Attorney Alan Mensh Achieves Landmark Appeal Victory in Lead Poisoning Case
June 9, 2021
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Attorney Alan J. Mensh, a senior partner at Ashcraft & Gerel, has achieved a game-changing appeal victory in a case (Ashley Hector, et al. v. Bank of New York Mellon) involving lead poisoning at a foreclosed rental property and two injured children. To date, he has written numerous legal briefs and delivered oral arguments in more than 30 appellate cases, which has resulted in several important precedents being set in how cases are reviewed. Through his work in Ashley Hector, et al. v. Bank of New York Mellon, Attorney Mensh has again set precedents in his legal practice areas.

About the Hectors’ Case

When they were children, Ashley and Alyaa Hector lived in a rowhouse in Baltimore City, Maryland. Unfortunately, their parents soon discovered that the rental property was contaminated with lead-based paint. Blood tests taken about a year after the Hectors moved into the rowhouse revealed that they had an alarmingly high concentration of lead in their blood. The family moved out of the rowhouse that spring in 2002, but the damage had already been done: Ashley and Alyaa suffered severe brain injuries as a result of their toxic exposure.

When the Hectors filed suit through their father, they did so against the Bank of New York, now known as the Bank of New York Mellon (BNYM). The reasoning was that the family’s landlord had taken out a mortgage on the property. That mortgage was bundled with many others to become part of a residential mortgage-backed securitization trust. BNYM was the trustee of this trust.

The father of the Hectors discovered their landlord had defaulted on the mortgage payments, and the rowhouse in which they lived was under foreclosure. BNYM was the highest bidder at the auction and purchased the property. The foreclosure sale was finalized on February 5, 2002.

When the Hectors took legal action in 2016, they did so against BNYM in its individual capacity instead of its fiduciary (or trustee) capacity. The Hectors alleged that BNYM was negligent and should have taken care to ensure that lead-based paint and/or deteriorated paint and Housing Code violations were not present on the property. The case was initially thrown out: The circuit court granted summary judgment to BNYM, stating that the distinction between failing in its individual capacity as opposed to in its fiduciary capacity was too important to ignore. The Court of Special Appeals then affirmed the decision of the lower court.

Attorney Mensh represented the Hectors in their attempt to appeal this ruling. For over 20 years, he has represented clients in lead poisoning cases in which children were injured on rental properties. He has become known for his skill in handling these cases and has won six- and seven-figure verdicts and settlements for his clients. Therefore, he was uniquely qualified to assist the Hectors with their appeal.


Attorney Mensh Sets Precedents, Time and Again

When the Court of Special Appeals took up the Hectors’ appeal, it agreed that BNYM could theoretically be held liable in its individual capacity for the tort in question. It also ruled, however, that the Hectors did not supply enough evidence to prove that BNYM was negligent. Thus, it ultimately agreed with the trial court.

Attorney Mensh and the Hectors pushed on, and the Court of Appeals of Maryland took up the appeal for review. In a major victory for the Hectors, the court ruled that while it agreed with the Court of Special Appeals that BNYM could be held liable in its individual capacity, it also determined that the Hectors had, indeed, provided sufficient evidence to prove negligence on the part of BNYM. This means that the case is set to return to trial.

This is a landmark turn of events that has set several precedents in how cases involving estates and trusts will be reviewed in Maryland:

  • Individual trustee liability: A trustee may be held liable in its individual capacity for acts and/or omissions taken during trust administration.
  • Personal fault: A plaintiff must prove a trustee was personally at fault in order to sue it in its individual capacity.
  • Statute or Ordinance Rule: A trustee may be held personally liable if it failed to comply with a duty that a statute or ordinance imposed upon it. Further, it cannot absolve itself of this duty by delegating the duty to a third party, such as a landlord. This rule also mandates that a plaintiff must show (a) the statute or ordinance that has been violated was created to protect a particular class of persons to which the plaintiff belongs and (b) the violation led to injury to the plaintiff.

Definition of “owner”: The Court of Appeals held that an “owner” under the Housing Code could be a bank that purchases a property at a foreclosure auction. The responsibilities under the Housing Code placed upon an “owner” began from the time the property was bought at auction, not later when a motion for ratification of sale or motion for possession was granted or the deed was recorded.

Our team at Ashcraft & Gerel is very proud to work with Attorney Mensh, and we congratulate him on this difficult job well done!