ms. Mitchell first failed to make a payment on the loan and continued to miss installment payments each month thereafter, according to the affidavit of default and indebtedness executed by an agent for the loan servicing company.

On October 10, 2014, the Substitute Trustees, acting for U.S. Bank, sent a notice of intent to foreclose to Ms. Mitchell. Then, on August 24, 2015, the Substitute Trustees filed an order to docket foreclosure in the Circuit Court for Prince George’s County.

As required by Maryland Rule 14-207, the order to docket foreclosure contained copies of a note and deed of trust as exhibits revealing that 10 years earlier a deed of trust was filed in the land records for Prince George’s County on July 14, 2005—-just three days after the terminated closing. These documents were apparently doctored, because they do not bear the “VOID” marks. Instead, the copy of the deed of trust filed with the order to docket bears the marking “REDACTED” on each page, and contains an adjustable rate rider. Similarly, each page of the adjustable rate note bears the marking “REDACTED.” The note does not contain the “VOID” marks, Ms. Mitchell’s handwritten note, or the lender’s cancellation mark.

As further required by Maryland Rule 14-207, the order to docket contains an affidavit, executed by the servicing agent, stating that the note is a “true and accurate copy.” Another affidavit, this one executed by Robert E. Frazier, affirms, in pertinent part, “[t]hat [ ] attached hereto is a true and accurate copy of the Deed of Trust that is the lien instrument subject to this foreclosure action. If applicable, any personal and/or private information has been redacted as noted on the document.” The Substitute Trustees also filed an affidavit of default and indebtedness, stating that, as of June 25, 2015, Ms. Mitchell owed $478,879.94.

On September 25, 2015, before the Substitute Trustees filed the final loss mitigation affidavit, Ms. Mitchell filed, under Maryland Rule 14-211, a “Motion to Dismiss for Improper Service and Motion to Stay Sale and Dismiss Action for Failure to State a Claim.” In her pro se motion, she argued that she was not served properly and that the action should, as a result, be dismissed. On the merits she argued that: (1) the order to docket did not provide a copy of a valid and enforceable note or deed of trust because the note and deed of trust were voided; (2) the Substitute Trustees and U.S. Bank had failed to plead that they owned or held the note and deed of trust; and (3) the note was non-negotiable and the indorsement was invalid.

On November 6, 2015, the Substitute Trustees filed an opposition, arguing that Ms. Mitchell was served properly. In addition, the Substitute Trustees contended that the note and deed of trust were valid and had not been cancelled, but that only the loan’s interest rate had been adjusted, and that this was consistent with the fact that Ms. Mitchell never returned the proceeds of the loan and made consistent payments for almost eight years. The Substitute Trustees further maintained that they included an affidavit certifying ownership and proper indorsement of the note in their order to docket foreclosure and that the note was negotiable.

On February 11, 2016, the circuit court, without a hearing, entered an order denying Ms. Mitchell’s motion to stay the sale and dismiss the action. On March 14, 2016, Ms. Mitchell timely noted an appeal to this Court.

DISCUSSION

I.

The Voided Note and Deed

Before this Court, Ms. Mitchell argues that the note was voided before the closing was completed, and that she can-celled the transaction properly, as acknowledged by Fremont in their cancellation notices. She contends that the note and deed of trust included in the order to docket are fraudulent because someone had removed the “VOID” marks and other information.

The Substitute Trustees respond by claiming that Ms. Mitchell and Fremont modified the interest rate, and that they did not cancel the loan. They observe that Ms. Mitchell’s actions in keeping the loan proceeds and making consistent payments on the note as if it were a fixed rate loan for almost eight years are inconsistent with the cancellation of the note and deed of trust. Indeed, they point out that Ms. Mitchell moved into the house and made payments to the bank without demanding a new note or deed of trust—a beguiling argument, until we examine the evidence and see that it is beside the point.

