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Out of townhouse, but not by choice

The Baltimore Sun

Kwaku Atta Poku had seemed to find his own American dream.

After emigrating from Ghana in 1992, he built a taxi business from scratch. He bought a townhouse in the quintessentially American suburb of Columbia, dutifully making each monthly mortgage payment - and even paid a bit more in some months.

But he has lost the house to foreclosure and most of his business and is facing thousands of dollars of debt through no fault of his own. And his attorneys say other Maryland homeowners who refinanced in the frenzy of real estate activity during the first half of the decade could face similar legal nightmares.

No one - not even the mortgage company that took his house - blames Atta Poku for the foreclosure. His lawyers say his original mortgage was paid off when he refinanced the note, but he couldn't prove it because of mistakes by financial institutions, including their loss of key documents.

"I don't even know how I make it every day. I cry every day," the 55-year-old said, sitting at a tattered card table piled high with copies of legal and financial documents in a townhouse rented under a friend's name. His two remaining AAAA Star cabs sit idle outside. His cell phone, to which all his business calls are routed, is silent.

His mortgage firm took his house because Maryland law makes it easy and quick, his attorneys said.

"It's absolutely not his error," said Gerald M. Richman, an Ellicott City attorney who represents Atta Poku, so far without a fee. "He didn't do anything wrong. It's an outrage what happened to him, but it's a quirk of the system."

Shane Winn, a spokesman for Washington Mutual Inc., one of the nation's largest home lenders and the mortgage company that took Atta Poku's house, said that his firm "never received the proceeds from the closing agent to pay off the prior loan," and that Atta Poku couldn't prove in court that the payment was made.

Winn suggested that the title company might have been to blame but said it was Atta Poku's responsibility to investigate that. In Maryland, title companies handle the payoff of mortgages.

"The outcome in this case is most disturbing and regrettable," Winn said. "The foreclosure wasn't our fault, and the courts agree with us."

Atta Poku's lawyers believe that the mortgage company got its money, but the lost records prevent him from proving it, despite a photocopy of a settlement check produced by the title company's bank. There is no copy of the back of the check, however, and the original is missing.

Dwayne E. Pope, owner of Advance Settlement Agency Inc., the now-defunct title company that handled Atta Poku's refinancing, later pleaded guilty to fraud charges in a Pennsylvania federal court for embezzling more than $1.6 million in escrow settlement funds, according to court records. He's serving a 30-month sentence at the Federal Correctional Institution at Fairton, N.J., and is due for release in November. He's supposed to make restitution to Stewart Title Guarantee Co., the firm he wrote insurance for - but not to any homeowners.

Pope's conviction covered crimes in 2002 and 2003 - at least a year after Atta Poku's settlement - and there is no indication that he did anything illegal in Atta Poku's case. Pope has not been charged with any crime connected with Atta Poku's case.

The worst part, from Atta Poku's perspective, is that even though his lawyers say his troubles appear to be either a title company or mortgage company error, a series of Maryland courts - ending with a Court of Special Appeals ruling in May - have declared the foreclosure legal. Those rulings now can be used to combat any attempt by Atta Poku to sue to recover damages.

"All I want is people to know the truth about this case," Atta Poku said. "I lost my property. I lost my life."

He testified at a state Senate hearing this year on a bill to require at least 30 days' notice and posting of the property before any foreclosure sale. The legislation failed, but it is expected to be reintroduced next year.

Maryland law puts homeowners at a severe disadvantage in foreclosure cases, said Phillip Robinson, deputy executive director of Civil Justice, a public service law firm in Baltimore.

Unlike renters in disputes with landlords, homeowners are not guaranteed a court hearing in disputes with mortgage companies, he said. And the law doesn't require receipt of notice about a foreclosure - something required in even the smallest of small-claims lawsuits.

"If you want to sue me for not paying back $20 that you loaned me, the District Court judge handling that case could not rule in your favor unless you could prove I received notice of the lawsuit," Robinson said. "In a foreclosure, you could sue me and say notice was sent but not received and get my house. Maryland's foreclosure laws are just as antiquated as its ground-rent laws."

Scott C. Borison, another of Atta Poku's attorneys and a specialist in foreclosures, said: "It's unbelievable. It's really horrible. It wasn't like he refinanced with someone else. ... He refinanced with the same people. They had the money in their hands. They should bear the risk of loss."

Borison said dozens of mortgage and title companies have gone out of business since the real estate boom ended, and some records have disappeared with them. He said it's easier for mortgage companies to go after homeowners than to pursue the title company, which in this case, is defunct.

"I don't think the average person has any idea when they start receiving this stuff what it means," Borison said. "Most people have no idea how quickly it can happen, and since there are no court notices being sent, you're going to see a lot of foreclosures coming up."

Atta Poku has records of every mortgage payment he made, but a bank could not locate the original check issued to pay off his first mortgage, just a photocopy of the front of the $96,599.74 check made out to Advance Settlement Agency. But without the back of the check showing it was canceled and accepted, it was useless in court, Richman said.

In addition, Alvin E. Friedman and Kenneth J. MacFayden, the Baltimore lawyers who foreclosed on Atta Poku's house, filed an affidavit in his case on behalf of Washington Mutual, a large national savings and loan, saying that it had lost the note: "The original Deed of Trust Note has been lost and no copy is available at this moment."

