• Banking (1)
• Civil Rights (2)
• Constitutional Law (1)
• Contracts (1)
• Criminal Law (3)
• Employment & Labor Law (1)
• Immigration (1)
• Insurance (1)
• Litigation (2)
• Negligence & Intentional Tort (1)
• Real Property (3)
• Termination of Parental Rights (1)

Banking

 

This summary also appears under Real Property

 

Issues: Foreclosure proceedings; Whether the plaintiffs' case was barred by res judicata; Whether plaintiffs' claims could have been raised in the district court; Whether defendant-US Bank could be held liable for plaintiffs' breach of contract claim; Whether plaintiffs had "standing" to pursue their quiet title claim after the redemption period expired; Whether defendant was entitled to summary disposition; Adams v. Adams; Auto Club Group Ins. Co. v. Burchell; Electrolines, Inc. v. Prudential Assurance Co.; Whether a contract existed; Pakideh v. Franklin Commercial Mtg. Group, Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Motta v. Universal Mtg. Corp.

e-Journal Number: 53816

Judge(s): Per Curiam - Ronayne Krause, Cavanagh, and Boonstra

 

The court held, inter alia, that in light of the trial court's proper resolution of the dispositive contract issue, it did not need to consider the trial court's alternate reasons for dismissing the case (that res judicata barred the case and that plaintiffs lacked standing). Thus, the court affirmed the trial court's order granting defendant-US Bank summary disposition and dismissing plaintiffs' complaint challenging foreclosure proceedings. Plaintiffs executed a mortgage in favor of defendant-Universal Mortgage on 10/21/05 regarding a particular property. It appeared from the record that the last mortgage payment they made on the property was 10/5/09. By letter dated 10/13/09, Universal notified plaintiffs that they were in default on their mortgage by $4,328.85 and "only the full amount of the delinquency will cure the default." Plaintiffs requested information on the "FNMA Loss Mitigation Programs" and by letter dated 11/9/09, Universal detailed the necessary information required for processing a request for such relief. Plaintiffs were notified by Universal by letter dated 2/2/10 that it determined that it was unable to offer them any relief under these programs because your "income is insufficient to support a repayment plan under the Formal Forbearance Program, nor support any regular monthly payment under the Home Saver Advance." The letter also stated - "At this time, we are preparing your loan for legal action." Later, plaintiffs were notified by Universal's debt collector that "the creditor elected to accelerate the total indebtedness." The letter also advised that reinstatement of the mortgage was "possible" if past due payments and other costs and fees were received before the sheriff's sale. Plaintiffs requested a reinstatement amount and Universal wrote back that "after reviewing your loss mitigation package you have qualified for FNMA's Home Saver Advance program." Plaintiffs were advised to sign and return a Truth-In-Lending Disclosure Statement and Promissory Note, and remit $1,650.57 for outstanding fees and costs by 3/29/10. It appeared that they mailed a check dated 4/1/10 to Universal in the amount of $1,119.43. Thus, the check was neither timely nor for the correct amount. There was no record evidence that the necessary documents were sent to Universal. Plaintiffs' uncashed check was returned and Universal notified them that "it had not received the properly signed documents from you and we have no other option than to continue the foreclosure process on your property." On 4/10/10, the property was sold at a sheriff's sale to Universal. Later, Universal quitclaimed the property to Fannie Mae. The redemption period expired on 10/21/11, without plaintiffs redeeming the property. Then, they filed their complaint against US Bank and Universal. Plaintiffs contended, inter alia, that their breach of contract claim was not barred by res judicata. Apparently, they believed that the foreclosure action was improper because they were notified by Universal that they qualified for the Home Saver Advance loan. They construed this notification as a "contract" that prevented the foreclosure proceedings. However, even if Universal's notification was considered an "offer," the evidence was plain that they did not accept the offer because their check was neither timely nor written in the correct amount and it was undisputed that they did not submit the required "properly signed" documents. Thus, no contract was formed. Affirmed.

 

Civil Rights

 

This summary also appears under Employment & Labor Law

 

Issues: Allegations of discrimination, harassment, and retaliation under the Elliott-Larsen Civil Rights Act (ELCRA)(MCL 37.2101 et seq.) and the Persons with Disabilities Civil Rights Act (PWDCRA)(MCL 37.1201 et seq.); Whether a prior settlement agreement (SA) constituted a release; Whether the release barred the claims at issue; Joseph v. Auto Club Ins. Ass'n; Contract interpretation; Reicher v. SET Enters., Inc.; Quality Prods. & Concepts Co. v. Nagel Precision, Inc.; Wilkie v. Auto-Owners Ins. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Sanders v. Department of Corr.

e-Journal Number: 53876

Judge(s): Per Curiam – Owens, Fitzgerald, and Riordan

 

Because plaintiff's complaint presented the civil rights claims she released and waived in a prior SA, the court held that the trial court properly granted summary disposition in favor of defendant. Plaintiff alleged that defendant discriminated against her within the meaning of the PWDCRA when it reduced the amount of hours that she worked. She also claimed that defendant's actions constituted harassment within the meaning of the ELCRA. Defendant argued that the 8/11/10 SA between the parties constituted a valid release and waiver of plaintiff's right to pursue the complaint. Plaintiff claimed that the release did not bar the claims at issue. The totality of her argument was that the plain language of the SA "provides that the disciplinary action would be resolved by a written reprimand and plaintiff would file no lawsuits with regard to the discipline" - the written reprimand - she received. However, the court concluded that such an interpretation ignored the plain language of paragraph 2. "This plain and unambiguous language, when read as a whole, reveals that plaintiff clearly released and waived 'any federal or state civil rights claims, and violations of state and federal constitution and/or statutory rights as well as other legal claims she may have had arising out of her employment with her Employer, limited to this matter.'" The parties agreed that "this matter" referred to the disciplinary matter that was the subject of this lawsuit. Thus, the SA encompassed the issues involved with her disciplinary matter - "her objection to part time, her 'handicapped' status, her 'flexible' work schedule, her stress level and health, her son's disabilities," her supervisor's alleged harassment, and other alleged violations of her "civil rights." All of these issues were raised by her as explanations for her actions and as a defense to the allegations that she violated defendant's work rules. The SA showed the parties' intent that the release and waiver provision extended to all potential suits connected or associated with the disciplinary action and was not limited solely to suits concerning the actual discipline imposed. As the trial court noted, "her claims of harassment, flexibility in her schedule, not accommodating her handicap, all those things were part of the issues and the time frame that involved the period when she was making these complaints, when she was not following the schedule because of those factors, and when there was a threat of disciplinary action being taken, and then there was an EEOC complaint." Affirmed.

