John D Edwards v. Oakland County Treasurer ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
JOHN D. EDWARDS, UNPUBLISHED
April 17, 2018
Plaintiff-Appellant,
v No. 336682
Oakland Circuit Court
OAKLAND COUNTY TREASURER, and LC No. 2016-154022-CH
SOUTHFIELD CITY TREASURER,
Defendants-Appellees.
Before: SERVITTO, P.J., and MARKEY and O’CONNELL, JJ.
PER CURIAM.
Plaintiff filed a complaint requesting an order setting aside an order foreclosing on his
property, invalidating the sale of the property, and granting plaintiff legal title to the property.
The trial court issued orders granting defendants’ motions for summary disposition pursuant to
MCR 2.116(C)(10) (no genuine issue of material fact). Plaintiff appeals by right. We affirm.
I. FACTS
On November 26, 2008, plaintiff acquired the subject property by covenant deed and
deemed it his “principal residence.” When plaintiff failed to pay property taxes in 2012 and
2013, defendant Oakland County Treasurer foreclosed on the property. Plaintiff alleged that
there was a failure to comply with statutory and constitutional notice requirements before
foreclosure, but defendant Oakland County Treasurer presented evidence of multiple attempts to
provide plaintiff with notice of the impending foreclosure: On June 1, 2014, a notice of property
tax delinquency was mailed to plaintiff at the property address. A second notice of property tax
delinquency was mailed to “John Edwards” and separately to “John Derek Edwards” at the
property address on September 1, 2014. Notices of property tax forfeiture were again mailed to
“John Edwards” and “John Derek Edwards” at the property address in February of 2015,
although they were returned unclaimed.
On June 2, 2015, defendant Oakland County Treasurer conducted a title search that
identified a New York, New York address and a Lansing, Michigan address as the only other
residences associated with plaintiff. The title search also indicated that a “John M. Edwards” in
West Bloomfield, Michigan held an interest in the property.
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In December of 2015, a notice of administrative show cause hearing and judicial
foreclosure hearing was mailed to plaintiff at the property address, although this was also
returned unclaimed. On December 14, 2015, it was discovered that the property address was
listed as the forwarding destination for the New York address. A notice of administrative show
cause hearing and judicial foreclosure hearing was then mailed to plaintiff at the West
Bloomfield address, though its arrival status was unclear. Another notice of administrative show
cause hearing and judicial foreclosure hearing was mailed to plaintiff at the Lansing address and
was accepted by a Nathaniel Edwards.
A process server stated that she personally visited the property three times—on October
20, 2015, November 7, 2015, and November 20, 2015—in attempts to serve the notice of show
cause hearing and judicial foreclosure hearing on plaintiff. She never made contact with
plaintiff, but posted the documents to the front door of the property, photographing the
documents’ placement immediately thereafter. Another process server personally visited the
West Bloomfield address once in an attempt to serve the notice of show cause hearing and
judicial foreclosure hearing on plaintiff. He also posted the documents to the front door when he
was unable to make contact with plaintiff and took photographs.
In November, 2015, defendant Oakland County Treasurer mailed a notice of show cause
hearing and judicial foreclosure hearing to plaintiff at a New York, New York address that did
not match the one produced by the title search. Another notice of show cause hearing and
judicial foreclosure hearing was mailed to plaintiff at the Lansing address and was again received
by a Nathaniel Edwards. Finally, a notice of impending foreclosure was published in the
Oakland Press on December 17, 2015, December 24, 2015, and December 31, 2015.
On February 3, 2016, the Oakland Circuit Court issued a judgment of foreclosure on the
property. On March 1, 2016, defendant Oakland County Treasurer sent a final letter to plaintiff
at the property address informing him of the foreclosure. Plaintiff did not timely appeal, and on
July 7, 2016, the property was conveyed to the City of Southfield.