Atta Poku's troubles began not long after he bought a townhouse in west Columbia in 2000. It was an important domestic achievement, the balance to his small, but growing Howard County-based taxi business and a concrete sign of how far he had come.

He built that business the hard way, learning to repair his cabs by reading manuals, while he worked day and night to build up his business. He advertised by handing out fliers.

In May 2001, he refinanced his home after receiving a solicitation offering lower interest rates from Washington Mutual. He refinanced several more times in later years.

Washington Mutual had just acquired Bank United Corp., Atta Poku's original mortgage holder, so that first refinancing seemed a simple transaction, with the new firm merely transferring money from one hand to another.

Borison and Richman said Washington Mutual did not record the original mortgage as paid in full.

Atta Poku said he had no clue of any problems until early in 2005 when investors began visiting his house, saying that they saw in newspapers that it would soon be sold at auction.

On Feb. 10, 2005, he said he received a letter from Friedman and MacFayden saying his mortgage was in default and foreclosure would follow.

The required documents were filed in Howard County Circuit Court a week later and the sale occurred March 19, 2005. An investor, 8 Metree LLC, bought the townhouse for $200,000, and it has been sold again.

Atta Poku said friends referred him to a lawyer in Washington, Later, he found out the attorney was not licensed to practice in Maryland, and by the time he contacted Richman, the house had been sold.

The family continued to live there until the eviction in late August last year, running up a $20,000 rental bill.

Atta Poku said he expected the mess to be put right in court, but on Aug. 3, 2006, Circuit Judge Dennis M. Sweeney upheld the foreclosure sale. He later denied a motion to stay his ruling until the case was appealed. Sweeney had no comment on the case.

Atta Poku's taxi communications setup - the lifeblood of his business - was severely disrupted by the eviction, he said, cutting business and eventually forcing him to sell several of his cabs.

He owes $91,136.35 on the old mortgage, plus the rental money, plus thousands more he's borrowed from friends to stay afloat. He said he hasn't totaled his debts.

Atta Poku pays $1,460 a month for house rent, $357 a month for a tiny business office and $500 a month on one of his two remaining vehicles, he said.

He and his wife, Beatrice, 39, who were married in 2002, have no health insurance, he said. Their children, Kofi, 4, Afua, 3, and Amma, 1, are insured through a state program, he said.

"I just pray that the truth will come out," he said.

He traveled to Annapolis in February to testify in favor of a bill sponsored by state Sen. Catherine E. Pugh, a Baltimore Democrat, after she encountered a similar financial horror story in her district, where an elderly homeowner died and before his children could go through the mail, the house was sold for back taxes.

The bill died without a vote, but Pugh said a new bill will be filed next year. "I want longer notification and the ability of consumers to rectify their situation in a reasonable period of time," she said.

In his Senate testimony, Atta Poku told of being born and raised in rural Ghana. His mother sent him to a school run by Catholic missionaries, but after graduating from high school and attending college, he decided to seek a better life in the United States.

He came to the Bronx, N.Y., in 1992, leaving a daughter behind, and worked low-wage jobs while attending computer school at night.

In 1994, he moved to Columbia, and like some other Ghanaians, began driving cabs. He later formed a cab company, then called Mini-Star, with a single car.

He brought his daughter, Nana, to the United States in 2000, and he bought the house in Columbia, getting a mortgage for $97,500.

Atta Poku became a citizen in February 2005, shortly before the foreclosure.

Now, his future is clouded at best.

The Court of Special Appeals dismissed his appeal of Sweeney's ruling because he did not file a "supersedeas bond as required by Maryland law" to insure against loss to the opposing party. Since he has no money, he couldn't afford to do that.

Richman said the court essentially agreed that because the house has been sold and resold, the issue of ownership is moot.

And Borison said that if Atta Poku files suit for damages, the defense will likely be that Maryland courts have ruled that the foreclosure was legal.

"I paid. I paid," Atta Poku said, despairing. "I don't have the money to pay anybody."

Tips to avoid foreclosure

Do not delay in responding to any default notices.

Immediately contact the lender by certified mail to establish that a mistake has been made.

Get advice from a housing counselor and talk to a lawyer.

[Source: Phillip Robinson, deputy executive director of Civil Justice, a public service law firm in Baltimore]

The loss of a home

A timeline of events in Kwaku Atta Poku's homeownership history:

October 2000: Atta Poku buys his home and obtains a mortgage from Bank United Corp.

March 13, 2001: Bank United is merged into Washington Mutual

May,25, 2001: Atta Poku refinances the home with Washington Mutual

May 31, 2001:Mortgage payoff check is mailed to Bank United, according to Atta Poku's attorneys

Feb. 10, 2005: Letter arrives notifying Atta Poku of pending foreclosure

Feb. 17, 2005: Foreclosure is recorded in Howard County Circuit Court

March 19, 2005: House is put up for sale March 29, 2005: House is sold to an investor for $200,000

Aug. 10, 2006: Howard County Circuit Judge Dennis M. Sweeney upholds the foreclosure

Aug. 28, 2006: The Atta Poku family is evicted

May 8, 2007: The Maryland Court of Special Appeals rejects Atta Poku's appeal

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