Cheff v. Bank of the Commonwealth

Memorandum Opinion. The trial court granted defendant’s motion for summary judgment and plaintiffs appeal.

GCR 1963, 117.2(3) authorizes summary judgment when there is no genuine issue as to any material fact. Plaintiffs’ claim that their unrecorded mortgage was entitled to priority over defendant’s mortgage would be proved by a finding that defendant had actual knowledge of plaintiffs’ mortgage before defendant took its mortgage. The issue of defendant’s actual knowledge is disputed on this record and summary judgment was improper.

Reversed and remanded for trial with costs to plaintiffs.