 

This summary also appears under Constitutional Law

 

Issues: Civil rights violation; 42 USC § 1983; Search and seizure; U.S. Const. amend. IV; Warrantless entry; Search and seizure inside a home; Payton v. New York; Groh v. Ramirez; Brigham City v. Stuart; Flippo v. West Virginia; "Exigent circumstances"; Kentucky v. King; Mincey v. Arizona; Ewolski v. City of Brunswick; Scott v. United States; Medical emergencies; Michigan v. Fisher; Thacker v. City of Columbus; Johnson v. City of Memphis; Brooks v. Rothe; The need for the search; Duration and scope of the search; Search for clues in medical emergencies; McKenna v. Edgell; "Probable cause" to support an arrest; Crockett v. Cumberland Coll.; Baker v. McCollan; Michigan v. DeFillippo; Estate of Deitrich v. Burrow; Resisting and obstructing; MCL 750.81d(1); People v. Moreno; "Excessive force"; Graham v. Connor; Scott v. Harris; Miller v. Sanilac Cnty.; Pointing a taser gun and using a pressure hold; Shreve v. Jessamine Cnty. Fiscal Court; Whether a plaintiff can succeed on a conspiracy claim where there is no underlying constitutional violation causing injury; Wiley v. Oberlin Police Dep't (Unpub. 6th Cir.); Malicious prosecution; Fox v. DeSoto

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Stricker v. Township of Cambridge

e-Journal Number: 53674

Judge(s): Keith, Martin, and Rogers

 

The court held that the district court properly granted summary judgment for defendants on plaintiffs' § 1983 claims because exigent circumstances justified the police actions taken against them. Plaintiffs sued defendants alleging civil rights violations in connection with the police response to a 911 call they made on behalf of their son, who was suffering from an apparent drug overdose. The district court granted summary judgment for defendants, finding that exigent circumstances justified all of the police's actions. On appeal, the court rejected plaintiffs' argument that the district court erred in dismissing their claims because reasonable minds could differ as to the existence of exigent circumstances. The court held that the combination of the 911 call soliciting help for a drug overdose, the police's independent knowledge and observations confirming the reported overdose, and plaintiffs' attempts to prohibit access to their son despite their initial call for help made it objectively reasonable for the officers to believe that their son was overdosing on drugs and was in need of immediate medical evaluation and attention. As to the duration and scope of the search, the court concluded that while the "scope of the search under these facts makes the issue a close one," the search "was objectively reasonable." It noted that the officers were justified in looking for plaintiffs' son and in conducting a protective sweep to secure the premises so the paramedics could safely treat the son. It also found that the search of drawers was justified as police searched for clues as to what the son may have ingested in order to assist EMS in treating him. The court also held that there were sufficient facts for the officers to reasonably believe that plaintiffs had knowingly failed to comply with their lawful commands in order to provide probable cause for their arrest. It further concluded that the force used by the officers was not excessive given plaintiffs' attempts to evade and flee arrest. Finally, the court held that because there was no Fourth Amendment violation, there could be no conspiracy claim based on defendants' acts. Affirmed.

 

Constitutional Law

 

This summary also appears under Civil Rights

 

Issues: Civil rights violation; 42 USC § 1983; Search and seizure; U.S. Const. amend. IV; Warrantless entry; Search and seizure inside a home; Payton v. New York; Groh v. Ramirez; Brigham City v. Stuart; Flippo v. West Virginia; "Exigent circumstances"; Kentucky v. King; Mincey v. Arizona; Ewolski v. City of Brunswick; Scott v. United States; Medical emergencies; Michigan v. Fisher; Thacker v. City of Columbus; Johnson v. City of Memphis; Brooks v. Rothe; The need for the search; Duration and scope of the search; Search for clues in medical emergencies; McKenna v. Edgell; "Probable cause" to support an arrest; Crockett v. Cumberland Coll.; Baker v. McCollan; Michigan v. DeFillippo; Estate of Deitrich v. Burrow; Resisting and obstructing; MCL 750.81d(1); People v. Moreno; "Excessive force"; Graham v. Connor; Scott v. Harris; Miller v. Sanilac Cnty.; Pointing a taser gun and using a pressure hold; Shreve v. Jessamine Cnty. Fiscal Court; Whether a plaintiff can succeed on a conspiracy claim where there is no underlying constitutional violation causing injury; Wiley v. Oberlin Police Dep't (Unpub. 6th Cir.); Malicious prosecution; Fox v. DeSoto

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Stricker v. Township of Cambridge

e-Journal Number: 53674

Judge(s): Keith, Martin, and Rogers

 

The court held that the district court properly granted summary judgment for defendants on plaintiffs' § 1983 claims because exigent circumstances justified the police actions taken against them. Plaintiffs sued defendants alleging civil rights violations in connection with the police response to a 911 call they made on behalf of their son, who was suffering from an apparent drug overdose. The district court granted summary judgment for defendants, finding that exigent circumstances justified all of the police's actions. On appeal, the court rejected plaintiffs' argument that the district court erred in dismissing their claims because reasonable minds could differ as to the existence of exigent circumstances. The court held that the combination of the 911 call soliciting help for a drug overdose, the police's independent knowledge and observations confirming the reported overdose, and plaintiffs' attempts to prohibit access to their son despite their initial call for help made it objectively reasonable for the officers to believe that their son was overdosing on drugs and was in need of immediate medical evaluation and attention. As to the duration and scope of the search, the court concluded that while the "scope of the search under these facts makes the issue a close one," the search "was objectively reasonable." It noted that the officers were justified in looking for plaintiffs' son and in conducting a protective sweep to secure the premises so the paramedics could safely treat the son. It also found that the search of drawers was justified as police searched for clues as to what the son may have ingested in order to assist EMS in treating him. The court also held that there were sufficient facts for the officers to reasonably believe that plaintiffs had knowingly failed to comply with their lawful commands in order to provide probable cause for their arrest. It further concluded that the force used by the officers was not excessive given plaintiffs' attempts to evade and flee arrest. Finally, the court held that because there was no Fourth Amendment violation, there could be no conspiracy claim based on defendants' acts. Affirmed.

