A lawyer for Kwaku Atta Poku, the Columbia cab owner from Ghana who lost his house to foreclosure although he had made every mortgage payment, tried yesterday to convince skeptical Maryland Court of Appeals judges that they can grant him a legal way to recoup his financial losses without undermining the state's real estate system.
Attorney Scott C. Borison said his task was to show the judges on the state's highest court that Atta Poku had been placed in a "Kafkaesque" situation through no fault of his own, and that they could open a way for him to pursue a negligence claim.
Under current law, he said, a foreclosure can go through in 15 days, although it could take 30 days to get a ruling to stop it. If the court decides in Atta Poku's favor, it could change the rules governing foreclosures in Maryland.
Kenneth MacFayden, the attorney arguing for Washington Mutual Inc., the mortgage firm that took Atta Poku's townhouse and resold it more than two years ago, suggested such a ruling would reverse a legal foreclosure and affect an owner's ability to sell a property with a foreclosure in its history.
"How will I ever be able to transfer title and get title insurance again?" MacFayden asked the judges.
"What do I do about the fact that the property was sold? What do I do?" Judge Alan M. Wilner asked Borison.
Borison later agreed that, "the sale has occurred. The house is gone. There's nothing to get back."
Borison said he was trying to allow Atta Poku a way to recoup his financial losses - a dim prospect if the foreclosure is judged legal.
"My claim is real simple. Mr. Atta Poku went to these people to refinance. He didn't take any money out of the transaction," Borison said, noting that Washington Mutual or its sister companies held the original mortgage and also did the refinancing.
"They were taking money from one pocket and putting it in another," he said.
No one representing Washington Mutual has accused Atta Poku of causing the foreclosure. Shane Winn, the company's spokesman, has said Washington Mutual never received the settlement check satisfying the first mortgage after the refinancing. Atta Poku could not prove they received it because several key documents, including the settlement check itself, were lost by financial institutions.
Judge Dale R. Cathell noted another difficult aspect of the case.
"You're asking us to do something we haven't done before," he told Borison.
Later Cathell said, "I don't mean to say there's not been a wrong done," he said. "How is it corrected? I just don't know how to do it. I can't for the life of me understand how do you ratify a sale, and not ratify a sale?"
Judge Irma S. Raker asked MacFayden: "How could Mr. Atta Poku have avoided all this once this train started moving?"
MacFayden said Atta Poku could have sought an injunction to stop the foreclosure, and filed lawsuits against the settlement company, its agent, and the bank involved. MacFayden said he suspects the money was embezzled. But Borison said Atta Poku didn't get a lawyer licensed to practice in Maryland until after the foreclosure and the sale - a period of a few weeks.
Atta Poku sat in the court's front row, watching as the opposing lawyers answered questions from the seven red-robed judges.
After the nearly one-hour hearing in Annapolis, he said he had expected to hear more about the human side of his predicament.
"I'm just hoping all these technicalities will be resolved," he said. "If the law keeps all these technicalities - then justice will be stampeded."
After the hearing, J. Preston Turner, a Towson lawyer also representing the mortgage company, approached Atta Poku and offered to discuss the possibility of a settlement. Borison said he's more likely to wait for the high court's decision.