DocketNumber: Docket No. 297353
Citation Numbers: 297 Mich. App. 271
Judges: Borrello, Meter, Shapiro
Filed Date: 7/3/2012
Status: Precedential
Modified Date: 9/9/2022
ON REMAND
This case, involving a nonjudicial foreclosure by advertisement, is before us on remand from the Supreme Court, which vacated our prior opinion and remanded for reconsideration in light of Residential Funding Co, LLC v Saurman, 490 Mich 909 (2011). Richard v Schneiderman & Sherman, PC, 490 Mich 1001 (2012). We now affirm.
In both Saurman and this case, Homecomings Financial Network, Inc., made the underlying loan. Also in both cases, Homecomings was designated as the lender on the underlying note and as the lender, but not the mortgagee, on the mortgage. Mortgage Electronic Registration Systems, Inc. (MERS) was listed as the mort
Plaintiff also argues that the trial court erred by failing to rule on his motion to amend the complaint after the court granted defendants’ motion for summary disposition. Plaintiff primarily claims that a court clerk misinformed him by stating that the court would not hear the motion to amend in light of the summary disposition ruling; in reliance on the clerk’s statement, plaintiff states that he failed to appear for a hearing at which the court would have addressed his motion. Significantly, plaintiff did not raise these claims of error before the trial court. He did not request a ruling on his motion to amend at the March 26, 2010, hearing on defendants’ motion for summary disposition. He also failed to challenge the factual or legal correctness of the clerk’s assertion that the motion would not be considered. Accordingly, plaintiff did not preserve his arguments for appeal and our review is for plain error. Duray Dev, LLC v Perrin, 288 Mich App 143, 149-150; 792 NW2d 749 (2010). “Plain error occurs at the trial court level if (1) an error occurred (2) that was clear or obvious and (3) prejudiced the party, meaning it affected the outcome of the lower court proceedings.” Id. at 150. In this case, even if we accept, for purposes of argument, that clear errors attributable to the court resulted in the court’s failure to hear plaintiffs motion to amend the complaint, reversal is not required because plaintiff has not shown that he was prejudiced.
In his original complaint, plaintiff centrally claimed that defendants’ debt collection and foreclosure proceedings against him were flawed because defendants
Plaintiff does not challenge the trial court’s ruling under MCR 2.116(C)(10). Rather, as is most significant to plaintiffs arguments on appeal, plaintiff moved to amend his complaint in order to add new claims and supply detail with regard to his original claims. He correctly observes that, pursuant to MCR 2.116(I)(5), “[i]f the grounds asserted [in support of summary
In this case, amendment would have been futile. Plaintiffs proposed amended complaint primarily expanded his argument that defendants violated RESPA and the FDCPA by failing to provide the original promissory note and other documents or information requested by plaintiff. But the trial court had already determined that plaintiff had failed to support these claims, and the additions to plaintiffs proposed amended complaint concerning these claims were essentially identical to the arguments he had advanced in opposition to defendants’ motion for summary disposition.
To the extent plaintiff added other discernable claims not entirely dependent on the success of the RESPA and FDCPA claims, he newly asserted that defendant Schneiderman & Sherman, EC. (Schneiderman) had violated MCL 600.3208
In sum, most of the contents of plaintiffs proposed amended complaint were subject to dismissal under MCR 2.116(C)(10) for the same reasons his original complaint was subject to dismissal. Plaintiffs new claims were similarly subject to dismissal under this rule because he offered no documentary evidence in support of them that would have been sufficient to challenge defendants’ otherwise unrebutted evidence at trial. Accordingly, amendment of the complaint would have been futile. For this reason, plaintiff was not
Given that plaintiff has not shown that he was prejudiced because the outcome of the proceedings likely would have been different absent any error, there is no plain error justifying reversal. Duray Development, 288 Mich App at 150.
Affirmed.
See MRE 1003 (“A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.”).
The pertinent portion of MCL 600.3208 states, “In every ease within 15 days after the first publication of the notice, a true copy shall be posted in a conspicuous place upon any part of the premises described in the notice.”