 

Contracts

 

This summary also appears under Litigation

 

Issues: Plaintiff-former employee's claim that the defendant-City breached a contract by not extending his retirement as allegedly agreed and depriving him of benefits; Summary disposition under MCR 2.116(C)(10); Odom v. Wayne Cnty.; Making a finding of fact when deciding a summary disposition motion; Jackhill Oil Co. v. Powell Prod., Inc.; Whether summary disposition was premature because discovery was incomplete; Prysak v. R L Polk Co.; Michigan Nat'l Bank v. Metro Institutional Food Serv., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Fields v. City of Detroit

e-Journal Number: 53881

Judge(s): Per Curiam – Talbot, Jansen, and Meter

 

Holding that it was improper for the trial court to determine that there was no contract and that the payroll checks were not evidence of an agreement to extend the plaintiff's retirement date, the court reversed the trial court's order granting the defendant-City summary disposition and remanded the case. Plaintiff chose to retire as a deputy police chief on 11/21/09, and signed the paperwork on 11/30/09. He alleged that he met with a City retirement specialist and signed a document electing to roll 25% of his accrued sick time into his pension. He also alleged that, on 1/7/10, he received a phone call from the City's payroll department, asking him to modify his retirement date to use his accrued vacation time, making his retirement effective as of 2/11/10. He received regular paychecks with regular deductions until 1/15/10. He asserted that when he contacted the City about the missing checks, he was told that there was no agreement to extend his retirement, he would receive a lump-sum payout for his remaining vacation time, and he was not eligible to roll 25% of his sick time into his pension. On 1/15/10, a proposal to allow non-union police employees to roll 25% of their accrued sick time into their pensions was approved. Plaintiff alleged, inter alia, that the City breached the contract by not extending his retirement to 2/11/10, thus depriving him of the ability to roll 25% of his accrued sick time into his pension, and other benefits. The trial court "found that the payroll checks were just for vacation time and not evidence of an agreement to extend plaintiff's retirement date" thus, he was not an employee on 1/15/10 and was not entitled to roll his accrued sick time into his pension. "The trial court was not permitted to make such a finding of fact when deciding a summary disposition motion." The court also concluded that summary disposition was premature because discovery was incomplete. Plaintiff argued in his response to the City's summary disposition motion that the City had not responded to his discovery requests. There was no indication in the trial court file that the City ever responded to his interrogatories, and no deposition testimony was attached to either party's summary disposition motion or supporting brief. "Plaintiff provided evidence that, in accordance with the alleged modification of the agreement, he received regular payroll checks despite the fact that the City's employee manual required it to make a lump-sum payment for unused vacation time rather than continue regular payroll disbursements. This was independent evidence of a modification of the contract." Further, the court concluded that he "stood a fair chance of uncovering factual support for his claim."

 

Criminal Law

 

Issues: Whether the trial court properly allowed the jurors to ask questions of the witnesses at trial; People v. Cameron; MCR 2.513(I); People v. Heard; Whether the procedure should be allowed in Michigan; State v. Costello (MN); People v. Jackson; People v. Metamora Water Serv.; People v. Carines; Ineffective assistance of counsel; People v. Petri; People v. Horn; People v. Ginther; People v. Garza; People v. Yost; Miranda v. Arizona; People v. Shafier; Dickerson v. United States; People v. Cheatham; The "public safety" exception; New York v. Quarles; Futile objections; People v. Ericksen; Factual predicate; People v. Hoag; People v. Toma; Evidence of flight; People v. Unger; Whether the trial court properly denied defendant's motion for a mistrial despite evidence that a juror shared with the rest of the panel that a hung jury would result in a new trial before a different jury; People v. Shaw; Whether the trial court properly ordered defendant's sentence for his third-degree fleeing and eluding conviction to run consecutively to his felony-firearm sentence; People v. Brown; People v. Clark

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Jefferson

e-Journal Number: 53825

Judge(s): Per Curiam - Sawyer, Markey, and M.J. Kelly

 

Rejecting the defendant's claim that the trial court violated his right to due process by permitting the jurors to ask questions of the trial witnesses, the court held, inter alia, that Michigan law permits jurors to ask questions of trial witnesses and the record did not show that any of the questions in this case were improper under Michigan law. Thus, defendant failed to establish plain error affecting his substantial rights. On a night in 3/11, defendant drove a white car to the victim's house. His friend (N) rode in the passenger seat. Defendant and N were the only occupants of the car. The victim was hosting a party at her house. As defendant drove by the victim's house, multiple shots were fired from his car, one of which struck the victim in the abdomen. He then sped away. Police officers in the area heard the gunshots and saw defendant speeding away. They activated their sirens and lights, but defendant continued the high speed chase through a residential neighborhood. He eventually stopped the car and he and N fled on foot. They were apprehended a short time later. Officer L interviewed defendant at the police station after defendant waived his Miranda rights. The police recovered a handgun from the scene of their apprehension, multiple spent cartridge casings from the scene of the shooting, one bullet from the victim's body, and a second bullet from the victim's front porch. The evidence was sent for testing. Defendant claimed "as matter of law reform" the practice of permitting the jurors to ask questions of trial witnesses should stop, relying on Costello. The court noted that it was not bound by cases from other states but was bound by Michigan cases, such as the Supreme Court's decision in Heard. The court also held that the other issues he raised on appeal had no merit, and affirmed his convictions and sentences, except the court remanded to correct the judgment of sentence to reflect that his sentence for third-degree fleeing and eluding is to run concurrently with his sentence for felony-firearm.

 

Issues: Sentencing; Whether the trial court provided "substantial and compelling" reasons to justify its upward departure from the sentencing guidelines range; People v. Anderson; People v. Akhmedov; People v. Petri; People v. Solmonson; Whether the factor concerning defendant being "a public danger" was objective and verifiable; People v. Horn; The extent of the victim's injuries; Whether the trial court "inflated" the scoring of OV 12; Waiver; People v. Fonville; People v. Osantowski; Assault with intent to do great bodily harm less than murder (AWIGBH)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Otagba

e-Journal Number: 53865

Judge(s): Per Curiam – Talbot and Meter; Dissent - Jansen

 

Concluding, inter alia, that the facts on the record did not support the trial court's inference that the defendant exploited the victim and invited her into a position of danger, the court held that the trial court clearly erred in relying on this factor as a substantial and compelling reason for departing from the guidelines range. Further, the trial court clearly erred in relying on its conclusion that defendant was a danger to society to justify its upward departure. Because it was not apparent from the record whether the trial court would have departed to the same degree as it did without relying on the factors the court rejected, the court remanded the case for resentencing or rearticulation of the substantial and compelling reasons for departing from the guidelines. Defendant was convicted of AWIGBH. His central argument on appeal was that the trial court did not provide substantial and compelling reasons to justify its upward departure from the guidelines range. The court agreed that some of the reasons the trial court relied on were improper. Defendant argued that the placing the victim in danger factor did not exist on the record and was not objective and verifiable. The trial court looked to three pieces of information from which it drew inferences that led it to conclude that defendant invited the victim into a position of danger - (1) he was the brother of the victim's close friend, (2) he offered to help her find her gun, and (3) he invited her to come back to his mother's house to look for the gun. From this information, the trial court inferred that the victim felt as though she was in a position of safety in returning to the house to look for her gun, and, the trial court seemed to indicate, defendant took advantage of this to put her in a position of danger. Based on the victim's testimony that defendant pulled her gun "from . . . his hip" and based on B's testimony that defendant did not own his own gun, it could reasonably be inferred that defendant knew he had the gun the victim was looking for when she telephoned B. However, because the victim presented uncontested evidence that he did not assault her until after a fight broke out and someone began shooting at his mother's home, it was simply not reasonable to infer that defendant exploited the victim and invited her into a position of danger. The evidence did not support an inference that he invited her to the home with the intent to harm her. Her testimony indicated that he had initially been "helpful." If he did not intend to harm the victim when he invited her to the house, it was "difficult to see how defendant intentionally exploited the victim and put her in a position of danger." However, the court held that it was not unreasonable for the trial court to conclude that the guidelines did not adequately account for the victim's severe injuries and extensive tooth damage.