We open our analysis with Maryland Rule 14-207, which addresses the pleadings and exhibits that must be filed to commence a foreclosure, and Rule 14-211, which addresses a borrower’s ability to file a motion to stay a foreclosure sale. Maryland Rule 14-207(a) provides that “[a]n action to foreclose a lien pursuant to a power of sale shall be commenced by filing an order to docket.” Maryland Rule 14-207(a)(l). Then, subsection (b) specifies which exhibits must be filed with the order to docket. Relevant to the present case, an order to docket must “include or be accompanied by:”

(1) a copy of the lien instrument supported by an affidavit that it is a true and accurate copy, or, in an action to foreclose a statutory lien, a copy of a notice of the existence of the lien supported by an affidavit that it is a true and accurate copy;
(2) an affidavit by the secured party, the plaintiff, or the agent or attorney of either that the plaintiff has the right to foreclose and a statement of the debt remaining due and payable;
(3) a copy of any separate note or other debt instrument supported by an affidavit that it is a true and accurate copy and certifying ownership of the debt instrument;
(4) a copy of any assignment of the lien instrument for purposes of foreclosure or deed of appointment of a substitute trustee supported by an affidavit that it is a true and accurate copy of the assignment or deed of appointment.

Md. Rule 14—207(b) (emphasis added). The law is clear then, that in order to commence a foreclosure action pursuant to a power of sale, as in the present case, one must file an order to docket a foreclosure accompanied by copies of the lien instrument (the deed of trust) and the debt instrument (the note), supported by affidavits stating that they are “true and accurate cop[ies.]”

Before we turn to Maryland Rule 14-211, we consider Wells Fargo Home Mortgage, Inc. v. Neal, 398 Md. 705, 922 A.2d 538 (2007), a foreclosure case that guides our analysis. In that case, Wells Fargo, the mortgagee by assignment, instituted foreclosure proceedings against Neal, the homeowner, after Neal fell behind on his mortgage payments. 398 Md. at 711-12, 922 A.2d 538. Neal then filed a complaint against Wells Fargo, instituting a new action and alleging that Wells Fargo breached the terms of the underlying deed of trust by not participating in pre-foreclosure loss mitigation prescribed by the Department of Housing and Urban Development. Id. at 712, 922 A.2d 538. His complaint argued that Wells Fargo’s failure to engage in loss mitigation was a breach of contract that would entitle him to money damages, and requested declaratory and injunctive relief preventing Wells Fargo from foreclosing on the property. Id. at 712-13 & n.4, 922 A.2d 538. The circuit court granted summary judgment to Wells Fargo after a hearing. Id. at 713, 922 A.2d 538.

The Court of Appeals held, first, that Neal could not advance, as an affirmative claim, a breach of contract claim based on Wells Fargo’s alleged violation of the HUD regulations mentioned in the deed of trust. Id. at 711, 922 A.2d 538. Nonetheless, the Court also held that Neal could raise a violation of the HUD regulations as a defense in a motion to stay the sale and dismiss the foreclosure. Id.

The Court’s reasoning is applicable to the present case. The Court observed that a foreclosure involving a power of sale— as we have in the present case—is “ Intended to be a summary in rem proceeding’ which carries out “ ‘the policy of Maryland law to expedite mortgage foreclosures.’ ” Id. at 726, 922 A.2d 538 (quoting G.E. Capital Mortg. Servs., Inc. v. Levenson, 338 Md. 227, 245, 657 A.2d 1170 (1995)). Nonetheless, the Court stated that former Maryland Rule 14-204, governing the commencement of foreclosure actions, did not “prohibit mortgagors from raising viable defenses to a foreclosure to which the mortgagee is not entitled.” Id. (citing Bachrach v. Washington United Coop., 181 Md. 315, 319, 29 A.2d 822 (1943)). The Court then stated that a mortgagor could combat a foreclosure in three ways: a pre-sale injunction, a post-sale exception, and an exception to the auditor’s statement of account. Id.

