Carol Hunter v. Bank of America ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
CAROL HUNTER, UNPUBLISHED
July 30, 2015
Plaintiff-Counter Defendant-
Appellant,
v No. 321180
Oakland Circuit Court
BANK OF AMERICA, LC No. 13-132391-CH
Defendant-Appellee,
and
PAUL MOMA,
Defendant-Counter Plaintiff-
Appellee.
Before: FORT HOOD, P.J., and SAAD and RIORDAN, JJ.
PER CURIAM.
In this mortgage foreclosure action, plaintiff appeals the trial court’s grant of summary
disposition to defendants pursuant to MCR 2.116(C)(10). For the reasons stated below, we
affirm.
I. FACTS AND PROCEDURAL HISTORY
In January 2008, plaintiff Carol Hunter mortgaged her home in Southfield for $198,000.
Countrywide Bank, which was subsequently purchased by defendant Bank of America,
originated the mortgage. Sometime thereafter, Hunter stopped making payments and defaulted
on her mortgage. Bank of America instituted foreclosure proceedings by advertisement in 2009,
and the county sold the property at a sheriff’s sale on March 23, 2010.1 At this stage, Hunter had
1
Mortgage Electronic Registration Systems (MERS) originally purchased the home, and
conveyed it the day after purchase to Fannie Mae. In July 2011, Fannie conveyed the property to
Bank of America, which sold it to Moma in November 2012.
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renounced any interest in her former home, as she quitclaimed the property to the Modine White
Living Trust in November 2009. Neither Hunter nor the trust redeemed the property by the
statutory date, September 23, 2010. Defendant Paul Moma eventually purchased the property in
November 2012.
On September 23, 2010, plaintiff initiated a lawsuit in the Oakland Circuit Court against
Bank of America, and asserted that it had: (1) “improperly initiated” the foreclosure action,
because she remained in compliance with her mortgage agreement at the time of the foreclosure;
(2) “fraudulently inhibited the modification” of her mortgage; and (3) “fraudulently accelerated”
her mortgage. The Oakland Circuit found that Hunter’s claims were without merit and dismissed
the suit with prejudice in April 2011.
In spite of this judgment, Hunter brought the instant action in the Oakland Circuit Court
in February 2013.2 She alleged that Bank of America violated unspecified “applicable law and
federal regulations” when it “improperly and unlawfully” initiated foreclosure proceedings on
her home. She also claimed that Moma did not have a legitimate interest in the property, as his
claim derived from Bank of America, which supposedly obtained the real estate through
unlawful means. Hunter asked the court to declare her the legal and equitable titleholder of the
home, clear of Moma and Bank of America’s claims.
In its answer, Bank of America denied Hunter’s allegations, and asserted, among other
things, that Hunter: (1) failed to state a valid cause of action; and (2) lacked standing to bring
suit, because she had conveyed all rights in the property to the Modine White trust in November
2009, five months before the county sold the home at the sheriff’s sale. Bank of America also
noted that Hunter had failed to redeem the property within six months of the foreclosure, as
required by MCL 600.3240. Moma filed his own motion for summary disposition, pursuant to
MCR 2.116(C)(7) and (C)(10), which Bank of America joined in June 2013.3
2
It is likely that Hunter brought the instant suit in an unsuccessful attempt to prevent Moma
from securing her eviction from the property. Moma sued Hunter on February 1, 2013 in the 46th
District Court, to quiet title and receive judicial recognition that Hunter no longer retained any
interest in the home. Before she responded to Moma’s complaint, Hunter brought the instant
action in the Oakland Circuit Court on February 21, 2013. On February 25, 2013, she responded
to Moma’s complaint, and implied that the instant suit against Bank of America and Moma
rendered Moma’s action against her invalid. She also claimed that Moma’s interest in the
property was illegitimate, because he received the interest from Bank of America. The district
court was not convinced. In March 2013, it specifically denied Hunter’s motion to dismiss
Moma’s suit, granted Moma summary disposition, and issued an order evicting Hunter from the
home.
3
In his arguments before the trial court, Moma, acting as a counter-plaintiff, counter-claimed
that Hunter owed him damages. The trial court rejected Moma’s assertions, and he does not
raise this issue on appeal.
