Charles Armstrong v. Peter James Management LLC

STATE OF MICHIGAN
COURT OF APPEALS
CHARLES ARMSTRONG and BEVERLY A. UNPUBLISHED
ARMSTRONG, September 10, 2015
Plaintiffs-Appellants,
v No. 321222
Wayne Circuit Court
PETER JAMES MANAGEMENT, LLC, and LC No. 13-016247-CH
WAYNE COUNTY,
Defendants-Appellees,
and
CITY OF DETROIT,
Defendant.
Before: TALBOT, C.J., and WILDER and FORT HOOD, JJ.
PER CURIAM.
In this suit to quiet title to real property, plaintiffs Charles Armstrong and Beverly A.
Armstrong appeal as of right from an order of the trial court granting defendant Wayne County’s
motion for summary disposition pursuant to MCR 2.116(C)(10), quieting title in favor of
defendant Peter James Management, LLC (PJM), and dismissing plaintiffs’ case as to all
defendants.1 We affirm.
Wayne County filed a petition seeking to foreclose on various parcels of real estate for
failure to pay 2010 property taxes. The property located at 19021 Chandler in Detroit, formerly
owned by the Armstrongs, was one such property. On March 28, 2013, Judge Virgil Smith of
the Wayne Circuit Court entered a judgment of foreclosure which granted the petition with
regard to 19021 Chandler, among others. The Armstrongs did not contest the foreclosure
1
PJM joined in Wayne County’s motion. At the motion hearing, the Armstrongs agreed that
because the City of Detroit was never served with the complaint, it would be appropriate to
dismiss the City from the action.
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proceedings or otherwise appeal Judge Smith’s judgment. Wayne County thereafter sold 19021
Chandler to PJM. However, the Armstrongs continued to reside at the property. On December
18, 2013, the Armstrongs instituted the instant action by filing a complaint seeking to quiet title
to 19021 Chandler. Wayne County filed a motion for summary disposition, and PJM concurred
in the motion. The trial court granted the motion pursuant to MCR 2.116(C)(10). The
Armstrongs now appeal.
“This Court reviews the grant or denial of summary disposition de novo to determine if
the moving party is entitled to judgment as a matter of law. In making this determination, the
Court reviews the entire record to determine whether defendant was entitled to summary
disposition.”2 A motion brought under MCR 2.116(C)(10) tests whether there is factual support
for a plaintiff’s claim.3 “A court must consider the affidavits, pleadings, depositions, admissions,
or any other documentary evidence submitted in a light most favorable to the nonmoving party in
deciding whether a genuine issue of material fact exists.”4
Wayne County raises a jurisdictional challenge. Wayne County argues that the order
appealed is a postjudgment order stemming from the original foreclosure proceeding, and that
because the Armstrongs failed to contest Judge Smith’s judgment of foreclosure, this Court lacks
jurisdiction over the matter. We disagree. The Armstrongs filed a separate case from the
foreclosure proceeding, and appeal from the final order entered in this second case, not a
postjudgment order entered in the original foreclosure matter. Because the Armstrongs filed
their claim of appeal within 21 days after entry of this final order, this Court has jurisdiction.5
That said, the trial court did not err when it granted the motion for summary disposition.
Wayne County sought to foreclose on the property, and on March 28, 2013, Judge Smith entered
a judgment granting Wayne County’s petition. The Armstrongs did not contest this judgment.
Accordingly, by statute, the judgment is final,6 and title to the property vested “absolutely in the
foreclosing governmental unit . . . .”7 However, this does not necessarily preclude the
Armstrongs from subsequently challenging the foreclosure. Our Supreme Court has held that to
the extent this statutory language could prevent a former property owner from contesting
whether he or she was provided adequate notice of the foreclosure proceedings, the statute
unconstitutionally deprives former property owners of due process.8 Thus, if the Armstrongs
2
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
3
Kefgen v Davidson, 241 Mich App 611, 616; 617 NW2d 351 (2000).
4
Id.5
MCR 7.104(A)(1).
6
MCL 211.78k(5)(g).
7
MCL 211.78k(6).
8
In re Treasurer of Wayne Co for Foreclosure, 478 Mich 1, 10; 732 NW2d 458 (2007)
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could demonstrate that they were denied due process, they could challenge the foreclosure on
this ground.9
However, the Armstrongs cannot demonstrate that they were denied due process. Where
the foreclosing governmental unit complies with the statutory notice requirements, due process is
satisfied.10 By statute, “A person shall be deemed to have been provided notice and an
opportunity to be heard if the foreclosing governmental unit followed the procedures for
provision of notice by mail, for visits to forfeited property, and for publication under [MCL
211.]78i . . . .”11
Pursuant to MCL 211.78i, if a foreclosing governmental unit can determine “the address
reasonably calculated to apprise the owners of a property interest,” it must send notice to the
owners “by certified mail, return receipt requested . . . .”12 Wayne County presented evidence
showing that it mailed notices to the Armstrongs at their home in November and December,
2012, via certified mail, return receipt requested.13 A foreclosing entity must also make a
personal visit to the property and attempt to notify any occupants of the pending foreclosure.14 If
no one is available when such an attempt is made, the foreclosing entity “shall place the notice in
a conspicuous manner on the property and shall also place in a conspicuous manner on the
property a notice that explains, in plain English, that the property will be foreclosed” unless
delinquent taxes are paid.15 Wayne County presented evidence that it made such an attempt, that
the Armstrongs were not home at the time of the visit, and that it left a notice of the pending
foreclosure in a conspicuous place, that being on a railing on the property’s porch. Wayne
9
Id. at 10-11.