Plaintiff filed this suit on July 14, 2016, alleging that defendant Oakland County
Treasurer did not comply with statutory and constitutional notice requirements before seeking
foreclosure on the property. Defendants filed motions for summary disposition, which the trial
court granted.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). The reviewing court
must only consider evidence that was properly presented to the trial court before its decision on
the motion. Peña v Ingham Co Rd Comm, 255 Mich App 299, 310; 660 NW2d 351 (2003). This
Court also reviews de novo equitable actions to quiet title. McFerren v B & B Investment Group,
253 Mich App 517, 522; 655 NW2d 779 (2002).
Under MCR 2.116(C)(10), summary disposition can be granted if “there is no genuine
issue as to any material fact, and the moving party is entitled to judgment or partial judgment as
a matter of law.” Motions for summary disposition under MCR 2.116(C)(10) test the factual
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sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).
“A question of fact exists when reasonable minds could differ as to the conclusions to be drawn
from the evidence.” Dextrom, 287 Mich App at 416. When evaluating motions brought under
this subrule, a trial court must consider—in the light most favorable to the nonmoving party—the
parties’ affidavits, pleadings, depositions, admissions, and other documentary evidence. Id. at
415-416, citing MCR 2.116(G)(5). Such evidence is required when judgment is sought pursuant
to subrule (C)(10). MCR 2.116(G)(3)(b). Motions under subrule (C)(10) “must specifically
identify the issues as to which the moving party believes there is no genuine issue as to any
material fact.” MCR 2.116(G)(4). The nonmoving party may not rest upon its pleading, but it
must set forth specific facts showing that there is a genuine issue for trial. Id. If the nonmoving
party fails to do so, the moving party is entitled to judgment as a matter of law. Maiden, 461
Mich at 120. Mere conclusory allegations in a party’s affidavit do not raise genuine issues of
material fact. Quinto v Cross and Peters Co, 451 Mich 358, 371-372; 547 NW2d 314 (1996).
III. ANALYSIS
A. DUE PROCESS
Plaintiff argues that defendant Oakland County Treasurer did not provide proper notice
before seeking foreclosure of the property in violation of plaintiff’s due process rights. We
disagree. As a preliminary matter, the new evidence attached to plaintiff’s appellate brief is not
properly before this Court for review: it was not presented to the trial court before its decision
on defendants’ motions. See Peña, 255 Mich App at 310.
It was the intent of the Legislature that the provisions of the General Property Tax Act,
see MCL 211.1 through MCL 211.157,
relating to the return, forfeiture, and foreclosure of property for delinquent taxes
satisfy the minimum requirements of due process required under the constitution
of this state and the constitution of the United States but that those provisions do
not create new rights beyond those required under the state constitution of 1963 or
the constitution of the United States. [MCL 211.78(2).]
“Before a State may take property and sell it for unpaid taxes, the Due Process Clause of
the Fourteenth Amendment requires the government to provide the owner notice and opportunity
for hearing appropriate to the nature of the case.” Jones v Flowers, 547 US 220, 223; 126 S Ct
1708; 164 L Ed 2d 415 (2006) (quotation marks omitted). Due process does not require that a
property owner receive actual notice, however. Id. at 226. Instead, due process only requires
that the government provide “notice reasonably calculated, under all the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to present
their objections.” Id. (quotation marks omitted). When the government attempts to provide
notice and never learns that the attempted notice failed to reach its intended recipient, the
constitutional requirements of due process are still satisfied. Id. But if it learns that an attempted
notice was returned unclaimed, the government must take additional, reasonable steps to notify
the intended recipient to the extent it is practicable to do so. Id. at 234. Such steps may include
resending the notice by regular mail, as opposed to certified mail, posting the notice to the front
door, or addressing otherwise undeliverable mail to “occupant.” Id. at 234-235 (emphasis
added) (quotation marks omitted).
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Michigan has codified the requirements as to how a county treasurer must send notice of
delinquent taxes before forfeiture and foreclosure. MCL 211.78a(2) states:
On March 1 in each year, taxes levied in the immediately preceding year that
remain unpaid shall be returned as delinquent for collection . . . . [P]roperty
delinquent for taxes levied in the second year preceding the forfeiture under
section 78g or in a prior year to which this section applies shall be forfeited to the
county treasurer for the total of the unpaid taxes, interest, penalties, and fees for
those years as provided under section 78g.