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At a hearing in July 2013, the trial court granted defendants’ motion for summary
disposition. In its holding from the bench, the trial court stated that Hunter lacked standing
because she: (1) deeded her interest in the property to the Modine White trust before the
foreclosure occurred; and (2) failed to redeem the property within the relevant statutory
redemption period. The trial court also ruled that Hunter’s action was barred by res judicata,
because she had made the same claims in the already resolved 2010 Oakland Circuit lawsuit and
2013 46th District Court lawsuit. Moreover, the trial court found that Hunter did not provide any
factual basis for her substantive claims of fraud and breach of contract against Bank of America,4
and stated that her instant action was an “egregious abuse” of the judicial system. Accordingly,
the trial court granted summary disposition to defendants under MCR 2.116(C)(10) and
dismissed Hunter’s suit.5
On appeal, Hunter says that the trial court erred when it: (1) did not add the Modine
White trust as a party pursuant to MCR 2.205 and 2.207; and (2) held that her claims against
defendants were barred by res judicata. Hunter does not address her failure—and the failure of
the trust—to redeem the property within the relevant statutory redemption period. Defendants
ask us to affirm the holding of the trial court, and make the same arguments as they did at the
motion hearing. In addition, defendants aver that Hunter’s request to add the Modine White trust
as a party is equitably estopped and irrelevant to this litigation, as the trust did not redeem the
property within the relevant statutory redemption period.6
II. STANDARD OF REVIEW
4
Specifically, the trial court said:
I’m really quite frankly appalled by what’s gone on [in this case.] [Hunter] has
failed at any turn here to establish any factual basis for the claims that are alleged.
And the factual basis that is implied . . . is exactly the same as was previously
decided by [the Oakland Circuit Court and the 46th District Court].
5
Though the trial court did not specify under which subrule it granted summary disposition, we
assume that it did so pursuant to MCR 2.116(C)(10) because the court considered materials
outside the pleadings when it reached its determination. Cuddington v United Health Servs, Inc,
298 Mich. App. 264, 270; 826 NW2d 519 (2012).
6
Defendants also wrongly assert that our Court lacks jurisdiction to hear this case. MCR
7.203(A)(1) provides our Court with jurisdiction over appeals from circuit court orders that are
defined as “final” per MCR 7.202(6). A final order is the first order that disposes of all the
claims against all of the parties to the case. MCR 7.202(6)(a)(i).
Here, Hunter appeals the March 14, 2014 order of the Oakland Circuit Court, which granted
summary disposition to defendants, dismissed her suit, and dismissed Moma’s counter-claim for
damages. Because the March 14, 2014 order resolved these issues, it was the final order—it
disposed of all the claims against all the parties to the case—and our Court therefore has
jurisdiction over the appeal. MCR 7.202(6).
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A trial court’s decision to grant or deny a motion for summary disposition is reviewed de
novo. Hogg v Four Lakes Ass’n, Inc, 307 Mich. App. 402, 406; 861 NW2d 341 (2014).
Questions of law, such as whether a party has standing to bring an action7 and whether res
judicata applies, are also reviewed de novo. Marketplace of Rochester Hills Parcel B, LLC v
Comerica Bank, ___ Mich App ___; ___ NW2d ___, 2015 WL 1214748. A trial court’s ruling
on a motion to add or remove a party is reviewed for an abuse of discretion. PT Today, Inc v
Comm’r of Office of Financial and Ins Servs, 270 Mich. App. 110, 136; 715 NW2d 398 (2006).
III. ANALYSIS
A plaintiff who does not bring an action challenging a foreclosure within the six month
statutory redemption period specified by MCL 600.3240 lacks standing to bring suit, because
“[i]f a mortgagor fails to avail him or herself of the right of redemption, all the mortgagor’s
rights in and to the property are extinguished.” Bryan v JPMorgan Chase Bank, 304 Mich. App.
708, 713; 848 NW2d 482 (2014). And, needless to say, to have standing to contest a foreclosure,
a plaintiff must have an interest in the property being foreclosed. Trademark Properties of Mich,
LLC v Fed Nat’l Mtg Ass’n, 308 Mich. App. 132, 136; 863 NW2d 344 (2014).
