Joseph S Melnychenko v. Carrington Mortgage Services LLC ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
JOSEPH S. MELNYCHENKO, UNPUBLISHED
May 10, 2018
Plaintiff-Appellant,
v No. 337118
St. Clair Circuit Court
CARRINGTON MORTGAGE SERVICES LLC, LC No. 15-002360-CH
Defendant-Appellee.
Before: CAVANAGH, P.J., and STEPHENS and SWARTZLE, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendant’s motion for summary disposition
in this quiet title action following a mortgage foreclosure. We affirm.
In 2009, plaintiff secured a mortgage encumbering real property located in Port Huron
and that mortgage was ultimately assigned to defendant. In 2014, plaintiff defaulted on the
mortgage loan and defendant initiated a foreclosure-by-advertisement proceeding on the
property. On January 13, 2015, the first of four notices of foreclosure appeared in the Port
Huron Times Herald. On January 16, 2015, Daniel Bueche, Deputy Sheriff with the St. Clair
County Sheriff’s Office, posted a copy of the foreclosure notice on the front door of the dwelling
located on the subject property, which he photographed. A sheriff’s sale was conducted on May
7, 2015, after being adjourned twice allegedly at plaintiff’s request, and defendant was the
successful bidder for the property. The sheriff’s deed was recorded on May 12, 2015, and the
statutory redemption period expired on November 7, 2015.
Instead of redeeming the property, on September 30, 2015, plaintiff filed a complaint to
quiet title and for injunctive relief, alleging that defendant failed to post a notice in a conspicuous
place that the mortgage would be foreclosed by a sale of the premises in violation of MCL
600.3208. On November 4, 2015, in support of a request for a temporary restraining order,
plaintiff filed his affidavit averring that “he never received a true posted copy of the Notice that
the mortgage would be foreclosed by a sale of the mortgaged premises pursuant to MCLA
600.3208.” On that same date, a temporary restraining order and order to show cause was
entered by the trial court, which stayed and tolled the redemption period. Defendant was ordered
to appear and show cause why a preliminary injunction should not issue. Apparently, several
adjournments of the proceedings followed.
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On August 3, 2016, defendant filed a motion for summary disposition under MCR
2.116(C)(8) and (C)(10). Defendant argued, in relevant part, that plaintiff failed to establish a
genuine issue of material fact existed on the issue of compliance with the posted-notice
requirement of MCL 600.3208. In particular, defendant argued, the affidavit of posting executed
by Deputy Sheriff Bueche, which is notarized and dated January 16, 2015, states that he “posted
a notice, a true copy of which is annexed hereto, in a conspicuous place upon the premises
described in said notice by attaching the same in a secure manner” to the front door of the subject
premises. Plaintiff had presented no evidence to refute defendant’s claim of proper notice; his
self-serving affidavit was insufficient. Accordingly, defendant requested the trial court to grant
its motion for summary disposition.
On October 17, 2016, plaintiff filed a response to defendant’s motion, arguing in relevant
part that a genuine issue of material fact existed regarding whether defendant did, in fact, post
notice of the foreclosure on the subject property as required under MCL 600.3208. Plaintiff
admitted that there was a photograph of the posting, but claimed there was a question as to its
authenticity. Thus, plaintiff argued that defendant’s motion for summary disposition should be
denied.
At a hearing on defendant’s motion for summary disposition, defendant argued that it had
presented plaintiff with a second affidavit from Deputy Sheriff Bueche which attested that he
was the person who did the posting on the dwelling, that he took the photograph of the notice
posted on the front door, and that the affidavit of posting had been filed with the register of
deeds. Defendant argued that its evidence regarding the proper posting of notice was undisputed
by plaintiff and, thus, defendant was entitled to summary dismissal. Plaintiff argued that he did
not see the posted notice and the photograph of the purported notice was not authenticated. The
trial court considered plaintiff’s affidavit which was “worded carefully” but “very general” and
“not specific in terms of refuting the date and time and the nature of the posting that the Deputy
has claimed occurred in his Affidavit.” The court concluded that plaintiff’s self-serving affidavit
alone was insufficient to establish that a genuine issue of material fact existed on the issue of
notice and granted defendant’s motion for summary disposition. Plaintiff filed a motion for
reconsideration, which was denied. This appeal followed.
