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Attorneys in foreclosure case return to court

The Baltimore Sun

Lawyers for Kwaku Atta Poku, a Columbia taxi owner who lost his townhouse to foreclosure and eviction through no fault of his own, are back in court seeking help for him.

They asked the Maryland Court of Appeals to rule whether it was right for the Court of Special Appeals to dismiss Atta Poku's case on a technical issue rather than for substance. In addition, they want the Howard County Circuit Court to award Atta Poku the proceeds from the sale of his home as well as punitive damages.

Meanwhile, Atta Poku and his wife and three young children are facing the possible loss of their rented townhouse when the lease expires late next month. The friend who obtained it for them because of Atta Poku's ruined credit rating fears that his own credit might be endangered if the situation goes on too long. Also, the two-bedroom townhouse is too small for the family of five.

"I'm not allowed to be there with that many children. I've run out of money," said Atta Poku, 55, adding that the family has tried to keep quiet to avoid more trouble. When they were evicted last year, he took his wife, Beatrice, and children, Kofi, 4, Afua, 3, and Amma, 1, to area hotels until they found new lodgings.

"If I'm put out, that means I don't have the money to take them anywhere," he said. "I'm still struggling to get the [taxi] business together and to get justice."

He said he doesn't know where he would go.

Since the family's situation became public with an article in The Sun on June 7, he has received sympathetic phone calls and comments from a number of people, he said, but his debts are well over $100,000, and his financial situation is not easily remedied.

"Every day, my child [Kofi] says 'I want to go home,'" Atta Poku said. "When he makes a noise and you say 'Stop,' he says, 'I want to go to the other house. I want to go to my home.' That gets to me more.

"I'm worried about everything. I came here and I worked so hard. I never stopped working," he added. "I never wanted to be a burden on anybody."

Gov. Martin O'Malley and several state legislators have said that homeowners should have more notice and more time to defend themselves against foreclosure, and they hope to change state law next year. But that won't help the Atta Poku family.

Atta Poku is a Ghanaian immigrant and naturalized American citizen who built a small taxicab business in Columbia and bought a townhouse there in 2000. He refinanced the next year, but the original loan was never recorded as paid by Washington Mutual Inc., the refinancing firm.

Four years later, although he made every mortgage payment, Washington Mutual foreclosed and sold Atta Poku's house before he could mount an effective legal defense. He was charged four years of interest plus legal fees, although he insisted the loan was paid.

Atta Poku and his family were evicted in August last year, and last month the Maryland Court of Special Appeals dismissed his last attempt at redress. Maryland law allows foreclosure with just 15 days' notice and without proof that the homeowner was told of the legal action.

No one blamed Atta Poku for the foreclosure, but he was unable to prove in court that the loan was paid off because of mistakes by financial institutions and missing records.

His lawyers argue that since the bank that held his original mortgage merged in 2001 with Washington Mutual, the firm that he refinanced with, they controlled his mortgage money. Atta Poku never touched the settlement money and should not suffer, they say.

Attorneys Scott C. Borison of Frederick and Gerald M. Richman of Ellicott City petitioned the Court of Appeals, the state's highest court, to review the Court of Special Appeals ruling.

"We believe it's such an important question of law the court ought to look at the facts of it and think about it and issue a written opinion to guide lawyers," Richman said.

He noted that the request is discretionary for the court, which is not required to reply.

Borison said legal rules embroiled Atta Poku in a vicious cycle that left him virtually powerless to defend himself. Atta Poku asked a judge to stay the foreclosure pending his appeal, but his motion was denied without a hearing.

"His appeal was then dismissed based on the finding it was moot because he did not obtain a stay," Borison said.

The Court of Special Appeals said that since Atta Poku had not filed a cash bond high enough to protect the parties he was suing, he had not followed the law. Atta Poku said he did not have the money to file the bond. In addition, Borison said, the court decided "since he can't get the house back, there's nothing left to decide."

"This result is incompatible with basic notions of fairness and justice," Borison wrote to the Court of Appeals. He is asking the judges to decide several questions, including "whether a home can be foreclosed when the lender had exclusive control and possession of the funds to pay off the lien?"

In the second action, called a third-party complaint, the lawyers argue in Howard County Circuit Court that Atta Poku never had possession of the settlement money and should not be held responsible.

The lawsuit claims that Chicago-based Washington Mutual, Houston-based Stewart Title Guaranty Co. and the now-defunct Advance Settlement Agency Inc. all collected fees for the refinancing and acted in "a negligent, careless manner."

"If the 2000 loan was not paid off, the failure to pay off the loan was the fault of one or all of the Defendants in this action," the filing said, adding that Atta Poku should get the proceeds from the foreclosure sale, plus whatever punitive damages a court decides are appropriate.

Shane A. Winn, a spokesman for Washington Mutual, refused to comment on the latest filings. A spokeswoman for Stewart Guaranty Title had no immediate comment.

After the May decision, Winn said, "the foreclosure wasn't our fault, and the courts agreed with us." He suggested that Advance Title might have been at fault.

Dwayne E. Pope, owner of Advance, is serving time in a federal prison for stealing more than $1.6 million in settlement funds in 2002 and 2003 - after Atta Poku's refinancing. He has not been charged with or accused of any wrongdoing in the Atta Poku case.


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