John C Tidwell v. Bayview Loan Servicing LLC ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
JOHN C. TIDWELL and ANITA TIDWELL, UNPUBLISHED
January 15, 2015
Plaintiffs-Appellants,
v No. 318027
Wayne Circuit Court
BAYVIEW LOAN SERVICING, LLC, LC No. 13-006183-CH
Defendant-Appellee.
Before: FORT HOOD, P.J., and HOEKSTRA and O’CONNELL, JJ.
PER CURIAM.
In this action to quiet title following a foreclosure by advertisement, plaintiffs appeal as
of right the trial court’s order denying plaintiffs’ motion for a preliminary injunction and
granting summary disposition to defendant pursuant to MCR 2.116(I)(1). Because no material
question of fact remains regarding the validity of the foreclosure proceedings and plaintiffs lack
standing to challenge the foreclosure sale, we affirm.
This action arises out of the foreclosure of commercial property located in Detroit,
Michigan, which was mortgaged by John Tidwell to Worldwide Commercial Lending, LLC.
The mortgage was later assigned to defendant. John defaulted on the mortgage, and defendant
initiated a foreclosure by advertisement. Notice of the sheriff’s sale was published in The News
Herald and Press & Guide on July 22, 2012, July 29, 2012, August 5, 2012, and August 12,
2012. On August 2, 2012, Daniel DeHaven, a process server for Harold & Associates, posted
notice of the sheriff’s sale on the front steel roll-up door on the property, but plaintiffs and their
employees denied seeing a posting on the door on or after August 2, 2012. The sheriff’s sale was
held on August 23, 2012, at which time defendant placed the highest bid of $21,300. John owed
$336,672.02 to defendant at the time of the sale. John failed to redeem the property before the
redemption period expired on February 23, 2013.
Plaintiffs filed suit against defendant alleging, inter alia, that the foreclosure should be
set aside because they never received notice of the sheriff’s sale. The trial court found that
defendant had fulfilled the statutory notice requirements and that plaintiffs did not have standing
to pursue this lawsuit. Consequently, the trial court granted summary disposition in favor of
defendant under MCR 2.116(I)(1). Plaintiffs now appeal as of right.
On appeal, plaintiffs argue that a genuine issue of material fact remained regarding the
validity of the foreclosure proceedings. In particular, plaintiffs maintain that they did not have
notice of the sheriff’s sale. They also contend that the sale was “highly irregular” because they
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had a buyer willing to purchase the property through a short sale and, after the sheriff’s sale,
defendant sent plaintiffs a “payoff letter” on September 25, 2012, approving a short sale on the
property and agreeing to accept $60,969.05 as payoff of amounts owed. Given these purported
irregularities, plaintiffs also contend that the trial court erred in concluding they lacked standing
to challenge the foreclosure after the expiration of the redemption period.
On appeal, we review de novo a trial court’s decision to grant summary disposition
pursuant to MCR 2.116(I)(1). Sobiecki v Dep’t of Corrections, 271 Mich. App. 139, 141; 721
NW2d 229 (2006). Under this provision, the trial court may grant summary disposition sua
sponte, “[i]f the pleadings show that a party is entitled to judgment as a matter of law, or if the
affidavits or other proofs show that there is no genuine issue of material fact, the court shall
render judgment without delay.” MCR 2.116(I)(1); Al-Maliki v LaGrant, 286 Mich. App. 483,
485; 781 NW2d 853 (2009). Here, the trial court considered affidavits and other proofs to
determine whether a genuine issue of material fact remained. There is a genuine issue of
material fact when reasonable minds could differ on an issue after viewing the record in the light
most favorable to the party against whom summary disposition is considered. See Allison v AEW
Capital Mgt, LLP, 481 Mich. 419, 425; 751 NW2d 8 (2008).
