Steven Williams v. JP Morgan Mortgage Acquisition ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0792n.06
No. 10-1481 FILED
Nov 28, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
STEVEN WILLIAMS and
TANYA WILLIAMS,
Plaintiffs-Appellants,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
JP MORGAN MORTGAGE THE EASTERN DISTRICT OF
ACQUISITION CORP. and MICHIGAN
HOMESALES, INC.,
Defendants-Appellees.
Before: COLE and ROGERS, Circuit Judges; SARGUS, District Judge.*
PER CURIAM. Upon consideration of this appeal, the Court is of the view that the
well-reasoned decision rendered by the District Court adequately addresses all issues raised herein.
Therefore, this Court adopts as its decision the Opinion and Order issued by the District Court on
March 19, 2010, and affirms the judgment of the District Court.1
*
The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of Ohio, sitting
by designation.
1
Following oral argument, by letter dated August 17, 2011, Appellants referred the panel’s attention to several
recent Michigan Court of Appeals decisions of potential relevance to this appeal, including Richard v. Schneiderman
& Sherman, P.C., No. 297353, 2011 W L 3524302 (Mich. Ct. App. Aug. 11, 2011). However, the specific decision in
Richard cited by Appellants was subsequently vacated by the Court of Appeals and replaced with a new decision dated
August 25, 2011. See Richard v. Schneiderman & Sherman, P.C., No. 297353, 2011 W L 3760862 (Mich. Ct. App. Aug.
25, 2011). The new decision is identical to the original except that the Court of Appeals replaced the final paragraph
and footnote two with two additional paragraphs that clarify and expound upon footnote two. These paragraphs read
as follows:
However, given the unique nature of foreclosure by advertisement, there is long-standing caselaw that
limits the application of [Residential Funding Co., LLC v. Saurman, Nos. 290248, 291443, 2011 W L
1516819 (Mich. Ct. App. Apr. 21, 2011)]. First, our Supreme Court has held that a mortgagor must
challenge the validity of a foreclosure by advertisement promptly and without delay. See White v
Burkhardt, 338 Mich. 235, 239; 60 N.W.2d 925 (1953) (Claim too late where redemption period
expired prior to filing of complaint); Fox v Jacobs, 289 Mich. 619, 625; 286 N.W.2d 854 (1939)
(Twenty months after foreclosure sale too late). In addition, in Hogan v Hester Investment Co, 257
Mich. 627; 241 N.W. 881 (1932), our Supreme Court held that the validity of a foreclosure by
advertisement may not be challenged after the property is sold to a bona fide purchaser. Thus,
Saurman does not apply in an action to recover title or possession of property if the mortgagor failed
to challenge the foreclosure by advertisement during the redemption period or any proceedings seeking
an order of eviction, or if the foreclosed property has been sold to a bona fide purchaser.
Here, because plaintiff filed his claim during the redemption period and there is no evidence of a bona
fide purchaser, he is entitled to relief under Saurman. Accordingly, we reverse the trial court's grant
of summary disposition, vacate the foreclosure proceeding, and remand for further proceedings
consistent with this opinion. W e do not retain jurisdiction.
Id. Because Appellants failed to challenge the foreclosure by advertisement within the redemption period, this Court
declines to consider the precedent cited in Appellant’s letter of August 17, 2011.