Importantly, the Court then specified that Maryland’s foreclosure procedure was “equitable in nature.” Id. at 728, 922 A.2d 538 (citations omitted). Therefore, the Court explained that

the venerated equity doctrine of clean hands which requires that “he who comes into equity must come with clean hands,” Hlista v. Altevogt, 239 Md. 43, 48, 210 A.2d 153, 156 (1965), is applicable in foreclosure proceedings such as the one implicated in the present case.
The clean hands doctrine states that “courts of equity will not lend their aid to anyone seeking their active interposition, who has been guilty of fraudulent, illegal, or inequitable conduct in the matter with relation to which he seeks assistance.” Hlista, 239 Md. at 48, 210 A.2d at 156; see also Hicks v. Gilbert, 135 Md.App. 394, 400, 762 A.2d 986, 989-90 (2000). The doctrine does not mandate that those seeking equitable relief must have exhibited unblemished conduct in every transaction to which they have ever been a party, but rather that the particular matter for which a litigant seeks equitable relief must not be marred by any fraudulent, illegal, or inequitable conduct. Hlista, 289 Md. at 48, 210 A.2d at 156; Hicks, 135 Md.App. at 400-01, 762 A.2d at 990 (“There must be a nexus between the misconduct and the transaction, because ‘[w]hat is material is not that the plaintiffs hands are dirty, but that he dirties them in acquiring the right he now asserts.’ ”) (quoting Adams v. Manown, 328 Md. 463, 476, 615 A.2d 611, 617 (1992)).

Id. at 729-30, 922 A.2d 538 (emphasis added). Thus, in order to seek relief through foreclosure, the matter “must not be marred by any fraudulent, illegal, or inequitable conduct.” Id. at 730, 922 A.2d 538.

As the Neal opinion observed, a party may combat a foreclosure before the sale by filing what is currently called a motion to stay the sale and dismiss the action (what the Neal Court called a “pre-sale injunction”).

Now we turn to Maryland Rule 14-211, which governs motions to stay and dismiss and which begins by defining who may file:

(a) Motion to Stay and Dismiss.
(1) Who May File. The borrower, a record owner, a party to the lien instrument, a person who claims under the borrower a right to or interest in the property that is subordinate to the lien being foreclosed, or a person who claims an equitable interest in the property may file in the action a motion to stay the sale of the property and dismiss the foreclosure action.

After stating the timing requirements for filing the motion, Maryland Rule 14-211(a) lists the substantive requirements of the motion:

(3) Contents. A motion to stay and dismiss shall:
(A) be under oath or supported by affidavit;
(B) 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;
(C) be accompanied by any supporting documents or other material in the possession or control of the moving party and any request for the discovery of any specific supporting documents in the possession or control of the plaintiff or the secured party;
(D) state whether there are any collateral actions involving the property and, to the extent known, the nature of each action, the name of the court in which it is pending, and the caption and docket number of the case;
(E) state the date the moving party was served or, if not served, when and how the moving party first became aware of the action; and
(F) if the motion was not filed within the time set forth in subsection (a)(2) of this Rule, state with particularity the reasons why the motion was not filed timely.

Subsection (b) of the Rule then states that the circuit court may deny the motion without a hearing if the motion (1) was not timely filed and there is no good cause for this lack of compliance; (2) does not substantially comply with the Rule’s requirements; or (3) does not state a valid defense on its face. If the motion fulfills these three requirements, however, the Rule goes on to say that the court must hold a hearing on the motion. Maryland Rule 14-211(b)(2). See also Fishman v. Murphy ex rel. Estate of Urban, 433 Md. 534, 543 n.5, 72 A.3d 185 (2013). Subsections (c) and (d) of the Rule address stays of sales pending hearings and scheduling orders, respectively. Finally, subsection (e), governing the court’s final determination on the motion, provides:

(e) Final Determination. After the hearing on the merits, if the court finds that the moving party has established that the hen or the lien instrument is invalid or that the plaintiff has no right to foreclose in the pending action, it shall grant the motion and, unless it finds good cause to the contrary, dismiss the foreclosure action. If the court finds otherwise, it shall deny the motion.

In Buckingham v. Fisher, 223 Md.App. 82, 115 A.3d 248 (2015), this Court analyzed the proper pleading standard for stating a facially valid defense under Rule 14-211, and whether a hearing on the merits is required to make a determination on the motion once a defense is properly pleaded. In that case, as in the instant case, the appellants filed a Rule 14-211 motion to stay or dismiss a foreclosure action filed against them. Id. at 85-86, 115 A.3d 248. The appellants there raised two defenses: one challenging the validity of the lien based on forgery and the other challenging the right of the trustees to foreclose based on defects in the notice of sale. Id. at 88, 115 A.3d 248.

