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Editorial Advisory Board: Affidavit judgments, due process, and emergency proceedings

While we recognize the tremendous challenges facing the Maryland courts during the pandemic and court closure, we raise a troubling issue regarding some district courts that are issuing affidavit judgments during the court closure.

Chief Judge Mary Ellen Barbera’s administrative order notes that only emergency matters will be handled during the courts’ closures and all other matters would be postponed or suspended until the courts reopen.

This makes sense, given the significant strain on the courts’ personnel and systems, that critical matters like domestic violence, guardianship, criminal proceedings, and the like would need to be heard during the courts’ closure.

What is far less clear is why affidavit judgments, which are a debt collection matter that is a step along the process to permitting the creditor to garnish wages and seize assets, would be considered an emergency.  It also doesn’t gel with the numerous actions taken by the governor and the courts to protect suffering Marylanders from eviction, foreclosure, tax sale and garnishment of their stimulus funds.

What is more troubling is the denial of due process. According to Maryland Rule 3-307(e), an individual has a right to appear at their scheduled affidavit judgment hearing and offer a defense, even if he or she failed to file a Notice of Intent to Defend.

With the courts’ closure, these hearings have been canceled and defendants are prohibited from entering the court buildings. They are provided no opportunity to defend themselves. Granting affidavit judgments without the defendant’s opportunity to be heard violates both due process and the Maryland Rules.

Additionally, in Baltimore city, attorneys have been advised by the district court administrative judge that filings should be held unless they are an emergency.  As a result, both the defendants and their attorneys are left defenseless.

Until the courts reopen and defendants are permitted the opportunity to defend themselves, affidavit judgments should be placed on hold in all jurisdictions, and any judgments issued since the courts closed should be vacated for lack of due process and violation of Maryland Rules.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Leigh Goodmark

Michael Hayes

James Haynes

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

Vanessa Vescio (on leave)

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.

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