The following letter is in reference to the “Confessions About Confessed Judgments” article that appeared in the November/December 2012 edition of the Maryland Bar Journal. The comments and opinions expressed herein belong to the author and are not necessarily those of the Circuit Court for Harford County or the Maryland State Bar Association.
I believe that a small portion of [the article] was not completely accurate. More specifically, the section on “Entry of a Confessed Judgment” states that if the pleadings are in correct order, the Clerk of Court will enter a judgment in favor of the plaintiff. It goes on to cite Maryland case law, which states that confessed judgment is not a judicial act, but a pro forma entry of a judgment by a clerk.
The procedures for the entry of a confessed judgment changed dramatically after July 1, 2010, when Rule 2-611 was amended by the Court of Appeals. The rule still permits the filing of a confessed judgment case and in subsection (a) of the Rule sets forth how they should be filed. The Court of Appeals added subsection (b) to the Rule, which provides as follows:
(b) Action by court. If the court determines that (1) the complaint complies with the requirements of section (a) of this Rule and (2) the pleadings and papers demonstrate a factual and legal basis for entitlement to a confessed judgment, the court shall direct the clerk to enter the judgment. Otherwise, it shall dismiss the complaint.
It is my belief that the new portion of the Rule changes the procedure so that the clerk can no longer enter a judgment, and that the judgment can only be entered upon order of court after reviewed by a judge of the pleadings that have been filed.
I also believe that this change in the procedure for entering a confessed judgment has a significant impact on how the court will look on post-judgment motions for modification. First, since court action is necessary for the judgment to be entered, it is no longer a pro forma action by the clerk, but is now a judicial act.
Second, if it is assumed that confessed judgments are now judgments entered under the discretion of the court, an argument can certainly be made that modifications to those judgments should be governed by the provisions of Rule 3-534 and Rule 3-535, which generally control motions to alter or amend court judgments. While an argument can certainly be made that those rules were applicable anyway, it is my opinion, they clearly will be controlling the way the Rule is worded at this point in time.
There is also a question in my mind as to whether the fact that the judgment will now be entered by the court instead of the clerk will have any effect on the current case law, which provides that a confessed judgment is not a final judgment until it is served on the defendant.
I am not aware of any appellate cases that have dealt with these and other questions that may be raised by the modification to the Rule as set forth above, so I guess we will have to wait for guidance on the issues I have raised plus whatever other issues the creative legal minds of Maryland can come up with.