Motion for payment of surplus proceeds from a property tax-foreclosure sale; Notice; Due process; Unconstitutional taking; In re Muskegon Cnty Treasurer for Foreclosure; Over the Rainbow, LLC (OTR)

The court affirmed the trial court’s denial of respondent-OTR’s motion for payment of the surplus proceeds generated from petitioner-county treasurer’s tax-foreclosure sale of OTR’s property on statutory grounds. It noted that in “the trial court, OTR’s motion did not assert a lack of notice (and indeed asserted no notice was required). OTR’s attorney raised it for the first time, however, orally in the motion hearing. The Treasurer contradicted that assertion at the hearing, and this Court—after receipt of the appellee brief—subsequently granted the Treasurer’s motion to expand the trial court record to include the notice of pending foreclosure that it sent to OTR.” The notice in question “specifically notes the property owner’s right to make a claim for remaining proceeds, the requirement to complete and file the form contemplated by MCL 211.78t(2) to initiate the process, the deadline to file such form, and the potential consequences of failing to do so.” OTR did “not challenge the authenticity of the notice or raise any substantive arguments establishing that it did not receive it. Instead, it merely notes that appellate review is generally limited to the record established in the trial court. That much is true.” But the court noted “that is the general rule, and [it] has the discretion to expand the lower court record under MCR 7.216(A)(4) in appropriate cases such as this.” Thus, OTR did not show “any entitlement to relief on this issue.” OTR next claimed “the Treasurer violated its due-process rights by failing to satisfy MCL 211.78i(7)(i) by neglecting to provide OTR with notice of its right to claim an interest in the remaining proceeds following the tax-foreclosure sale of its property.” But the record included “that required notice. Considering OTR does not claim that this notice fails to satisfy MCL 211.78i(7)(i), it fails to demonstrate a deprivation of due process on the grounds alleged.” Finally, OTR claimed “the Treasurer’s retention of the excess proceeds constituted an unconstitutional taking. Binding precedent” (Muskegon Cnty Treasurer) foreclosed this issue.