John D Edwards v. Oakland County Treasurer

CourtMichigan Court of Appeals
DecidedApril 17, 2018
Docket336682
StatusUnpublished

This text of John D Edwards v. Oakland County Treasurer (John D Edwards v. Oakland County Treasurer) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John D Edwards v. Oakland County Treasurer, (Mich. Ct. App. 2018).

Opinion

STATE OF MICHIGAN

COURT OF APPEALS

JOHN D. EDWARDS, UNPUBLISHED April 17, 2018 Plaintiff-Appellant,

v No. 336682 Oakland Circuit Court OAKLAND COUNTY TREASURER, and LC No. 2016-154022-CH SOUTHFIELD CITY TREASURER,

Defendants-Appellees.

Before: SERVITTO, P.J., and MARKEY and O’CONNELL, JJ.

PER CURIAM.

Plaintiff filed a complaint requesting an order setting aside an order foreclosing on his property, invalidating the sale of the property, and granting plaintiff legal title to the property. The trial court issued orders granting defendants’ motions for summary disposition pursuant to MCR 2.116(C)(10) (no genuine issue of material fact). Plaintiff appeals by right. We affirm.

I. FACTS

On November 26, 2008, plaintiff acquired the subject property by covenant deed and deemed it his “principal residence.” When plaintiff failed to pay property taxes in 2012 and 2013, defendant Oakland County Treasurer foreclosed on the property. Plaintiff alleged that there was a failure to comply with statutory and constitutional notice requirements before foreclosure, but defendant Oakland County Treasurer presented evidence of multiple attempts to provide plaintiff with notice of the impending foreclosure: On June 1, 2014, a notice of property tax delinquency was mailed to plaintiff at the property address. A second notice of property tax delinquency was mailed to “John Edwards” and separately to “John Derek Edwards” at the property address on September 1, 2014. Notices of property tax forfeiture were again mailed to “John Edwards” and “John Derek Edwards” at the property address in February of 2015, although they were returned unclaimed.

On June 2, 2015, defendant Oakland County Treasurer conducted a title search that identified a New York, New York address and a Lansing, Michigan address as the only other residences associated with plaintiff. The title search also indicated that a “John M. Edwards” in West Bloomfield, Michigan held an interest in the property.

-1- In December of 2015, a notice of administrative show cause hearing and judicial foreclosure hearing was mailed to plaintiff at the property address, although this was also returned unclaimed. On December 14, 2015, it was discovered that the property address was listed as the forwarding destination for the New York address. A notice of administrative show cause hearing and judicial foreclosure hearing was then mailed to plaintiff at the West Bloomfield address, though its arrival status was unclear. Another notice of administrative show cause hearing and judicial foreclosure hearing was mailed to plaintiff at the Lansing address and was accepted by a Nathaniel Edwards.

A process server stated that she personally visited the property three times—on October 20, 2015, November 7, 2015, and November 20, 2015—in attempts to serve the notice of show cause hearing and judicial foreclosure hearing on plaintiff. She never made contact with plaintiff, but posted the documents to the front door of the property, photographing the documents’ placement immediately thereafter. Another process server personally visited the West Bloomfield address once in an attempt to serve the notice of show cause hearing and judicial foreclosure hearing on plaintiff. He also posted the documents to the front door when he was unable to make contact with plaintiff and took photographs.

In November, 2015, defendant Oakland County Treasurer mailed a notice of show cause hearing and judicial foreclosure hearing to plaintiff at a New York, New York address that did not match the one produced by the title search. Another notice of show cause hearing and judicial foreclosure hearing was mailed to plaintiff at the Lansing address and was again received by a Nathaniel Edwards. Finally, a notice of impending foreclosure was published in the Oakland Press on December 17, 2015, December 24, 2015, and December 31, 2015.

On February 3, 2016, the Oakland Circuit Court issued a judgment of foreclosure on the property. On March 1, 2016, defendant Oakland County Treasurer sent a final letter to plaintiff at the property address informing him of the foreclosure. Plaintiff did not timely appeal, and on July 7, 2016, the property was conveyed to the City of Southfield.

Plaintiff filed this suit on July 14, 2016, alleging that defendant Oakland County Treasurer did not comply with statutory and constitutional notice requirements before seeking foreclosure on the property. Defendants filed motions for summary disposition, which the trial court granted.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision on a motion for summary disposition. Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). The reviewing court must only consider evidence that was properly presented to the trial court before its decision on the motion. Peña v Ingham Co Rd Comm, 255 Mich App 299, 310; 660 NW2d 351 (2003). This Court also reviews de novo equitable actions to quiet title. McFerren v B & B Investment Group, 253 Mich App 517, 522; 655 NW2d 779 (2002).

Under MCR 2.116(C)(10), summary disposition can be granted if “there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” Motions for summary disposition under MCR 2.116(C)(10) test the factual

-2- sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). “A question of fact exists when reasonable minds could differ as to the conclusions to be drawn from the evidence.” Dextrom, 287 Mich App at 416. When evaluating motions brought under this subrule, a trial court must consider—in the light most favorable to the nonmoving party—the parties’ affidavits, pleadings, depositions, admissions, and other documentary evidence. Id. at 415-416, citing MCR 2.116(G)(5). Such evidence is required when judgment is sought pursuant to subrule (C)(10). MCR 2.116(G)(3)(b). Motions under subrule (C)(10) “must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact.” MCR 2.116(G)(4). The nonmoving party may not rest upon its pleading, but it must set forth specific facts showing that there is a genuine issue for trial. Id. If the nonmoving party fails to do so, the moving party is entitled to judgment as a matter of law. Maiden, 461 Mich at 120. Mere conclusory allegations in a party’s affidavit do not raise genuine issues of material fact. Quinto v Cross and Peters Co, 451 Mich 358, 371-372; 547 NW2d 314 (1996).

III. ANALYSIS

A. DUE PROCESS

Plaintiff argues that defendant Oakland County Treasurer did not provide proper notice before seeking foreclosure of the property in violation of plaintiff’s due process rights. We disagree. As a preliminary matter, the new evidence attached to plaintiff’s appellate brief is not properly before this Court for review: it was not presented to the trial court before its decision on defendants’ motions. See Peña, 255 Mich App at 310.

It was the intent of the Legislature that the provisions of the General Property Tax Act, see MCL 211.1 through MCL 211.157, relating to the return, forfeiture, and foreclosure of property for delinquent taxes satisfy the minimum requirements of due process required under the constitution of this state and the constitution of the United States but that those provisions do not create new rights beyond those required under the state constitution of 1963 or the constitution of the United States. [MCL 211.78(2).]

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John D Edwards v. Oakland County Treasurer, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-d-edwards-v-oakland-county-treasurer-michctapp-2018.