On or within 60 days before the June 1 immediately following the date when unpaid taxes were
returned as delinquent to a county treasurer, the county treasurer must send the first notice of
delinquency by first class mail, address correction requested. MCL 211.78b. The notice must be
sent
to the person to whom a tax bill for property returned for delinquent taxes was last
sent or to the person identified as the owner of property returned for delinquent
taxes, to a person entitled to notice of the return of delinquent taxes . . . , and to a
person to whom a tax certificate for property returned for delinquent taxes was
issued . . . . [MCL 211.78b.]
It must include the following information:
(a) The date property on which unpaid taxes were returned as delinquent will be
forfeited to the county treasurer for those unpaid delinquent taxes, interest,
penalties, and fees.
(b) A statement that a person who holds a legal interest in the property may lose
that interest as a result of the forfeiture and subsequent foreclosure proceeding.
(c) A legal description or parcel number of the property and the street address of
the property, if available.
(d) The person or persons to whom the notice is addressed.
(e) The unpaid delinquent taxes, interest, penalties, and fees due on the property.
(f) A statement that unless those unpaid delinquent taxes, interest, penalties, and
fees are paid on or before the March 31 immediately succeeding the entry in an
uncontested case of a judgment foreclosing the property under section 78k,
absolute title to the property shall vest in the foreclosing governmental unit.
(g) A statement of the person’s rights of redemption and notice that the rights of
redemption will expire on the March 31 immediately succeeding the entry in an
uncontested case of a judgment foreclosing the property under section 78k.
[MCL 211.78b(a) through (g).]
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Defendant Oakland County Treasurer presented evidence of such a notice with its motion for
summary disposition. It was mailed to plaintiff at the property address with all necessary
information on June 1, 2014.
A second notice must be sent by first class mail, address correction requested, on or
within 60 days before the September 1 immediately following the date when unpaid taxes are
returned to a county treasurer as delinquent. MCL 211.78c. This notice must include all of the
information contained in the first notice, with an added “schedule of the additional fees that will
accrue on the immediately succeeding October 1 . . . if the unpaid delinquent taxes, interest,
penalties, and fees due on the property are not paid.” MCL 211.78c(a) through (h). Defendant
Oakland County Treasurer attached evidence of such notice. It was mailed to plaintiff at the
property with all necessary information on September 1, 2014. Indeed, two copies were
apparently sent: one to plaintiff as “John Edwards,” and one to plaintiff as “John Derek
Edwards.”
No later than the February 1 immediately following the date when unpaid taxes were
returned to a county treasurer as delinquent or for forfeiture, foreclosure, and sale, the county
treasurer must send a third notice—this time by certified mail. MCL 211.78f(1). This notice
must contain the same information included in the second notice but replace the requirement for
a schedule of additional fees as of the immediately succeeding October 1 with “[a] schedule of
the additional interest, penalties, and fees that will accrue on the immediately succeeding March
1 . . . if those unpaid delinquent taxes, interest, penalties, and fees due on the property are not
paid.” MCL 211.78f(1)(a) through (h). Defendant Oakland County Treasurer offered evidence
of this third notice. It was mailed by certified mail to plaintiff—as “John Edwards” and “John
Derek Edwards”—at the property with all necessary information in February of 2015.
Once a property has remained delinquent on taxes, penalties, and fees for a full year, the
property is forfeited to the county treasurer on March 1 of the tax year. MCL 211.78g(1).
Forfeited property may be redeemed at any time before the March 31 immediately following the
entry of a judgment of foreclosure or, in a contested case, within 21 days of the entry of a
judgment of foreclosure. MCL 211.78g(3). In this case, a judgment of foreclosure was entered
by the Oakland Circuit Court on February 3, 2016. Plaintiff submitted no evidence that he
redeemed or even attempted to redeem the property at any time after the judgment of foreclosure
was issued.