In Michigan, foreclosure by advertisement is controlled by statute. MCL 600.3201 et
seq.; Church & Church Inc v A-1 Carpentry, 281 Mich. App. 330, 339; 766 NW2d 30 (2008). By
statute, foreclosure by advertisement may occur “upon default being made in any condition of [a]
mortgage” provided that the mortgage “contains a power of sale,” MCL 600.3201, and all the
circumstances listed in MCL 600.3204 are present. The foreclosure process must follow the
procedures delineated in the statute. MCL 600.3201; Cheff v Edwards, 203 Mich. App. 557, 560;
513 NW2d 439 (1994). However, “defects or irregularities in a foreclosure proceeding result in
a foreclosure that is voidable, not void ab initio.” Kim v JPMorgan Chase Bank, NA, 493 Mich.
98, 115; 825 NW2d 329 (2012).
A mortgagor seeking to set aside a foreclosure by advertisement must establish: “(1)
fraud or irregularity in the foreclosure procedure; (2) prejudice to the mortgagor; and (3) a causal
relationship between the alleged fraud or irregularity and the alleged prejudice, i.e., that the
mortgagor would have been in a better position to preserve the property interest absent the fraud
or irregularity.” Diem v Sallie Mae Home Loans, Inc, __ Mich App __, __; __ NW2d __ (2014),
slip op at 4. Factors relevant to a determination of prejudice include whether the mortgagor was
misled into assuming that a sheriff’s sale had not occurred, whether the mortgagor quickly
pursued legal action after becoming aware of the claims presented in his complaint, and whether
the mortgagor attempted to redeem the property during the redemption period. Id. Setting aside
a foreclosure sale is not lightly done; rather, “[t]he Michigan Supreme Court has held that it
would require a strong case of fraud or irregularity, or some peculiar exigency, to warrant setting
a foreclosure sale aside.” Sweet Air Investment, Inc, v Kenney, 275 Mich. App. 492, 497; 739
NW2d 656 (2007) (citations omitted).
In this case, plaintiffs first contend that they lacked notice of the foreclosure by
advertisement. By statute, notice of the sheriff’s sale must be published as follows:
Notice that the mortgage will be foreclosed by a sale of the mortgaged premises,
or some part of them, shall be given by publishing the same for 4 successive
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weeks at least once in each week, in a newspaper published in the county where
the premises included in the mortgage and intended to be sold, or some part of
them, are situated. If no newspaper is published in the county, the notice shall be
published in a newspaper published in an adjacent county. In every case within
15 days after the first publication of the notice, a true copy shall be posted in a
conspicuous place upon any part of the premises described in the notice. [MCL
600.3208.]
Thus, notice of a sheriff’s sale includes two components: (1) notice must be published in a
newspaper at least once a week for four successive weeks, and (2) a copy of the notice published
in the newspaper must be “posted in a conspicuous place upon any part of the premises” that is
subject to the foreclosure. Id. The mortgagor is “not entitled to any greater notice than that
required by the statute . . . .” Cheff, 203 Mich. App. at 560. Accordingly, the mortgagor is not
entitled to actual notice, Jennings v Arnold, 272 Mich. 599, 603; 262 N.W. 419 (1935), or personal
notice, Cheff, 203 Mich. App. at 561. The party contending that the posting was insufficient to
comply with the statute bears the burden of proof. White v Burkhardt, 338 Mich. 235, 238-239;
60 NW2d 925 (1953). An affidavit may be obtained from the person posting notice, and when
such affidavit is recorded by the register of deeds, it constitutes presumptive evidence regarding
the time, place and manner of posting notice. See MCL 600.3256(1)(c); MCL 600.3264.
On the record presented, there was no genuine issue of material fact regarding whether
defendant provided adequate notice of the sheriff’s sale pursuant to MCL 600.3208. It is
undisputed that notice of the sale was published for four consecutive weeks in The News Herald
and Press & Guide. Likewise, DeHaven’s affidavit of posting and his testimony at the
evidentiary hearing established that DeHaven posted a printed copy of the notice in a
conspicuous place, i.e., the front steel roll-up door, on plaintiffs’ premises on August 2, 2012,
which was within 15 days after the first publication of the notice in the newspaper on July 22,
2012. Further, the affidavit of publication and affidavit of posting were recorded at the Wayne
County Register of Deeds on September 6, 2012. Thus, DeHaven’s affidavit is presumptive
evidence of the fact that he posted notice of the sale on the front roll-up door of plaintiffs’
premises on August 2, 2012. MCL 600.3256(1)(c); MCL 600.3264. Moreover, defendant
provided photographs of the notice posted on plaintiffs’ premises, which provided evidence—in
addition to plaintiffs’ admission that any notice posted on that particular door would be “very
conspicuous”—that the notice was displayed in a conspicuous location on the property, and
therefore, complied with MCL 600.3208.