Judge Friedman, writing for this Court, explained that “[i]t is clear from this provision[, Rule 14—211(a)(3),] that the factual and legal bases of a defense must be stated ‘with particularity’ and that any available supporting documents or material must be provided.” Id. at 89, 115 A.3d 248. And, we recognized that a “[fjailure to state a facially valid defense is one of the three grounds for denial at the initial determination phase[,]” but that, nonetheless, “Section 14—211(b)(2) [] requires that the court hold an evidentiary hearing on the merits if none of the three grounds for denial provided in subsection (b)(1) are present.” Id. at 90, 115 A.3d 248.

The Court further stated that forgery is a valid defense under Rule 14-211, and set out the three elements of forgery as a defense under Rule 14-211: “ ‘[1] a false making or material alteration, [2] with intent to defraud, [3] of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability.’ ” Id. at 93, 115 A.3d 248 (quoting Harding v. Ja Laur Corp., 20 Md.App. 209, 212, 315 A.2d 132 (1974)).

Returning to the present case, we first recognize that the denial of a motion to stay a foreclosure sale and dismiss the action under Maryland Rule 14-211 “lies generally within the sound discretion of the trial court.” Anderson v. Burson, 424 Md. 232, 243, 35 A.3d 452 (2011) (citing Wincopia Farm, LP v. Goozman, 188 Md.App. 519, 528, 982 A.2d 868 (2009)). Although we generally review the circuit court’s denial of Ms. Mitchell’s Rule 14-211 motion for an abuse of discretion, Svrcek v. Rosenberg, 203 Md.App. 705, 720, 40 A.3d 494 (2012), “[w]e review the trial court’s legal conclusions de novo.” Id. (citing Wincopia Farm, 188 Md.App. at 528, 982 A.2d 868). Further, we review the circuit court’s decision to deny Ms. Mitchell’s motion without a hearing for legal correctness. Buckingham, 223 Md.App. at 92-93, 115 A.3d 248.

We hold that a party cannot institute a foreclosure upon forged documents. Foreclosure is an equitable procedure, and the Substitute Trustees must demonstrate, upon remand, that this particular foreclosure has not “be[en] marred by [ ] fraudulent, illegal, or inequitable conduct.” Neal, 398 Md. at 730, 922 A.2d 538.

When Ms. Mitchell discovered at the July 11, 2005 closing that the deed of trust and the note contained an adjustable rate, she terminated the closing and had “VOID” stamped on the documents. The record contains no other deed of trust or note executed by the parties, nor is there any evidence that a valid deed or note exists. Nonetheless, the order to docket foreclosure was filed with copies of a deed of trust and note—materially altered to look genuine—accompanied by an affidavit stating that they are each “[a] true and accurate copy[.]” But a “true and accurate copy” of the deed of trust would have had ‘VOID” displayed on each page, and the note that Ms. Mitchell signed would have contained her notations indicating that it had been voided along with the cancellation stamp signed by Fremont’s representative.

Ms. Mitchell’s pro se Rule 14-211 motion sufficiently pleaded her defense. Her motion stated:

Attached to the Plaintiffs Order to Docket is what is alleged to be a “Redacted” copy of the canceled Adjustable Rate Promissory Note and Deed of Trust. However, the alleged “Redacted” copy of the canceled Adjustable Rate Promissory Note and Deed of Trust are exactly the same as the cancelled Adjustable Rate Promissory Note and Deed of Trust returned by the lender Fremont to the Defendant with the exception of the missing signed “Cancellation and Satisfaction in Full” stamp placed by the lender Fremont and the “Void” stamps and initials placed by the settlement agent Barbara Licon and the Defendant.
At no time has the lender Fremont presented to the Defendant the opportunity to execute any new documents constituting the new Conventional Fixed Rate 30-year Note and Deed of Trust as agreed. The Defendant has stood ready to execute such documents but none have been issued. Further the defendant has taken numerous steps to resolve the issues with the note and security instrument including making consistent payments but was frustrated at every turn by an ever changing cast of characters and entities each fraudulently attempting to assert rights that they did not possess or could not prove with any certainty they had the right to assert.