 

Issues: Sentencing; Scoring of OVs 1, 2, 6, 10, 13, and 19; People v. Osantowski; Reliance on the information in the PSIR; People v. Grant; Consideration of the defendant's conduct after the completion of the offense in scoring OV 19; People v. Barbee; Upward departure from the guidelines; "Substantial and compelling" reasons to support the extent of a departure; People v. Babcock; People v. Smith

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Schwander

e-Journal Number: 53864

Judge(s): Per Curiam – Hoekstra and Shapiro; Dissent – Cavanagh

 

The court rejected the defendant's challenges to the trial court's scoring of several of the OVs, and held that his betrayal of the 16-year old victim's (L) family and his failure to summon medical help were objective and compelling reasons justifying some degree of upward departure from the guidelines. However, the court concluded that the trial court did not articulate why those reasons justified imposing a minimum sentence nearly double the highest minimum sentence under the guidelines. Thus, the court remanded the case to the trial court to articulate why the factors it cited justified the extent of the departure, or for resentencing. The court retained jurisdiction and issued an order concurrently with its opinion setting a schedule for proceedings on remand. Defendant murdered L in an abandoned building where defendant was living. He had lived in L's mother's house until told to leave. The court held, inter alia, that the trial court did not err in scoring 25 points for OV 1 because its conclusion that defendant possessed and used a stabbing weapon to inflict injuries to L was not clearly erroneous. As to OV 10, the court noted that L was 5'2" tall, defendant was 6' tall, he isolated L by bringing her into an abandoned building, gave her marijuana, "and then overpowered her with his physical strength allowing him to choke and stab her." The evidence supported scoring OV 10 at 5 points. The court also held that the evidence supported the 25-point score for OV 13 based on defendant's on-going sexual relationship with a girl under the age of 16, constituting CSC III. However, the court noted that the 40-year minimum sentence the trial court imposed was "an extraordinary departure" where the highest minimum term the guidelines allowed was 22 1/2 years. The trial judge emphasized that a guideline sentence was inadequate because he did not believe he would still be on the bench when defendant became eligible for parole, so it would be up to his successor to bar parole if the parole board elected to grant it. He stated, "[t]hat's having more faith in the process than I really care to have." The court held that this was not a proper basis to depart from the guidelines. "A court may not impose a longer minimum sentence simply to deprive the parole board of jurisdiction; nor may it impose a sentence intended to prevent a successor judge from making whatever determination he or she believes is appropriate years or even decades from now." While the trial court offered two reasons that properly justified a departure, it did not provide an analysis as to how they justified the extent of its departure.

 

Employment & Labor Law

 

This summary also appears under Civil Rights

 

Issues: Allegations of discrimination, harassment, and retaliation under the Elliott-Larsen Civil Rights Act (ELCRA)(MCL 37.2101 et seq.) and the Persons with Disabilities Civil Rights Act (PWDCRA)(MCL 37.1201 et seq.); Whether a prior settlement agreement (SA) constituted a release; Whether the release barred the claims at issue; Joseph v. Auto Club Ins. Ass'n; Contract interpretation; Reicher v. SET Enters., Inc.; Quality Prods. & Concepts Co. v. Nagel Precision, Inc.; Wilkie v. Auto-Owners Ins. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Sanders v. Department of Corr.

e-Journal Number: 53876

Judge(s): Per Curiam – Owens, Fitzgerald, and Riordan

 

Because plaintiff's complaint presented the civil rights claims she released and waived in a prior SA, the court held that the trial court properly granted summary disposition in favor of defendant. Plaintiff alleged that defendant discriminated against her within the meaning of the PWDCRA when it reduced the amount of hours that she worked. She also claimed that defendant's actions constituted harassment within the meaning of the ELCRA. Defendant argued that the 8/11/10 SA between the parties constituted a valid release and waiver of plaintiff's right to pursue the complaint. Plaintiff claimed that the release did not bar the claims at issue. The totality of her argument was that the plain language of the SA "provides that the disciplinary action would be resolved by a written reprimand and plaintiff would file no lawsuits with regard to the discipline" - the written reprimand - she received. However, the court concluded that such an interpretation ignored the plain language of paragraph 2. "This plain and unambiguous language, when read as a whole, reveals that plaintiff clearly released and waived 'any federal or state civil rights claims, and violations of state and federal constitution and/or statutory rights as well as other legal claims she may have had arising out of her employment with her Employer, limited to this matter.'" The parties agreed that "this matter" referred to the disciplinary matter that was the subject of this lawsuit. Thus, the SA encompassed the issues involved with her disciplinary matter - "her objection to part time, her 'handicapped' status, her 'flexible' work schedule, her stress level and health, her son's disabilities," her supervisor's alleged harassment, and other alleged violations of her "civil rights." All of these issues were raised by her as explanations for her actions and as a defense to the allegations that she violated defendant's work rules. The SA showed the parties' intent that the release and waiver provision extended to all potential suits connected or associated with the disciplinary action and was not limited solely to suits concerning the actual discipline imposed. As the trial court noted, "her claims of harassment, flexibility in her schedule, not accommodating her handicap, all those things were part of the issues and the time frame that involved the period when she was making these complaints, when she was not following the schedule because of those factors, and when there was a threat of disciplinary action being taken, and then there was an EEOC complaint." Affirmed.