Plaintiffs have attempted to counter defendant’s evidence of notice by asserting they did
not see the notice on the door. Despite these assertions, the evidence proffered by plaintiffs does
not put the content of the affidavit of posting or DeHaven’s testimony in dispute or even
contradict DeHaven’s affidavit and testimony. Instead, the affidavits and testimony provided by
John, Anita Tidwell (John’s wife), Carlos Fordson, and David Tidwell (plaintiffs’ son) asserting
that they did not personally observe a posting on the roll-up door only establish that they did not
have personal or actual notice of the sale. Indeed, on appeal, plaintiffs do not contest whether
defendant complied with MCL 600.3208; rather, the substance of their assertion is that they
lacked actual or personal knowledge of the sale. Personal or actual notice is, however, irrelevant
to whether defendant fulfilled the statutory requirements, and plaintiffs were entitled to no
greater notice than that required by statute. Cheff, 203 Mich. App. at 560-561; Jennings, 272
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Mich at 603. Thus, there was no genuine issue of material fact regarding whether defendant
complied with the statutory notice requirements, and plaintiffs are not entitled to set aside the
foreclosure based on their purported lack of personal notice.
To the extent plaintiffs contend that the alleged irregularities relating to the foreclosure,
i.e. the short sale negotiations and payoff letter, warrant setting aside the sale, their claim is also
without merit. As discussed, it is clear that defendant complied with the notice requirements
under MCL 600.3208, and plaintiffs do not otherwise assert that defendant failed to comply with
the statutory procedural requirements. Instead, plaintiffs contend that John, in a deal allegedly
brokered by defendant, executed a buy/sell agreement with a third party and that this short sale
was approved by defendant via letter on September 25, 2012, after the sheriff’s sale had been
held. In relevant part, the payoff letter in question stated:
This discount payoff offer is valid only if borrowers sign a copy of this letter . . .
and return it to my attention on or before 9/28/2012 end of business day.
If a foreclosure sale has been scheduled, funds must be received 48 hours
prior to the foreclosure sale or by the required date indicated above, whichever is
sooner.
Upon receipt by [defendant] of the discount payoff amount of $60.969.05
and a signed copy of this letter by the Borrower, [defendant] will execute a
Release and Discharge of the Deed of Trust/Mortgage, and, if necessary, will file
a withdrawal in connection with any legal action it has taken to collect this
obligation. No legal action will be halted until funds are received on or before
required date.
On appeal, plaintiffs fail to explain how short sale negotiations and even approval of such
a sale by defendant would render the foreclosure proceedings irregular or somehow prejudice
plaintiffs’ ability to preserve their interest in the property. Defendant was entitled to seek
foreclosure of the property, and plaintiffs offer no authority to suggest that defendant could not
also simultaneously discuss the possibility of a short sale or that, having entertained this
possibility, defendant could not then continue with the foreclosure by advertisement. That
defendant did not approve the short sale, if at all, until after the sheriff’s sale does not impact the
adequacy of the statutory notice provided, MCL 600.3408, or otherwise render the sheriff’s sale
irregular. Indeed, defendant was under no obligation to approve the short sale and was fully
within its statutory rights to foreclose on the property. See MCL 600.3204. Plaintiffs have not
made a strong case of fraud or irregularity, or some peculiar exigency, of the type necessary to
warrant setting a foreclosure sale aside. Sweet Air Investment, Inc, 275 Mich. App. at 497.
