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e-Journal Summary
Opinion Date: 06/19/2012
e-Journal Date: 07/03/2012
Full Text Opinion

Practice Area(s):   Real Property

Issues: Foreclosure; The trial court's summary dismissal of the plaintiff-Pine Hollow's claims as to the newspaper publication; Coblentz v. Novi; Motion under MCR 2.116(C)(10); Corley v. Detroit Bd. of Educ.; Review of the trial court's factual findings after a bench trial; Trader v. Comerica Bank; Statutory interpretation; Eggleston v. Bio-Medical Applications of Detroit, Inc.; Rose Hill Ctr., Inc. v. Holly Twp.; Detroit City Council v. Mayor of Detroit; Contract interpretation; Citizens Ins. Co. v. Pro-Seal Serv. Group, Inc.; Hasting Mut. Ins. Co. v. Safety King Inc.; Notice; Cheff v. Edwards; Sweet Air Inv., Inc. v. Kenney; MCL 600.3208; Moss v. Keary; Posting; Deference to the trial court's assessment of the witnesses' credibility; Ambs v. Kalamazoo Cnty. Rd. Comm'n; Notice contents; MCL 600.3212; MCL 600.3212(d); Whether the sheriff sale was void; MCL 600.3224; Masella v. Bisson; Security Trust Co. v. Sloman; "Distinct"; Cox v. Townsend; Effect of "plat lines"; Baratto v. Pitcher
Court: Michigan Court of Appeals (Unpublished)
Case Name: Pine Hollow Estates, LLC v. Citizens Bank
e-Journal Number: 51939
Judge(s): Per Curiam – Gleicher, M.J. Kelly, Boonstra

The court held that the trial court properly summarily dismissed the plaintiff's claims as to the newspaper publication and ruled from the bench that the defendant-bank published and posted the foreclosure sale notice consistent with the statutory requirements. Although the court disagreed with the trial court's conclusion that the bank could sell the property as a whole, the trial court ultimately reached the correct result, ruling that the irregularities did not warrant setting aside the foreclosure sale. The bank foreclosed upon plaintiff's multimillion-dollar condo development project when plaintiff ceased repaying its mortgage-secured debt. Plaintiff did not challenge the bank's authority to take the property, only the methods by which it advertised and conducted the foreclosure sale. The bank published a notice in a local paper about the foreclosure by advertisement. The notice included the legal description of plaintiff's property, identified the mortgage interest, and stated the exact time and location of the sale. The parties contested whether the notification was ever posted on the property. Plaintiff challenged the notice provided through publication and posting, and the validity of the sheriff's sale. As to a foreclosure by advertisement, the adequacy of notice is governed by statute and the duty to provide notice arises from the parties' contract. Plaintiff argued that "[a] literal application" of the publication provision "leads to absurd results" because "it allows a foreclosing party to publish notice in remote newspapers within the county that could not possibly alert the landowner or interested parties about the sale." However, it conceded that the paper here was "a newspaper published in the county where" the property was "situated" as anticipated by the plain language of MCL 600.3208. The court may not ignore the plain language of the statute in the manner suggested by plaintiff. Also, the Michigan Supreme Court has repeatedly rejected challenges to the publication statute's soundness despite the foreclosing party's publication in remote newspapers. Since the paper was published in the county, the court held that the trial court properly summarily dismissed plaintiff's claims based on the notice publication. Plaintiff also contended that there was insufficient evidence that the bank actually posted notice of the foreclosure sale on the property. Plaintiff asserted in the alternative that the bank was required to post notice at each vacant condo site individually. The trial court determined from deputy sheriff H's testimony that he had actually posted the notices and from the testimony of plaintiff's witnesses that the postings were removed by wind, concerned neighbors, or the developer. The court deferred to the trial court's assessment of witness credibility. Thus, the court found no clear error in the trial court's judgment that the bank actually posted the notices as required by statute. Further, the court disagreed with plaintiff's argument that the bank was required to post notice of the foreclosure sale on each individual vacant condo lot. The court held that plaintiff's claim that the foreclosure sale notice omitted statutory elements was also without merit. Plaintiff claimed that the bank should have included descriptions and tax identification numbers for each individual vacant condo lot within the mortgaged premises. "However, this was not required by the statute." The description of the property must "substantially conform[] with the description contained in the mortgage." The bank "culled the property description in the notice directly from the future advance mortgage" and thus, met its statutory duty. Affirmed.

Full Text Opinion

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