 

Immigration

 

Issues: Due process in removal proceedings; Lin v. Holder; Hassan v. Gonzales; IJ discretion; 8 CFR § 1003.31(c); Likelihood of persecution upon removal; 8 USC § 1231(b)(3)(A); Vasha v. Gonzales; Almuhtaseb v. Gonzales; Whether a BIA decision as to withholding of removal is manifestly contrary to law; Amir v. Gonzales; Harchenko v. I.N.S; Female genital mutilation (FGM)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Camara v. Holder

e-Journal Number: 53676

Judge(s): Keith, Batchelder, and Martin

 

The court denied petitioners' request for review of the BIA's ruling because they were not denied due process and withholding of removal was not available derivatively. An IJ denied petitioner-Fousseyni Kalle asylum and withholding of removal. Kalle sought relief derivatively through his wife, petitioner-Djelika Camara. Although her asylum application was statutorily barred, she was granted withholding of removal. However, the IJ subsequently found her removable, and the BIA agreed. On appeal, the court rejected petitioners' argument that they were denied due process. First, it held that, based on the undisputed facts, it could not say that the IJ's or the BIA's findings were so fundamentally unfair as to constitute error. The court also could not say that the IJ's failure to advise Kalle to submit his own application was so fundamentally unfair that it amounted to constitutional error, noting that petitioners did not advance any support for the claim that the IJ had the duty to make them aware of any application requirements when they were represented by counsel. Further, the court found that, given that Kalle's individual claim was "raised for the first time . . . on appeal to the Board a second time," it was not so fundamentally unfair as to constitute error for the IJ to decline to extend the deadline for Kalle to submit an individual application. The court also rejected petitioners' argument that Kalle was eligible for withholding of removal as the husband of a victim of FGM, finding that petitioners failed to articulate on which ground Kalle sought protection and, thus, it could not say that the BIA's denial of withholding was manifestly contrary to law.

 

Insurance

 

This summary also appears under Negligence & Intentional Tort

 

Issues: Automobile negligence; Whether the John Deere 710D was a "motor vehicle" for purposes of the motor-vehicle exception to governmental immunity (MCL 691.1405); Poppen v. Tovey; Patterson v. Kleiman; Stanton v. City of Battle Creek; The Governmental Tort Liability Act (MCL 691.1401 et seq.); "Motor vehicle" defined; Regan v. Washtenaw Cnty. Bd. of Cnty. Rd. Comm'rs (On Remand); Whether the trial court properly granted defendant-Farm Bureau's (insurer) motion in limine to exclude claims for expenses incurred after the date plaintiff filed her complaint; Mazzolini v. County of Kalamazoo; MCR 2.613(A); Whether the trial court abused its discretion in denying plaintiff's motions for a mistrial based on alleged juror misconduct; Persichini v. William Beaumont Hosp.; In re Flury Estate; Hunt v. CHAD Enters., Inc.; Motion for a JNOV as to the ambulance bill; Diamond v. Witherspoon; MCL 500.3105(1); "Causation" requirements; Douglas v. Allstate Ins. Co.; Griffith ex rel Griffith v. State Farm Mut. Auto. Ins. Co.; MCL 500.3105; McKim v. Home Ins. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: House v. Farm Bureau Mut. Ins. Co.

e-Journal Number: 53873

Judge(s): Per Curiam – Owens, Fitzgerald, and Riordan

 

The court held, inter alia, that adhering to the mandate that courts must narrowly construe statutory exceptions to governmental immunity and applying the narrow definition of the term "motor vehicle" as set out in Stanton, the submitted evidence in this case indicated that the John Deere 710D was not "an automobile, truck, bus, or similar motor-driven conveyance." Thus, the trial court did not err in granting the defendant-City's motion for summary disposition. The case arose from an accident that occurred when plaintiff's vehicle struck a John Deere 710D front-end loader owned by the City and operated by a City employee. Plaintiff sought PIP benefits from her insurer-Farm Bureau, which denied plaintiff's claim on the basis that her injuries were unrelated to the accident. She subsequently brought this action, asserting among other things, a claim for negligence against the City under the motor-vehicle exception to governmental immunity. Plaintiff argued that the trial court erred in determining that the City was entitled to summary disposition under MCR 2.116(C)(7) because the John Deere 710D was not a motor vehicle for purposes of the motor-vehicle exception to governmental immunity. Unlike the broom tractor and tractor mower at issue in Regan, the John Deere 710D was not "invariably connected" to the roadway. The John Deere 710D in this case was more like the forklift in Stanton, which as the court observed in Regan, had no similar connection or relationship to the road. Although the John Deere 710D can be driven on the road and instructions exist concerning how to do so, it is not intended to be operated on the road, as the broom tractor and tractor mower were. The John Deere 710D is a backhoe to be used for excavation, which happens to be operable on the road. However, its main purpose is to excavate the ground. It is not intended for a purpose associated with a road, such as brushing loose dirt and gravel off the road or mowing grass along the edge of the road, like the broom tractor and tractor mower. The court held that treating the John Deere 710D as a "motor vehicle" would not serve the purpose of MCL 691.1405 to make roadways safe for travel, nor would it comport with the narrow definition of the term "motor vehicle."

 

Litigation

 

This summary also appears under Contracts

 

Issues: Plaintiff-former employee's claim that the defendant-City breached a contract by not extending his retirement as allegedly agreed and depriving him of benefits; Summary disposition under MCR 2.116(C)(10); Odom v. Wayne Cnty.; Making a finding of fact when deciding a summary disposition motion; Jackhill Oil Co. v. Powell Prod., Inc.; Whether summary disposition was premature because discovery was incomplete; Prysak v. R L Polk Co.; Michigan Nat'l Bank v. Metro Institutional Food Serv., Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Fields v. City of Detroit

e-Journal Number: 53881

Judge(s): Per Curiam – Talbot, Jansen, and Meter

 

Holding that it was improper for the trial court to determine that there was no contract and that the payroll checks were not evidence of an agreement to extend the plaintiff's retirement date, the court reversed the trial court's order granting the defendant-City summary disposition and remanded the case. Plaintiff chose to retire as a deputy police chief on 11/21/09, and signed the paperwork on 11/30/09. He alleged that he met with a City retirement specialist and signed a document electing to roll 25% of his accrued sick time into his pension. He also alleged that, on 1/7/10, he received a phone call from the City's payroll department, asking him to modify his retirement date to use his accrued vacation time, making his retirement effective as of 2/11/10. He received regular paychecks with regular deductions until 1/15/10. He asserted that when he contacted the City about the missing checks, he was told that there was no agreement to extend his retirement, he would receive a lump-sum payout for his remaining vacation time, and he was not eligible to roll 25% of his sick time into his pension. On 1/15/10, a proposal to allow non-union police employees to roll 25% of their accrued sick time into their pensions was approved. Plaintiff alleged, inter alia, that the City breached the contract by not extending his retirement to 2/11/10, thus depriving him of the ability to roll 25% of his accrued sick time into his pension, and other benefits. The trial court "found that the payroll checks were just for vacation time and not evidence of an agreement to extend plaintiff's retirement date" thus, he was not an employee on 1/15/10 and was not entitled to roll his accrued sick time into his pension. "The trial court was not permitted to make such a finding of fact when deciding a summary disposition motion." The court also concluded that summary disposition was premature because discovery was incomplete. Plaintiff argued in his response to the City's summary disposition motion that the City had not responded to his discovery requests. There was no indication in the trial court file that the City ever responded to his interrogatories, and no deposition testimony was attached to either party's summary disposition motion or supporting brief. "Plaintiff provided evidence that, in accordance with the alleged modification of the agreement, he received regular payroll checks despite the fact that the City's employee manual required it to make a lump-sum payment for unused vacation time rather than continue regular payroll disbursements. This was independent evidence of a modification of the contract." Further, the court concluded that he "stood a fair chance of uncovering factual support for his claim."

