Ditech Financial LLC v. Robert Randazzo

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
DITECH FINANCIAL LLC, UNPUBLISHED
September 17, 2019
Plaintiff-Appellant,
v No. 344713
Macomb Circuit Court
ROBERT RANDAZZO, LC No. 2017-002437-PD
Defendant-Appellee.
Before: SHAPIRO, P.J., and GLEICHER and SWARTZLE, JJ.
PER CURIAM.
Plaintiff filed a claim-and-delivery action seeking to recover possession of a mobile
home, alleging that defendant defaulted on the payments. Because the debt related to the mobile
home was discharged in a Chapter 7 bankruptcy, plaintiff sought only possession of the mobile
home, not a monetary judgment. The trial court granted defendant’s motion for summary
disposition, ruling that plaintiff’s action was barred by the four-year limitations period contained
in Article 2 of Michigan’s Uniform Commercial Code (UCC), MCL 440.2735. Because all of
plaintiff’s arguments on appeal are either waived or unpreserved, we affirm.
I. BACKGROUND
On June 19, 2017, plaintiff filed a claim-and-delivery action against defendant, seeking to
recover possession of a mobile home. Plaintiff alleged that it loaned defendant $55,285 on
January 30, 1998; that defendant agreed to repay the money in monthly installments; and that
defendant granted plaintiff a security interest in a certain mobile home as collateral for the loan.
Plaintiff’s complaint did not specifically allege that defendant was in default under the
agreement, and did not allege a date or event giving rise to its cause of action. Although plaintiff
acknowledged that defendant filed a bankruptcy action, plaintiff alleged that its lien was not
discharged in the bankruptcy and that it retained the ability to enforce the lien by repossessing
the collateral. Plaintiff requested that the trial court enter an order awarding it possession of the
mobile home.
Defendant filed a motion for summary disposition of plaintiff’s claims under MCR
2.116(C)(5) (capacity to sue) and (7) (statute of limitations). Defendant argued that a mobile
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home was a “good” under Michigan’s UCC and that the four-year limitations period for claims
involving breach of any contract for the sale of goods barred plaintiff’s action, citing MCL
440.2725. Defendant alleged that his “filing bankruptcy constituted a breach of the contract for
the sale of the mobile home” and that, because plaintiff filed the circuit court action five years
after the bankruptcy was concluded, its claim was barred by the expiration of the four-year
limitations period.
In its brief opposing defendant’s motion for summary disposition, plaintiff argued that
Michigan’s UCC did not apply to this case at all, that the Mobile Home Commission Act
(MHCA), MCL 125.2301 et seq., governed the running of the limitations period, and that the
MHCA provided a six-year limitations period that applied to its claim. In that brief, defendant
stated that the application of the UCC in this case was “manifestly incorrect” because the MHCA
governed the matter. Plaintiff raised no argument in its brief opposing defendant’s motion that
the applicable limitations period was found in either Article 3 or 9 of Michigan’s UCC, did not
describe when its cause of action allegedly accrued, and raised no argument that its action was
timely even if a four-year limitations period applied.
At oral argument on defendant’s motion for summary disposition, plaintiff continued to
insist that Michigan’s UCC did not apply to this case at all, and that the MHCA controlled this
case. At the oral argument, plaintiff never provided a statutory citation for what portion of the
MHCA purportedly contained a six-year statute of limitations,1 never argued that the applicable
limitations period was found in either Article 3 or 9 of Michigan’s UCC, did not take a position
regarding when its cause of action accrued, and never argued that its action was timely even if a
four-year limitations period applied.
In response to questioning from the trial court, plaintiff’s counsel apparently conceded
that, if the UCC did control in this case, rather than the MHCA, then a four-year limitations
period applied to this action:
[Defense counsel]: . . . And this is just like a car. The UCC applies. The
security interest that they’re trying to bring this action based on requires that the
four year statute of limitations apply.
The Court: [Plaintiff’s counsel], what’s your response to that? I mean
you can call it a claim and delivery [action], but if you are seeking to foreclose on
a piece of security that does come under the UCC, no matter what you call it, it
would still be looking at a four year statute, would we not?