(Emphasis added; citations omitted). Ms. Mitchell further stated that the order to docket did not contain true and accurate copies of the note and deed of trust because those documents had been voided. Ms. Mitchell supported her allegations with exhibits, attaching the deed of trust and note with “VOID” marks and the deed of trust and note without the “VOID” marks (filed with the order to docket) to her motion. Construing this pleading liberally, we determine that Ms. Mitchell has pleaded with particularity the elements of forgery and that her motion, “states on its face a valid defense to the validity of the lien instrument[.]” See Maryland Rule 14-211(b). In this case, Ms. Mitchell in her motion not only asserted that the lender and its successors “fraudulently attempted] to assert rights that they did not possess,” but she also attached the materially altered documents that demonstrate “the fraudulent making of a false writing having apparent legal significance.” Smith v. State, 7 Md.App. 457, 460, 256 A.2d 357 (1969). We conclude, therefore, that the circuit court erred in denying Ms. Mitchell’s motion to stay the sale and dismiss the foreclosure action without a hearing.

JUDGMENT VACATED; CASE REMANDED TO THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

COSTS TO BE PAID BY APPELLEES.

ATTACHMENT

      . The other questions Ms. Mitchell presents are as follows:
      2. “Did the Circuit Court err in failing to dismiss the foreclosure action because the certification that the Note was true and accurate and owned by the foreclosing party was invalid?’’
      3. "Did the Circuit Court err in failing to dismiss the foreclosure action because the endorsement in blank of the Note was invalid?”
      4. "Did the Circuit Court err in failing to dismiss the foreclosure action because service of the Order to Docket was never properly effected?”

      . A forgery is "[a] false or altered document made to look genuine by someone with the intent to deceive.” Black's Law Dictionary 766 (10th ed. 2014).

      . The sales contract lists a first loan of $444,720.00, and a second loan valued at $111,180.00—both secured by deeds of trust. The sales contract states that both deeds of trust to purchase the Property will have fixed rates. The settlement statement Ms. Mitchell signed at the closing lists a first mortgage with a 6.2% fixed interest rate and a second mortgage with a 9.125% interest rate. At oral argument before this Court, Ms. Mitchell’s counsel said that the second deed of trust was executed, but that it has never been enforced.
      The record does not contain a copy of a second deed of trust or note. All references in this opinion to the "deed of trust" or "note” refer to the first deed of trust and note which are at issue in this case.

      . The text of this letter read in pertinent part:
      After review of your loan and our acknowledgement of:
      ERRORS AND OMISSIONS IN PROCESSING YOUR LOANS, REVIEW OF YOUR SALES CONTRACT, FIRST COMMUNITY MORTGAGE UNIFORM RESIDENTIAL LOAN APPLICATION, HUD-1 AND YOUR INTENTION TO OBTAIN A CONVENTIONAL 30 YEAR FIXED RATE LOAN.
      WE HAVE CANCELLED THIS TRANSACTION, THE MORTGAGE, LIEN OF SECURITY INTEREST IS ALSO CANCELLED AND WE HAVE ADJUSTED THE NEW TRANSACTION TO REFLECT THE PROPER LOAN REQUIREMENTS.
      Within 20 calendar days we must take the steps necessary to reflect that fact that the mortgage/lien/security interest on your home has been cancelled. You may keep any money or property we have given you until we have done the things we mentioned above, but you must then offer to return the money or property. If it is impractical or unfair for you to return the property, you must offer its reasonable value. You may offer to return the property at your home or at the location of the property. Money must be returned at the address below. If we do not take possession of the money or property within 20 calendar days of your offer, you ma[]y keep it without further obligation.

