Fifth Third Mortg. Co. v. Jodway

917 N.W.2d 70

Opinion

On order of the Court, the application for leave to appeal the November 14, 2017 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration of the issue raised by the defendants but not addressed by that court during its initial review of this case regarding Timothy M. Jodway's recoupment defense. In its analysis, the Court of Appeals held that the defendants "are not barred under the doctrine of res judicata from asserting a defense of recoupment premised on plaintiff's alleged violation of the Equal Credit Opportunity Act, 15 USC 1691 et seq. (ECOA)." Having reached this determination, the Court of Appeals vacated "the portion of the trial court's award to the extent that it dismissed defendant Alaina M. Zanke-Jodway's recoupment defense as a spouse-guarantor, and remand for further proceedings on that issue." The Court of Appeals did not, however, specifically consider the recoupment defense of Timothy M. Jodway. On remand, the Court of Appeals shall: (1) clarify whether the trial court incorrectly determined that the doctrine of res judicata bars Timothy M. Jodway's recoupment defense, and (2) if res judicata does not apply, determine whether to vacate that portion of the trial court's award dismissing Timothy M. Jodway's recoupment defense and to remand for further proceedings.

We do not retain jurisdiction.