Breach of contract; MCL 440.9610 (requirement that the sale of secured assets be “commercially reasonable”); Waiver of a lack of personal jurisdiction defense

In this breach-of-contract dispute, the court affirmed the trial court’s order granting plaintiff-TIR Capital’s motion for summary disposition under MCR 2.116(C)(10). Defendants highlighted two arguments that defendant-Merer “raised in his ‘motion to dismiss’ that defendants believe provided a basis for denying plaintiff relief.” As an initial matter, “assuming without deciding that defendants are correct and that the trial court erred by not treating Merer’s ’motion to dismiss’ as a response to plaintiff’s motion for summary disposition,” the court concluded that the error was harmless. Defendants alleged that plaintiff’s disposition of defendant-Hush Entertainment’s collateral was not commercially reasonable as required by MCL 440.9610 “because plaintiff conducted a private sale in which plaintiff sold Hush Entertainment’s assets ‘to himself.’ But Merer failed to provide any evidence to support the factual assertion that plaintiff sold the secured assets ‘to himself.’” Thus, Merer “failed to place plaintiff’s compliance with MCL 440.9610 ‘in issue,’ so plaintiff was not required to prove that it complied with the UCC in the sale of Hush Entertainment’s secured assets, . . . and its ‘failure’ to do so did not trigger the provisions of MCL 440.9626(c). Accordingly, any error that the trial court made by not considering Merer’s argument related to the UCC was harmless.” Second, defendants reiterated “the argument Merer made in his ‘motion to dismiss’ that the trial court lacked personal jurisdiction over” him. The court noted that “Merer’s first responsive pleading in this case was his answer to plaintiff’s complaint. That answer had a separate and distinct heading labeled ‘affirmative defenses,’ but under that heading, Merer never listed lack of personal jurisdiction as an affirmative defense. Accordingly, applying the court rules as written, that defense was waived.” The court held that because “Merer waived lack of personal jurisdiction as a defense, the trial court’s failure to consider Merer’s lack-of personal-jurisdiction argument before granting plaintiff’s motion for summary disposition was harmless.”