No later than May 1 immediately following forfeiture, a foreclosing county must
determine the address “reasonably calculated to apprise those owners of a property interest of the
show cause hearing . . . and the foreclosure hearing . . . and shall send notice” of those hearings
by certified mail, return receipt requested, at least 30 days before the show cause hearing. MCL
211.78i(2). Aside from the property address, on June 2, 2015, defendant Oakland County
Treasurer discovered three additional addresses—the one in New York, New York, the one in
West Bloomfield, and the one in Lansing—that may have been associated with plaintiff . It also
discovered on December 14, 2015, that the address of the subject property was a valid
forwarding address for the New York address. While it did not discover these additional
addresses on or before May 1, 2015, see MCL 211.78i(2), because the address of the subject
property was a valid forwarding destination for the New York address and because the West
Bloomfield address was listed as the address of the holder of an encumbrance on the property not
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bearing plaintiff’s name, it appears that the property address and Lansing addresses were the
only ones “reasonably calculated to apprise” plaintiff of the hearings. See id. Further, failure to
comply with any provision of MCL 211.78i “shall not invalidate any proceeding under this act if
the owner of a property interest . . . is accorded the minimum due process required under the
state constitution of 1963 and the constitution of the United States.” MCL 211.78i(10). Even so,
defendant Oakland County Treasurer supplied evidence of a notice of the show cause hearing
and foreclosure hearing, which was mailed in December of 2015 to plaintiff by certified mail to
the property address, the West Bloomfield address, and the Lansing address. Statutorily
sufficient notices were also mailed by certified mail to the New York address and the Lansing
address in November, 2015.
The foreclosing county or an authorized representative or agent must personally visit the
forfeited property. MCL 211.78i(3). If the representative or agent is unable to meet with the
occupant, notice of the foreclosure must be placed
in a conspicuous manner on the property . . . [along with] a notice that explains, in
plain English, that the property will be foreclosed unless forfeited unpaid
delinquent taxes, interest, penalties, and fees are paid, the time within which
forfeited unpaid delinquent taxes, interest, penalties, and fees must be paid, and
the names, addresses, and telephone numbers of agencies or other resources that
may be available to assist the occupant to avoid loss of the property. [MCL
211.78i(3)(d).
Such notice must include all of the following:
(a) The date on which the property was forfeited to the county treasurer.
(b) A statement that the person notified may lose his or her interest in the property
as a result of the foreclosure proceeding . . . .
(c) A legal description or parcel number of the property and the street address of
the property, if available.
(d) The person to whom the notice is addressed.
(e) The total taxes, interest, penalties, and fees due on the property.
(f) The date and time of the show cause hearing . . . .
(g) The date and time of the hearing on the petition for foreclosure . . . , and a
statement that unless the forfeited unpaid delinquent taxes, interest, penalties, and
fees are paid on or before the March 31 immediately succeeding the entry of a
judgment foreclosing the property . . . , or in a contested case within 21 days of
the entry of a judgment foreclosing the property . . . , the title to the property shall
vest absolutely in the foreclosing governmental unit and that all existing interests
in oil or gas in that property shall be extinguished except the following:
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(i) The interests of a lessee or an assignee of an interest of a lessee under
an oil or gas lease in effect as to that property or any part of that property
if the lease was recorded in the office of the register of deeds in the county
in which the property is located before the date of filing the petition for
foreclosure . . . .
(ii) Interests preserved . . . .
(h) An explanation of the person’s rights of redemption and notice that the rights
of redemption will expire on the March 31 immediately succeeding the entry of a
judgment foreclosing the property . . . , or in a contested case 21 days after the
entry of a judgment foreclosing the property. [MCL 211.78i(7)(a) through (h).]
The evidence established that statutorily sufficient documents were personally taken to the
property address three times and to the West Bloomfield address once and that the documents
were posted to the front doors of both addresses when plaintiff could not be contacted.
If the foreclosing county is unable to determine the address “reasonably calculated to
apprise the owners of a property interest entitled to notice under this section,” notice must be
inserted for two successive weeks—once each week—“in a notice publication circulated in the
county in which the property is located.” MCL 211.78i(5). Such notice must include:
(a) A legal description or parcel number of each property.