 

This summary also appears under Real Property

 

Issues: Foreclosure by advertisement; Whether the plaintiff lost "standing" to pursue his claims when he filed for bankruptcy; MOSES Inc. v. SEMCOG; 11 USC § 541(a); Young v. Independent Bank; Bauer v. Commerce Union Bank (6th Cir.); Szyszlo v. Akowitz; Sanctions for failing to appear at a pretrial conference; Schell v. Baker Furniture Co.; MCR 2.401(G); MCR 2.313(B)(2); Sanctions for filing a "frivolous" claim; Keinz v. Keinz; MCL 600.2591(1) & (3)(a); MCR 2.625(A)(2); No duty owed by an attorney to an adverse party; Friedman v. Dozorc; Engaging in the practice of law; Dressel v. Ameribank; Motion for reconsideration; MCR 2.119(F)(3); People v. Walters; Sanctions for filing a frivolous appeal; Failure to move for sanctions as required by MCR 7.216(C)(1) & (8); Prentis Family Found. v. Barbara Ann Karmanos Cancer Inst.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Gorbach v. US Bank Nat'l Ass'n

e-Journal Number: 53834

Judge(s): Per Curiam – Sawyer, Markey, and M.J. Kelly

 

Concluding that the record was inadequately developed to properly determine whether the plaintiff lost standing to pursue his claims when he filed for bankruptcy, the court reversed the trial court's order granting the defendants summary disposition and remanded for consideration of this issue. The court affirmed the trial court's imposition of $4,000 in sanctions against plaintiff for bringing frivolous claims against defendant-Canvasser, but reversed the imposition of $2,000 in sanctions for failing to appear at the pretrial conference and remanded for the trial court to reconsider whether plaintiff's counsel's failure to appear was "substantially justified." Plaintiff challenged the foreclosure on his property by advertisement. While he raised several issues, "the initial, and pivotal issue" was whether he had standing to sue. The property was auctioned and sold to defendant-US Bank via sheriff's deed on 2/17/11. Plaintiff filed for Chapter 7 bankruptcy on 6/11/11 and received a discharge from bankruptcy on 10/12/11. He filed the complaint in this case on 8/15/11. "By filing for bankruptcy, all of plaintiff's property - including his wrongful foreclosure claim and negligence claim against defendants - became property of the estate." He was "clearly aware of his potential cause of action against defendants, as the complaint was filed slightly more than two months after he filed for bankruptcy and several months after the sheriff's sale was finished." Since it was the trustee who had standing to sue defendants, plaintiff lacked standing to sue them unless he received permission or exempted the suit from the bankruptcy estate. The standing issue was not explicitly addressed in the trial court, and neither party offered any evidence of record to establish whether the trustee abandoned this asset or whether the bankruptcy court granted him permission. As to the sanctions, the court noted that "it is legally impossible to hold an attorney liable in negligence for conduct towards an adverse party. Further, because Canvasser was not the foreclosing entity, he could not be held liable for wrongful foreclosure." Thus, plaintiff's claims against him were "'devoid of arguable legal merit . . . .'" Plaintiff's counsel asserted that his failure to appear at the pretrial conference was excusable because he reasonably believed, based on statements by the clerk, that all proceedings were under an administrative stay due to the bankruptcy filing. The court concluded that by failing to examine plaintiff's evidence, determine whether he was misinformed by court staff, and decide whether this was a sufficient excuse to preclude sanctions, the trial court erred by failing to exercise its discretion. Affirmed in part, reversed in part, and remanded. The court retained jurisdiction and issued an order concurrently with its opinion, setting a schedule for proceedings on remand.

 

Negligence & Intentional Tort

 

This summary also appears under Insurance

 

Issues: Automobile negligence; Whether the John Deere 710D was a "motor vehicle" for purposes of the motor-vehicle exception to governmental immunity (MCL 691.1405); Poppen v. Tovey; Patterson v. Kleiman; Stanton v. City of Battle Creek; The Governmental Tort Liability Act (MCL 691.1401 et seq.); "Motor vehicle" defined; Regan v. Washtenaw Cnty. Bd. of Cnty. Rd. Comm'rs (On Remand); Whether the trial court properly granted defendant-Farm Bureau's (insurer) motion in limine to exclude claims for expenses incurred after the date plaintiff filed her complaint; Mazzolini v. County of Kalamazoo; MCR 2.613(A); Whether the trial court abused its discretion in denying plaintiff's motions for a mistrial based on alleged juror misconduct; Persichini v. William Beaumont Hosp.; In re Flury Estate; Hunt v. CHAD Enters., Inc.; Motion for a JNOV as to the ambulance bill; Diamond v. Witherspoon; MCL 500.3105(1); "Causation" requirements; Douglas v. Allstate Ins. Co.; Griffith ex rel Griffith v. State Farm Mut. Auto. Ins. Co.; MCL 500.3105; McKim v. Home Ins. Co.

Court: Michigan Court of Appeals (Unpublished)

Case Name: House v. Farm Bureau Mut. Ins. Co.

e-Journal Number: 53873

Judge(s): Per Curiam – Owens, Fitzgerald, and Riordan

 

The court held, inter alia, that adhering to the mandate that courts must narrowly construe statutory exceptions to governmental immunity and applying the narrow definition of the term "motor vehicle" as set out in Stanton, the submitted evidence in this case indicated that the John Deere 710D was not "an automobile, truck, bus, or similar motor-driven conveyance." Thus, the trial court did not err in granting the defendant-City's motion for summary disposition. The case arose from an accident that occurred when plaintiff's vehicle struck a John Deere 710D front-end loader owned by the City and operated by a City employee. Plaintiff sought PIP benefits from her insurer-Farm Bureau, which denied plaintiff's claim on the basis that her injuries were unrelated to the accident. She subsequently brought this action, asserting among other things, a claim for negligence against the City under the motor-vehicle exception to governmental immunity. Plaintiff argued that the trial court erred in determining that the City was entitled to summary disposition under MCR 2.116(C)(7) because the John Deere 710D was not a motor vehicle for purposes of the motor-vehicle exception to governmental immunity. Unlike the broom tractor and tractor mower at issue in Regan, the John Deere 710D was not "invariably connected" to the roadway. The John Deere 710D in this case was more like the forklift in Stanton, which as the court observed in Regan, had no similar connection or relationship to the road. Although the John Deere 710D can be driven on the road and instructions exist concerning how to do so, it is not intended to be operated on the road, as the broom tractor and tractor mower were. The John Deere 710D is a backhoe to be used for excavation, which happens to be operable on the road. However, its main purpose is to excavate the ground. It is not intended for a purpose associated with a road, such as brushing loose dirt and gravel off the road or mowing grass along the edge of the road, like the broom tractor and tractor mower. The court held that treating the John Deere 710D as a "motor vehicle" would not serve the purpose of MCL 691.1405 to make roadways safe for travel, nor would it comport with the narrow definition of the term "motor vehicle."