Here, Hunter lacks standing to bring this action for two reasons. First, Hunter has not
had an interest in the property since November 2009, when she quitclaimed the real estate to the
Modine White trust. Second, even if we assumed that Hunter had an interest in the parcel,
neither Hunter nor the trust redeemed the property within the six month period mandated by
MCL 600.3240(8). Accordingly, neither party has any right or interest in the property, and both
parties lack standing to challenge the foreclosure.8 For this reason alone, the trial court correctly
dismissed Hunter’s suit and granted summary disposition to defendants.9
Were we to nonetheless assume that Hunter has standing to challenge the foreclosure,
Hunter’s action would be barred by res judicata. “Res judicata bars a subsequent action between
the same parties when the evidence or essential facts are identical.” Dart v Dart, 460 Mich. 573,
586; 597 NW2d 82 (1999). The doctrine applies when “(1) the first action was decided on the
merits, (2) the matter contested in the second action was or could have been resolved in the first,
and (3) both actions involve the same parties or their privies.” Estes v Titus, 481 Mich. 573, 585;
751 NW2d 493 (2008). “Michigan courts have broadly applied the doctrine of res judicata.
7
American Family Ass’n of Mich v Mich State Univ Bd of Trustees, 276 Mich. App. 42, 44–45;
739 NW2d 908 (2007).
8
For this reason, it is unnecessary to address Hunter’s argument that the trial court “erred” when
it did not add the Modine White trust as a party to this dispute. Even if the trust had been a party
to the suit, it would, like Hunter, lack standing to challenge the foreclosure, because it did not
make any effort to redeem the property within the six month redemption period, as mandated by
MCL 600.3240. Bryan, 304 Mich. App. at 713.
9
Perhaps in tacit admission of the weakness of her claim, Hunter does not explain in her brief on
appeal why her failure to redeem the property, and accordant lack of standing, is not dispositive
to the resolution of this case.
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They have barred, not only claims already litigated, but every claim arising from the same
transaction that the parties, exercising reasonable diligence, could have raised but did not.” Dart,
460 Mich. at 586.
In this case, the trial court correctly held that res judicata barred Hunter’s action. Again,
in her 2010 lawsuit in the Oakland Circuit, Hunter claimed that Bank of America: (1)
“improperly initiated” the foreclosure action, because she remained in compliance with her
mortgage agreement at the time of the foreclosure; (2) “fraudulently inhibited the modification”
of her mortgage; and (3) “fraudulently accelerated” her mortgage. These claims are identical in
substance to her arguments in the instant case, namely, that Bank of America “improperly and
unlawfully” initiated foreclosure proceedings on plaintiff’s home, and committed fraud when it
violated unspecified state law and federal regulations. Moreover, in her response to Moma’s
2013 action against her in the 46th District Court, Hunter averred that Moma’s interest in the
property was illegitimate, because he received the interest from Bank of America—the exact
assertion she makes in the instant action.
Accordingly, Hunter’s claims are barred by res judicata. Both the 2010 Circuit Court
lawsuit and the 2013 District Court lawsuit were decided on the merits, and in each instance the
court held for Bank of America or Moma, and against Hunter. Estes, 481 Mich. at 585. The
issues that animate the instant action were (or could have been) resolved in these two separate
proceedings. Id. And both actions involved Hunter, Bank of America, and Moma, the parties
involved in this case. Id. As such, the instant action is little more than an attempt to relitigate
issues that have already been decided in two separate court proceedings. Dart, 460 Mich. at 586.
The trial court thus correctly held that Hunter’s lawsuit is barred by res judicata, and granted
summary disposition to defendants.
Moreover, were we to hold that res judicata did not apply to this action, the trial court
also properly granted summary disposition to defendants because Hunter provided no factual
support for her claims. During the motion proceedings, she simply stated that: (1) Bank of
America violated unspecified “applicable law and federal regulations” when it “improperly and
unlawfully” initiated foreclosure proceedings on her home; and (2) Moma lacked a valid interest
in the property, because of Bank of America’s alleged improprieties. Hunter provided no
support for these allegations, in that she did not specify how exactly Bank of America’s
foreclosure violated the law beyond her mere statement that it did. When the party opposing
summary disposition “fails to present documentary evidence establishing the existence of a
material factual dispute,” the motion for summary disposition is properly granted. Quinto v
Cross and Peters Co, 451 Mich. 358, 363; 547 NW2d 314 (1996).
The trial court, for any one or a combination of the above reasons, thus properly granted
summary disposition to defendants pursuant to MCR 2.116(C)(10).
Affirmed.
/s/ Karen M. Fort Hood
/s/ HenryWilliam Saad
/s/ Michael J. Riordan
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