10
Id. at 10 and n 19. Even partial compliance may satisfy due process “[b]ecause the notice
provisions provide more notice than is required to satisfy due process . . . .” Id.11
MCL 211.78k(5)(f). Even partial compliance with these requirements is acceptable “[b]ecause
the notice provisions provide more notice than is required to satisfy due process . . . .” Treasurer
of Wayne Co, 478 Mich at 10 n 19.
12
MCL 211.78i(2).
13
Pursuant to MCL 211.78i(5), if the foreclosing entity is unable to determine an appropriate
mailing address, it may, as a substitute for mailing, publish notice once each week for three
consecutive weeks “in a newspaper published and circulated in the county in which the property
is located, if there is one.” Such publication was not required in this instance because Wayne
County was able to determine an appropriate address and mail notice to the Armstrongs.
Regardless, the record demonstrates that Wayne County also published notice of the pending
foreclosure in the Detroit Legal News on November 13, 20, and 27, thus satisfying the
publication provision.
14
MCL 211.78i(3).
15
MCL 211.78i(3)(d).
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County complied with the notice provisions stated in MCL 211.78i, and accordingly, the
Armstrongs were not deprived of adequate due process.16
The Armstrongs argue that they did not actually receive any such notice, and accordingly,
were deprived of adequate due process. So long as reasonable efforts are made to notify
landowners of a pending foreclosure proceeding, the failure to effectuate actual notice does not
preclude foreclosure.17 Thus, evidence that the Armstrongs did not actually receive the notice
provided by Wayne County does not demonstrate that they were denied due process. Because
the Armstrongs failed to contest Judge Smith’s March 28, 2013 judgment and cannot now
demonstrate that they were deprived of adequate due process, the judgment is final and
conclusive.18 The Armstrongs’ claims failed as a matter of law, and accordingly, the trial court
correctly granted summary disposition in defendants’ favor.
The Armstrongs argue that a question of fact exists regarding whether they paid the 2010
property taxes. Specifically, the Armstrongs argue that they did make payments and intended to
pay these taxes, but that the payments were erroneously applied to 2012 property taxes. Such an
argument goes to the merits of whether Wayne County could foreclose on the property, the issue
decided by Judge Smith’s judgment. The Armstrongs did not appeal that judgment, and their
attempt to litigate the issue through a new action filed in the circuit court amounts to an
impermissible collateral attack. See People v Howard, 212 Mich App 366, 369; 538 NW2d 44
(1995) (“[A] collateral attack occurs whenever a challenge is made to a judgment in any matter
other than through a direct appeal.”). Regardless, the Armstrongs’ argument is without merit.
The Armstrongs have provided several tax bills, each supposedly demonstrating payments
intended to go toward the delinquent 2010 taxes. Each bill, however, clearly states that it is with
regard to 2012 property taxes. The bills all include the same language: “This bill is for 2012
only. Prior years[’] unpaid taxes/fees are billed separately.” The Armstrongs have presented no
evidence demonstrating that they fully paid their 2010 property taxes.19
The Armstrongs also argue that Wayne County, by responding to a request from the
Armstrongs made under the Freedom of Information Act (FOIA), entered into a contract under
which the Armstrongs were allowed further time to pay their property taxes and redeem the
property. No such claim was alleged in the Armstrongs’ complaint, and no such argument was
made in the trial court. Issues raised for the first time on appeal need not be addressed by this
16
Treasurer of Wayne Co, 478 Mich at 10 and n 19.
17
Dow v State, 396 Mich 192, 211; 240 NW2d 450 (1976). See also Sidun v Wayne Co
Treasurer, 481 Mich 503, 519; 751 NW2d 453 (2008), quoting Jones v Flowers, 547 US 220,
226; 126 S Ct 1708; 164 L Ed 2d 415 (2006) (“ ‘[D]ue process does not require that a property
owner receive actual notice before the government may take his property.’ ”).
18
MCL 211.78k(5)(g); Treasurer of Wayne Co, 478 Mich at 10-11.
19
The Armstrongs did submit a single receipt demonstrating that they paid $1,000 toward their
delinquent 2010 property taxes. However, this payment left over $3,000 in taxes, interest, and
fees unpaid.
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Court.20 The Armstrongs also fail to cite any support for their claim that responding to a FOIA
request somehow created a contract. Appellants “may not merely announce [their] position and
leave it to this Court to discover and rationalize the bases for [their] claims, nor may [they] give
issues cursory treatment with little or no citation of supporting authority.”21 The Armstrongs’
“failure to properly address the merits of [their] assertion of error constitutes abandonment of the
issue.”22
Affirmed.
/s/ Michael J. Talbot
/s/ Kurtis T. Wilder
/s/ Karen M. Fort Hood
20
Polkton Charter Twp v Pellegrom, 265 Mich App 88, 104; 693 NW2d 170 (2005).
21
Houghton ex rel Johnson v Keller, 256 Mich App 336, 339; 662 NW2d 854 (2003).
22
Id. at 339-340.
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