[Plaintiff’s counsel]: We, if it was under UCC. But it’s our position
entirely this does not fall under UCC, it falls under the MHCA. And it’s very
clear, Your Honor, that it falls under, this is a mobile home and it’s governed by
that provision, not the UCC. [Emphasis added.]
1
Plaintiff subsequently conceded that the MHCA provides a three-year limitations period. See
MCL 125.2333.
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The trial court granted defendant’s motion for summary disposition, concluding that the
four-year limitations period contained in Article 2 of Michigan’s UCC, MCL 440.2725, applied
to plaintiff’s claim and that the action was barred because the limitations period expired before
plaintiff filed its lawsuit.
Plaintiff subsequently filed a motion for reconsideration from the trial court’s decision
granting defendant’s motion for summary disposition. In that motion for reconsideration,
plaintiff conceded, for the first time, that Michigan’s UCC did apply to this case—but argued
that Article 3 of Michigan’s UCC applied, rather than Article 2 as determined by the trial court.
Plaintiff argued—for the first time—that the underlying contract involved in this case was a
negotiable instrument covered by Article 3 of the UCC and that the six-year limitations period
contained in Article 3 therefore applied. Plaintiff also argued—for the first time—that even if a
four-year statute of limitations applied to this case, that limitations period had not yet expired.
Plaintiff did not argue in its motion for reconsideration that Article 9 of the UCC applied.
The trial court denied plaintiff’s motion for reconsideration, and this appeal followed.
II. ANALYSIS
Plaintiff first argues that the trial court applied the incorrect limitations period to this case
and that either Article 3 or 9 of the UCC applies to this case, rather than Article 2, as determined
by the trial court.
“Waiver has been defined as the intentional relinquishment or abandonment of a known
right” and one who “waives his rights under a rule may not then seek appellate review of a
claimed deprivation of those rights, for his waiver has extinguished any error.” People v Carter,
462 Mich 206, 215; 612 NW2d 144 (2000) (cleaned up). In its trial-court brief opposing
defendant’s motion for summary disposition, plaintiff argued that it was “manifestly incorrect”
to apply the UCC to determine the limitations period applicable to its claim-and-delivery action.
At oral argument on that motion, plaintiff continued to insist that the UCC did not apply to this
case. Therefore, plaintiff has affirmatively waived its current argument that the six-year
limitations period found in either Article 3 or Article 9 of the UCC applies to this case.
Moreover, plaintiff waived this argument, in a second and distinct manner, at oral
argument on defendant’s motion for summary disposition. The trial court asked defense counsel
whether they were “looking at a four year statute,” to which defense counsel responded “if it was
under the UCC.” We interpret defense counsel’s statement at oral argument as an express
acknowledgement that, if the UCC applies to this case, the applicable limitations period is four
years. Therefore, plaintiff has affirmatively waived its current argument that the six-year
limitations period found in either Article 3 or Article 9 of the UCC applies to this case.
Plaintiff next argues that, even if the four-year limitations period set forth in Article 2 of
the UCC applies in this case, this action is not time-barred because the four-year period has not
yet run. Plaintiff argues that (1) claims on an installment contract accrue as each installment
falls due; (2) defendant continued to make payments on the installment contract, even after the
federal bankruptcy court discharged the debt related to the purchase of the mobile home; and (3)
even if the four-year limitations period does apply, it was revived with each of defendant’s
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installment payments, and its cause of action therefore did not accrue until defendant’s last
voluntary payment on October 26, 2016.
Because plaintiff did not raise these arguments until its trial-court motion for
reconsideration, these arguments are unpreserved. “Where an issue is first presented in a motion
for reconsideration, it is not properly preserved.” Vushaj v Farm Bureau Gen Ins Co of Mich,
284 Mich App 513, 519; 773 NW2d 758 (2009). Appellate consideration of unpreserved claims
of error is disfavored, People v Frazier, 478 Mich 231, 241; 733 NW2d 713 (2007), and we
decline to address plaintiff’s unpreserved claims of error in this case.
Affirmed. Defendant, having prevailed in full, may tax costs under MCR 7.219(F).
/s/ Douglas B. Shapiro
/s/ Elizabeth L. Gleicher
/s/ Brock A. Swartzle
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