 

Real Property

 

This summary also appears under Litigation

 

Issues: Foreclosure by advertisement; Whether the plaintiff lost "standing" to pursue his claims when he filed for bankruptcy; MOSES Inc. v. SEMCOG; 11 USC § 541(a); Young v. Independent Bank; Bauer v. Commerce Union Bank (6th Cir.); Szyszlo v. Akowitz; Sanctions for failing to appear at a pretrial conference; Schell v. Baker Furniture Co.; MCR 2.401(G); MCR 2.313(B)(2); Sanctions for filing a "frivolous" claim; Keinz v. Keinz; MCL 600.2591(1) & (3)(a); MCR 2.625(A)(2); No duty owed by an attorney to an adverse party; Friedman v. Dozorc; Engaging in the practice of law; Dressel v. Ameribank; Motion for reconsideration; MCR 2.119(F)(3); People v. Walters; Sanctions for filing a frivolous appeal; Failure to move for sanctions as required by MCR 7.216(C)(1) & (8); Prentis Family Found. v. Barbara Ann Karmanos Cancer Inst.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Gorbach v. US Bank Nat'l Ass'n

e-Journal Number: 53834

Judge(s): Per Curiam – Sawyer, Markey, and M.J. Kelly

 

Concluding that the record was inadequately developed to properly determine whether the plaintiff lost standing to pursue his claims when he filed for bankruptcy, the court reversed the trial court's order granting the defendants summary disposition and remanded for consideration of this issue. The court affirmed the trial court's imposition of $4,000 in sanctions against plaintiff for bringing frivolous claims against defendant-Canvasser, but reversed the imposition of $2,000 in sanctions for failing to appear at the pretrial conference and remanded for the trial court to reconsider whether plaintiff's counsel's failure to appear was "substantially justified." Plaintiff challenged the foreclosure on his property by advertisement. While he raised several issues, "the initial, and pivotal issue" was whether he had standing to sue. The property was auctioned and sold to defendant-US Bank via sheriff's deed on 2/17/11. Plaintiff filed for Chapter 7 bankruptcy on 6/11/11 and received a discharge from bankruptcy on 10/12/11. He filed the complaint in this case on 8/15/11. "By filing for bankruptcy, all of plaintiff's property - including his wrongful foreclosure claim and negligence claim against defendants - became property of the estate." He was "clearly aware of his potential cause of action against defendants, as the complaint was filed slightly more than two months after he filed for bankruptcy and several months after the sheriff's sale was finished." Since it was the trustee who had standing to sue defendants, plaintiff lacked standing to sue them unless he received permission or exempted the suit from the bankruptcy estate. The standing issue was not explicitly addressed in the trial court, and neither party offered any evidence of record to establish whether the trustee abandoned this asset or whether the bankruptcy court granted him permission. As to the sanctions, the court noted that "it is legally impossible to hold an attorney liable in negligence for conduct towards an adverse party. Further, because Canvasser was not the foreclosing entity, he could not be held liable for wrongful foreclosure." Thus, plaintiff's claims against him were "'devoid of arguable legal merit . . . .'" Plaintiff's counsel asserted that his failure to appear at the pretrial conference was excusable because he reasonably believed, based on statements by the clerk, that all proceedings were under an administrative stay due to the bankruptcy filing. The court concluded that by failing to examine plaintiff's evidence, determine whether he was misinformed by court staff, and decide whether this was a sufficient excuse to preclude sanctions, the trial court erred by failing to exercise its discretion. Affirmed in part, reversed in part, and remanded. The court retained jurisdiction and issued an order concurrently with its opinion, setting a schedule for proceedings on remand.

 

Issues: Validity of a foreclosure by advertisement; MCL 600.3201; Senters v. Ottawa Sav. Bank, FSB; MCL 600.3204(1) & (3); Residential Funding Co. v. Saurman; Assignment; Coventry Parkhomes Condo Ass'n v. Federal Nat'l Mtg. Ass'n; Arnold v. DMR Fin. Servs., Inc.; Abandoned argument; Ykimoff v. WA Foote Mem'l Hosp.; The affidavits showing compliance with the statute; MCL 600.3256(1)(a)-(c); Lee v. Clary; Request for sanctions for a "vexatious" appeal; Prentis Family Found. v. Barbara Ann Karmanos Cancer Inst.; MCR 7.216(C)(1) & (8); Mortgage Electronic Registration Systems (MERS)

Court: Michigan Court of Appeals (Unpublished)

Case Name: Mitchell v. PHH Mtg. Corp.

e-Journal Number: 53819

Judge(s): Per Curiam – Hoekstra, K.F. Kelly, and Beckering

 

Holding, inter alia, that the foreclosure satisfied the requirements of MCL 600.3204(1), the court affirmed the trial court's order granting the defendants summary disposition in this case challenging the validity of a foreclosure by advertisement. The plaintiffs executed a mortgage with a non-party (Merrill Lynch Credit) acting as the lender and MERS acting as the mortgagee and the nominee of Merrill Lynch and its successors and assigns. The parties agreed that plaintiffs defaulted on their mortgage obligation and that the power of sale in the mortgage became operative. There was no evidence that an action or proceeding was instituted at law to recover the debt secured by the mortgage. The mortgage was recorded on 9/5/06, and plaintiffs did not assert that it was improperly recorded. Finally, defendant-PHH, the party foreclosing on the mortgage, was both the owner of an interest in the indebtedness secured by the mortgage and the servicing agent of the mortgage. Specifically, a letter from Merrill Lynch to plaintiffs stated that PHH would "be handling the servicing of [plaintiffs'] loan." Also, the mortgage expressly provided that MERS was the mortgagee and Merrill Lynch's nominee, MERS "holds . . . legal title to the interests granted by Borrower in this Security Instrument," and MERS had the power to foreclose. MERS assigned its interest in the mortgage to PHH. Pursuant to the Michigan Supreme Court's decision in Saurman, "PHH's 'ownership of legal title to a security lien whose existence is wholly contingent on the satisfaction of the indebtedness' is an interest in the indebtedness secured by the mortgage." Thus, PHH was authorized to foreclose by advertisement under MCL 600.3204(1). The court also held that MCL 600.3204(3) was satisfied "because 'a record chain of title [existed] prior to the date of sale . . . evidencing the assignment of the mortgage to the party foreclosing the mortgage.'" The assignment of the mortgage from MERS to PHH was recorded on 8/20/10, several months before the sheriff's sale. The court rejected plaintiffs' argument that "the foreclosure sale was invalid because they did not consent to the 'MERS securitization process.'" They expressly agreed in the mortgage that MERS was both the mortgagee and Merrill Lynch's nominee. "A mortgagee of record is entitled to foreclose by advertisement under MCL 600.3204(1)(d)." Further, the mortgage stated that MERS had the right to foreclose. "MERS was free to assign its interest as mortgagee to PHH."