Moreover, even assuming some minor irregularity attendant to the letter, such irregularity
did not prejudice plaintiffs. In this regard, we find unpersuasive plaintiffs’ assertion that short
sale negotiations and/or the September 25 letter somehow misled plaintiffs about the occurrence
of the sheriff’s sale such that the sale should be set aside. Arguably, given that the letter was
sent after the sheriff’s sale, it could perhaps lead one to believe that such a sale had not yet
occurred. However, we again note that defendant provided the required statutory notice
pertaining to the foreclosure by advertisement, and the letter in question contains no assurances
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that a sheriff’s sale had not yet been held, nor have plaintiffs asserted that defendant provided
them with such assurances. Indeed, the letter specifically acknowledges the possibility of
ongoing foreclosure proceedings, cautioning that legal proceedings will not be halted until the
payoff funds are received. Despite this language, there is no indication that plaintiffs tendered
the payoff amount of $60.969.05 to defendant. More significantly, plaintiffs ultimately made no
attempt to redeem the property during the redemption period. In such circumstances, we cannot
discern how defendant’s conduct could have been prejudicial to plaintiffs’ ability to preserve
their interest in the property. See generally Diem, slip op at 4; Sweet Air Investment, Inc, 275
Mich. App. at 503. Accordingly, no material question of fact remained regarding whether
irregularities in the proceedings warranted setting aside of the foreclosure sale.
Furthermore, given that the redemption period had expired without redemption by
plaintiffs, we also conclude that the trial court properly determined that plaintiffs lacked standing
to pursue this lawsuit to void the foreclosure. “Whether a party has legal standing to assert a
claim constitutes a question of law that we review de novo.” Heltzel v Heltzel, 248 Mich. App. 1,
28; 638 NW2d 123 (2001). “[A] litigant has standing whenever there is a legal cause of action.”
Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich. 349, 372; 792 NW2d 686 (2010).
However, to have standing, an individual must have “in an individual or representative capacity
some real interest in the cause of action, or a legal or equitable right, title, or interest in the
subject matter of the controversy.” MOSES, Inc v SEMCOG, 270 Mich. App. 401, 414; 716
NW2d 278 (2006) (internal quotation marks and citations omitted).
Under MCL 600.3240(7), the mortgagor of commercial or industrial property has six
months from the date of the sheriff’s sale to redeem the property. See also MCL 600.3240(1),
(2). If the mortgagor has failed to redeem the property, when the redemption period expires, the
person or entity that purchased the property is vested with “the right, title, and interest” in the
property. MCL 600.3236. At the same time, upon expiration of the redemption period, all of the
mortgagor’s rights in the property are extinguished. Piotrowski v State Land Office Bd, 302
Mich. 179, 187; 4 NW2d 514 (1942); Bryan v JPMorgan Chase Bank, 304 Mich. App. 708, 713;
848 NW2d 482 (2014). Given that a mortgagor loses all interest in the property, it follows that,
he or she loses standing to challenge a foreclosure sale. Bryan, 304 Mich. App. at 713-714.
It is undisputed in the instant case that plaintiffs did not redeem the property before the
redemption period expired on February 23, 2013. On that date, all of John’s rights to the
property were extinguished, meaning that plaintiffs thereafter lacked standing to bring the
current action.1 Id. Accordingly, the trial court properly concluded that plaintiffs have no
standing to contest the foreclosure.
1
We noted that a redemption period may be equitably extended in cases involving a clear
showing of fraud or irregularity. See, e.g., Senters v Ottawa Savings Bank, FSB, 443 Mich. 45,
56-57; 503 NW2d 639 (1993); Schulthies v Barron, 16 Mich. App. 246, 247-248; 167 NW2d 784
(1969). As discussed, however, plaintiffs have not made a clear showing of fraud or irregularity
in this case as required to warrant extension of the redemption period. Moreover, the redemption
period had in fact expired in this case and this Court has previously recognized, albeit in an
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In sum, the trial court properly granted summary disposition to defendant under MCR
2.116(I)(1) because there is no genuine issue of material fact regarding whether irregularities
warrant setting aside the foreclosure and because plaintiffs lacked standing.
Affirmed.
/s/ Karen M. Fort Hood
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell
unpublished opinion, that “[a]lthough a clear showing of fraud or irregularity allows for an
equitable extension of the redemption period, the redemption period cannot be extended once it
has expired.” Dudley v Bank of America, unpublished opinion of the Court of Appeals, issued
May 20, 2014 (Docket No. 312771).
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