5076

VETOES

of the association provide for the assessment and provide
that an assessment is a lien. The statement of the lien
must be recorded in the land records of the appropriate
county within two years after the assessment is due and the
lien is effective from that recordation. The statement must
give the name of the owner, the address of the house, the
amount due and the length of time the assessment is due.
The statement must be signed and verified by an officer of
the association. The lien may be enforced and foreclosed in
the same manner as foreclosure of a mortgage or deed of
trust that contains a power of sale or an assent to a
decree. The action to foreclose must be brought within
three years following recordation of the statement, but
cannot be initiated until after ten days' written notice has
been given to the homeowner by registered mail with return
receipt requested.

First, in light of the decisions of the Court of
Appeals in Barry Properties v. Fick Brothers, 277 Md. 15
(1976) and in Residential Industrial Loan Co. v. Weinberg,
279 Md. 483 (1977), cert. denied, Frederick Contractors,
Inc. v. Metropolitan Federal Savings and Loan Ass'n of
Bethesda, 434 U.S. 876 (1977), a serious question is raised
as to whether the bill's procedure for the creation of a
lien on the homeower's property is consistent with the
requirements of procedural due process under the Fourteenth
Amendment of the federal constitution and Article 24 of the
Maryland Declaration of Rights.

Several issues are presented when analyzing a due
process question. First, in order for the requirement of
due process to be applicable, there must be "state action".
Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).
Secondly, the state action must result in a deprivation of a
property interest. Fuentes v. Shevin, 407 U.S. 67 (1972).
Finally, if state action deprives a person of a property
interest, it must be determined what procedural due process
is constitutionally required. Mitchell v. W. T. Grant Co.,
416 U.S. 600 (1974).

The decision in Barry Properties suggests that the
prejudgment remedy of Senate Bill 473, like the mechanic's
lien, involves state action. Barry Properties v. Fick
Brothers, supra, 277 Md. at 22-23 ("[M]echancis' liens
involve state action since they are created, regulated and
enforced by the State.") It is arguable that there is no
significant difference in the degree or type of state
participation in the proceedings of Senate Bill 473 as
compared with the statutes permitting prejudgment creditor
seizures that the U.S. Supreme Court has voided on due
process grounds. See North Georgia Finishing, Inc. v.
Di-Chem, Inc., 419 U.S. 601 (1975) (garnishment); Mitchell
v. W. T. Grant Co., supra (sequestration under a vendor's
lien); Fuentes v. Shevin, supra (replevin); Sniadach v.