 

This summary also appears under Banking

 

Issues: Foreclosure proceedings; Whether the plaintiffs' case was barred by res judicata; Whether plaintiffs' claims could have been raised in the district court; Whether defendant-US Bank could be held liable for plaintiffs' breach of contract claim; Whether plaintiffs had "standing" to pursue their quiet title claim after the redemption period expired; Whether defendant was entitled to summary disposition; Adams v. Adams; Auto Club Group Ins. Co. v. Burchell; Electrolines, Inc. v. Prudential Assurance Co.; Whether a contract existed; Pakideh v. Franklin Commercial Mtg. Group, Inc.

Court: Michigan Court of Appeals (Unpublished)

Case Name: Motta v. Universal Mtg. Corp.

e-Journal Number: 53816

Judge(s): Per Curiam - Ronayne Krause, Cavanagh, and Boonstra

 

The court held, inter alia, that in light of the trial court's proper resolution of the dispositive contract issue, it did not need to consider the trial court's alternate reasons for dismissing the case (that res judicata barred the case and that plaintiffs lacked standing). Thus, the court affirmed the trial court's order granting defendant-US Bank summary disposition and dismissing plaintiffs' complaint challenging foreclosure proceedings. Plaintiffs executed a mortgage in favor of defendant-Universal Mortgage on 10/21/05 regarding a particular property. It appeared from the record that the last mortgage payment they made on the property was 10/5/09. By letter dated 10/13/09, Universal notified plaintiffs that they were in default on their mortgage by $4,328.85 and "only the full amount of the delinquency will cure the default." Plaintiffs requested information on the "FNMA Loss Mitigation Programs" and by letter dated 11/9/09, Universal detailed the necessary information required for processing a request for such relief. Plaintiffs were notified by Universal by letter dated 2/2/10 that it determined that it was unable to offer them any relief under these programs because your "income is insufficient to support a repayment plan under the Formal Forbearance Program, nor support any regular monthly payment under the Home Saver Advance." The letter also stated - "At this time, we are preparing your loan for legal action." Later, plaintiffs were notified by Universal's debt collector that "the creditor elected to accelerate the total indebtedness." The letter also advised that reinstatement of the mortgage was "possible" if past due payments and other costs and fees were received before the sheriff's sale. Plaintiffs requested a reinstatement amount and Universal wrote back that "after reviewing your loss mitigation package you have qualified for FNMA's Home Saver Advance program." Plaintiffs were advised to sign and return a Truth-In-Lending Disclosure Statement and Promissory Note, and remit $1,650.57 for outstanding fees and costs by 3/29/10. It appeared that they mailed a check dated 4/1/10 to Universal in the amount of $1,119.43. Thus, the check was neither timely nor for the correct amount. There was no record evidence that the necessary documents were sent to Universal. Plaintiffs' uncashed check was returned and Universal notified them that "it had not received the properly signed documents from you and we have no other option than to continue the foreclosure process on your property." On 4/10/10, the property was sold at a sheriff's sale to Universal. Later, Universal quitclaimed the property to Fannie Mae. The redemption period expired on 10/21/11, without plaintiffs redeeming the property. Then, they filed their complaint against US Bank and Universal. Plaintiffs contended, inter alia, that their breach of contract claim was not barred by res judicata. Apparently, they believed that the foreclosure action was improper because they were notified by Universal that they qualified for the Home Saver Advance loan. They construed this notification as a "contract" that prevented the foreclosure proceedings. However, even if Universal's notification was considered an "offer," the evidence was plain that they did not accept the offer because their check was neither timely nor written in the correct amount and it was undisputed that they did not submit the required "properly signed" documents. Thus, no contract was formed. Affirmed.

 

Termination of Parental Rights

 

Issues: Whether the initial petition and the later amended petition provided the proper bases for the trial court to assume jurisdiction over the minor children; In re Hatcher; Whether the respondent-mother was denied notice and opportunity to be heard as to the amended petition; Due process; Lassiter v. Department of Soc. Servs.; In re Brock; Sherrod v. Detroit; Reed v. Reed; Whether the trial court properly admitted a psychological report of respondent; In re Jones; MRE 703; MRE 705; Jury instructions; Whether the trial court erred in not instructing the jury to disregard the Community Mental Health's specialist's testimony indicating that respondent suffered from PTSD; People v. Graves; Cumulative errors; People v. Cooper; Community Mental Health (CMH)

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Donadio

e-Journal Number: 53910

Judge(s): Per Curiam - Beckering, Stephens, and Boonstra

 

The court held that the statutory grounds for the assumption of jurisdiction alleged in the petition were established. In the initial petition it was alleged that respondents-parents' home was unfit for children to live in due to extreme unsanitary conditions, that the parents could not appropriately parent their young children and that the respondents struggled with mental health concerns. Further, the initial petition also alleged that the parents had undergone various cognitive and mental health testing. The order authorizing the initial petition noted that there was reasonable cause to believe that one or more of the allegations in the petition were true and stated that it was contrary to the welfare of the children to permit the children to remain in respondents' care because of the mental health issues, noncompliance with mental health services regarding the parents, and "deplorable living conditions." The allegations in the amended petition included that the children had extremely poor hygiene and dirty clothes, respondents had a homeless man living with them who had an extensive criminal history, the home was dirty, respondent had angry outbursts during visitations with her children, as reported by the CMH worker, and she had a variety of difficulties appropriately caring for her children during various supervised visits and frequently became angry during DHS, as observed by DHS foster care workers. Although the amended petition was not formally "authorized," the trial court clearly concluded that the ends of justice required consideration of the allegations of the amended petition. The trial court did not violate respondent's rights by allowing the proceedings below to take account of the allegations in the amended petition. Affirmed.

 

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