      . On December 1, 2005, Fremont transferred the servicing of the loan to HomeEq Servicing Corporation ("HomeEq”). In 2008, Fremont filed for bankruptcy, and it sold some of its assets to CapitalSource. On September 1, 2010, HomeEq transferred the loan’s servicing rights to Ocwen Loan Servicing, LLC ("Ocwen”), and Ocwen became the loan’s servicing agent. On June 3, 2013, Mortgage Electronic Registration Systems ("MERS”), as nominee for Fremont, assigned the deed of trust to a securitized trust in which U.S. Bank National Association ("U.S. Bank”) served as Trustee under a Pooling and Servicing Agreement as of November 1, 2005 ("Mastr Asset-Backed Securities Trust 2005-FRE1 Mortgage Pass-Through Certificates, Series 2005-FRE1”).
      The record is equivocal as to whether any loan servicer actually charged an interest rate higher than 6.2% (and Ms. Mitchell does not contend that any entity did, either in her circuit court motions or in her brief before this court). What is clear is that the current servicing agent, Ocwen, sent Ms. Mitchell a letter on June 24, 2015, describing the loan as an "Adjustable-Rate Mortgage” and stating that the interest rate could be changed every six months. Thus, in 2015, Ocwen treated the loan as if it had an adjustable rate. Apparently, something was lost in translation between what Fremont had agreed to in its letters to Ms. Mitchell and the multiple servicers and noteholders along the way.

      . The deed of trust was attached an exhibit to the order to docket and bears a stamp indicating that it was filed in the land records of Prince George's County on July 14, 2005. Given that "[a] deed of trust is a security device” that “secures repayment of the loan[,]” Springhill Lake Investors LP v. Prince George’s Cnty., 114 Md.App. 420, 428, 690 A.2d 535 (1997), the lender typically files the deed of trust in the land records to protect its security interest. There is, however, no information in the record on appeal verifying who filed the deed of trust in this case in 2005.

      . For comparison, this opinion contains an appendix with the first pages of (1) the original note and deed of trust that Ms. Mitchell executed bearing the "VOID” stamps, handwritten note and cancellation stamp, and (2) the "REDACTED” note and deed of trust filed with the order to docket. These documents raise numerous questions, including:
      Who filed the deed of trust in the land records on July 14, 2005?
      Because Fremont sent Ms. Mitchell a note and deed of trust with the "Cancelled and satisfied and full” stamp and "VOID” marks the day after the deed of trust was filed in the land records, why doesn't the copy of the deed of trust sent to Ms. Mitchell show the stamp indicating that the same document had been filed in the land records?
      Were the “REDACTED” marks placed on the deed of trust when it was filed in the land records in 2005, or were they were added to the document when the order to docket was filed in 2015?

      . This affidavit also states that U.S. Bank is the owner of the note and that Ocwen is the servicer for US Bank.

      . A provision in the Real Property Article governing foreclosure procedures also requires that a copy of the debt instrument and a certified copy of the note instrument must be filed with the order to docket. Maryland Code (1974, 2015 Repl. Vol.), Real Property Article (“RP”), § 7-105.1.

      . In 2007, the year of the Neal case, former Maryland Rule 14-204 governed both commencement of a foreclosure action and the pleadings and exhibits that must be filed in order to institute a foreclosure action. See Maryland Rule 14-204 (2007 Repl. Vol.). In 2009, Maryland Rule 14-204 was divided into two Rules: Rule 14-204 and Rule 14-207. Former Rule 14—204 continued to govern the institution of an action, i.e., the appropriate persons who may institute a foreclosure, whereas Rule 14—207 governed the required pleadings and exhibits that one must file to institute a foreclosure action, e.g., the order to docket and copies of the note and deed of trust. See Maryland Rules 14-204 and 14-207 (2010 Repl. Vol.). The two Rules retain this structure today. See Maryland Rules 14-204 and 14-207.

      . We note that the facts of this case begin in 2005 and that there have been several different secured parties, trustees, and substitute trustees— as well as counsel representing these entities—along the way. We cannot tell from this record just who knew what and when, or what person committed a potentially fraudulent act. It is, however, pellucid that the materially altered deed of trust should not have been filed in the land records for Prince George’s County, nor should the materially altered note and deed of trust have been passed off as "true and accurate copies” in the order to docket foreclosure.

      . We observe that "we generally liberally construe pleadings filed by pro se litigants[.]’’ Simms v. Shearin, 221 Md.App. 460, 480, 109 A.3d 1215 (2015).

      . We do not fault the circuit court because the significance of the alterations in the documents is not immediately obvious. Only when the documents are placed next to each other and compared can one observe how the material alterations unfold like a Magic Eye stereo-gram.