(b) The street address of each property, if available.
(c) The name of any person or entity entitled to notice under this section who has
not been notified . . . .
(d) The date and time of the show cause hearing . . . .
(e) The date and time of the hearing on the petition for foreclosure . . . .
(f) A statement that unless all forfeited unpaid delinquent taxes, interest, penalties,
and fees are paid on or before the March 31 immediately succeeding the entry of a
judgment foreclosing the property . . . , or in a contested case within 21 days of
the entry of a judgment foreclosing the property . . . , the title to the property shall
vest absolutely in the foreclosing governmental unit and that all existing interests
in oil or gas in that property shall be extinguished except the following:
(i) The interests of a lessee or an assignee of an interest of a lessee under
an oil or gas lease in effect as to that property or any part of that property
if the lease was recorded in the office of the register of deeds in the county
in which the property is located before the date of filing the petition for
foreclosure . . . .
(ii) Interests preserved . . . .
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(g) A statement that a person with an interest in the property may lose his or her
interest in the property as a result of the foreclosure proceeding . . . and that all
existing interests in oil or gas in that property shall be extinguished except the
following:
(i) The interests of a lessee or an assignee of an interest of a lessee under
an oil or gas lease in effect as to that property or any part of that property
if the lease was recorded in the office of the register of deeds in the county
in which the property is located before the date of filing the petition for
foreclosure . . . .
(ii) Interests preserved. [MCL 211.78i(8)(a) through (g).]
Here, such notice was posted in the Oakland Press three times before the show cause hearing.
Thus, defendant Oakland County presented evidence that it complied with all the statutory notice
requirements of the General Property Tax Act and with due process. See Jones, 547 US at 226,
234-235.
In his amended complaint and affidavit, plaintiff claimed that he was not provided
adequate notice; however, plaintiff’s affidavit merely states, “I did not receive notice of such tax
sale/auction as required under MCL 711.28 [sic].” Conclusory statements are insufficient to
survive summary disposition under MCR 2.116(C)(10). Quinto, 451 Mich at 371-372. Plaintiff
provided no other evidence of defendants’ allegedly deficient notice. When challenged under
subrule (C)(10), the nonmoving party may not rest on its pleading. MCR 2.116(G)(4). Because
plaintiff failed to establish a deficiency in notice, summary disposition was properly granted.
B. QUIET TITLE
Plaintiff asserts that he was entitled to title of the property. Under MCL 600.2932(1),
[a]ny person, whether he is in possession of the land in question or not, who
claims any right in, title to, equitable title to, interest in, or right to possession of
land, may bring an action in the circuit courts against any other person who
claims or might claim any interest inconsistent with the interest claimed by the
plaintiff, whether the defendant is in possession of the land or not.
In an action to quiet title, a plaintiff bears the burden of proof of establishing a prima facie case
of title. Boekeloo v Kuschinski, 117 Mich App 619, 628; 324 NW2d 104 (1982). If the plaintiff
fails to meet this burden, summary disposition is appropriate. Special Prop VI v Woodruff, 273
Mich App 586, 590; 730 NW2d 753 (2007). As we determined above, plaintiff failed to
establish that he had superior title to the property because the notice requirements were met.
Accordingly, plaintiff has no claim to the property, and the trial court did not err in granting
defendants’ motions for summary disposition. See id.C. REMAINING ARGUMENTS
Plaintiff’s remaining arguments concerning superintending control, MCL 211.78q(5), and
42 US 1983 were not brought before the trial court and are therefore not preserved for appellate
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review. See Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008). Although we have
authority to consider issues that, in our opinion, must in the interest of justice be addressed and
resolved, see Nuculovic v Hill, 287 Mich App 58, 63; 783 NW2d 124 (2010), none of these
issues has any bearing on the outcome of this case. Consequently, we decline to consider these
unpreserved issues.
We affirm.
/s/ Deborah A. Servitto
/s/ Jane E. Markey
/s/ Peter D. O'Connell
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