Plaintiff argues that the trial court erred in granting defendant’s motion for summary
disposition because there was a genuine issue of material fact regarding whether defendant
complied with the posted-notice requirement of MCL 600.3208. We disagree.
We review de novo a trial court’s decision to grant a motion for summary disposition.
Sheridan v Forest Hills Pub Sch, 247 Mich. App. 611, 620; 637 NW2d 536 (2001). Defendant’s
motion was brought under both MCR 2.116(C)(8) and (C)(10). Because the court considered
evidence beyond the pleadings, we review the motion as granted under subrule (C)(10). See
Steward v Panek, 251 Mich. App. 546, 554-555; 652 NW2d 232 (2002). A motion brought under
MCR 2.116(C)(10) tests the factual support of a claim. Sheridan, 247 Mich. App. at 620. The
moving party must identify the matters that have no disputed factual issues, and has the initial
burden of supporting its position with documentary evidence. Quinto v Cross & Peters Co, 451
Mich. 358, 362; 547 NW2d 314 (1996). The burden then shifts to the opposing party to establish
by evidentiary materials that a genuine issue of disputed fact exists. Id. After considering the
documentary evidence submitted in the light most favorable to the nonmoving party, the court
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determines whether a genuine issue of material fact exists to warrant a trial. Walsh v Taylor, 263
Mich. App. 618, 621; 689 NW2d 506 (2004).
Foreclosure by advertisement is governed by MCL 600.3201 et seq. MCL 600.3208
provides:
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 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. . . . 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.
Plaintiff argues that a genuine issue of material fact exists as to whether defendant posted the
requisite notice on the premises.
In support of its motion for summary disposition, defendant presented two affidavits from
Deputy Sheriff Bueche which stated that he posted the notice of foreclosure on the front door of
the subject premises, as depicted in a photograph that he took. The affidavit of posting that he
executed was recorded at the register of deeds as set forth under MCL 600.3256(1)(c), which is
“presumptive evidence of the facts therein contained,” MCL 600.3264. In other words, that
affidavit was presumptive evidence that defendant complied with the posted-notice requirement
set forth in MCL 600.3208.
In support of his claim that defendant failed to comply with the posted-notice
requirement, plaintiff presented his affidavit averring that “he never received a true posted copy
of the Notice that the mortgage would be foreclosed by a sale of the mortgaged premises
pursuant to MCLA 600.3208.” First, MCL 600.3208 does not require that the defaulting party
receive “a true posted copy” of the notice; rather, the statute states: “a true copy shall be posted
in a conspicuous place upon any part of the premises described in the notice.” Second, as this
Court explained in Cheff v Edwards, 203 Mich. App. 557, 560-561; 513 NW2d 439 (1994),
personal notice or service is not required by MCL 600.3208. “[P]ublication in a newspaper for
four consecutive weeks and a posting of the foreclosure notice on the premises is all that is
required.” Id. at 561. Third, MCL 600.3208 does not require that the defaulting party even
observe the posted notice. Fourth, although plaintiff challenged the authenticity of the
photograph presented by defendant, MCL 600.3208 does not require that such a photograph be
taken of the posted notice. And fifth, plaintiff presented no evidence that defendant failed to
comply with the posted-notice requirement of MCL 600.3208.
In summary, the trial court properly granted defendant’s motion for summary disposition
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because there was no genuine issue of material fact that defendant complied with the posted-
notice requirement set forth in MCL 600.3208.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens
/s/ Brock A. Swartzle
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