Kubicki v. Mortgage Electronic Registration Systems

807 N.W.2d 433, 292 Mich. App. 287
CourtMichigan Court of Appeals
DecidedFebruary 22, 2011
DocketDocket No. 295854
StatusPublished
Cited by22 cases

This text of 807 N.W.2d 433 (Kubicki v. Mortgage Electronic Registration Systems) 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
Kubicki v. Mortgage Electronic Registration Systems, 807 N.W.2d 433, 292 Mich. App. 287 (Mich. Ct. App. 2011).

Opinion

PER CURIAM.

In this action to set aside a sheriffs foreclosure sale, plaintiff appeals as of right the circuit court’s order granting summary disposition in favor of defendants under MCR 2.116(C)(10) (no genuine issue of material fact). We affirm the order of the circuit court.

On appeal, plaintiff asserts that the sheriffs deed on mortgage foreclosure (Sheriffs Deed) executed by Matthew J. Chodak fraudulently misrepresents that Chodak is a “deputy sheriff.” According to plaintiff, Chodak is not a sheriff, an undersheriff, or a deputy sheriff, as required by the Michigan mortgage foreclosure statute, MCL 600.3216, because he did not request to be, and was not actually, properly appointed by [289]*289Sheriff Michael J. Bouchard and no such appointment was filed with the Oakland County Clerk’s office, as required by the statute governing the appointment of an undersheriff or a deputy sheriff, MCL 51.73. We disagree.

We review de novo a trial court’s decision on a motion for summary disposition. Silberstein v Pro-Golf of America, Inc, 278 Mich App 446, 457; 750 NW2d 615 (2008). Evidence must be examined “in the light most favorable to the nonmoving party.” Id. “Summary disposition should be granted only where the evidence fails to establish a genuine issue regarding any material fact.” Id. at 457-458.

The Michigan Supreme Court has held that statutory foreclosures will only be set aside if “very good reasons” exist for doing so. Markoff v Tournier, 229 Mich 571, 575; 201 NW 888 (1925). “ 4[I]t would require a strong case of fraud or irregularity, or some peculiar exigency, to warrant setting a foreclosure sale aside.’ ” Sweet Air Investment, Inc v Kenney, 275 Mich App 492, 497; 739 NW2d 656 (2007), quoting United States v Garno, 974 F Supp 628, 633 (ED Mich, 1997). “Statutory foreclosures are a matter of contract, authorized by the mortgagor, and ought not to be hampered by an unreasonably strict construction of the law.” White v Burkhardt, 338 Mich 235, 239; 60 NW2d 925 (1953).

Under MCL 600.3216, a sheriffs foreclosure sale “shall be made by the person appointed for that purpose in the mortgage, or by the sheriff, undersheriff, or a deputy sheriff of the county, to the highest bidder.” Concerning appointment of deputy sheriffs by the sheriff, MCL 51.70 provides that

[e]ach sheriff may appoint 1 or more deputy sheriffs at the sheriffs pleasure, and may revoke those appointments at any time. Persons may also be deputed by a sheriff, by an [290]*290instrument in writing, to do particular acts, who shall be known as special deputies and each sheriff may revoke those appointments at any time.

Similarly, concerning appointments, MCL 51.73 provides that

[ejvery appointment of an under sheriff, or of a deputy sheriff, and every revocation thereof, shall be in writing under the hand of the sheriff, and shall be filed and recorded in the office of the clerk of the county, and every such under sheriff or deputy shall, before he enters upon the duties of his office, take the oath prescribed by the twelfth article of the constitution of this state.[1] But this section shall not extend to any person who may be deputed by any sheriff to do a particular act only.

In this case, plaintiff argues that Chodak could not have lawfully conducted the foreclosure sale given that he was not properly appointed as a deputy sheriff because there is no written and recorded appointment on file with the Oakland County Clerk’s office. In support of his argument, plaintiff cites four cases that deal with either appointment by someone other than a sheriff or situations in which no written instrument memorializes an appointment. This case is factually distinguishable in that it does not involve appointment by an undersheriff or someone acting on behalf of the sheriff, but instead concerns whether Chodak was appointed for purposes of MCL 51.70 when he signed the “Agreement to Serve and/or Execute Civil Process for the Oakland County Sheriffs Office” (Agreement).

While plaintiff is correct that Chodak was not properly appointed as a deputy sheriff under the requirements set forth in MCL 51.73, Chodak was properly deputized as a special deputy under MCL 51.70. In this [291]*291case, there is a written instrument, i.e., the Agreement, that was signed by Sheriff Bouchard. According to the terms of the Agreement, “Civil Process” includes, but is not limited to, “selling lands on the foreclosure of a mortgage by advertisement; executing deeds and performing all related services required on sale of property . . ..” In this way, the Agreement prescribes the particular acts to be performed. Therefore, the Agreement constitutes the necessary written instrument for purposes of deputizing a special deputy. As a result, Chodak qualifies as a special deputy, and the provisions of MCL 51.73 requiring filing and recording of an appointment are inapplicable.

Plaintiff also argues that MCL 51.70 and MCL 51.73 require appointment by the sheriff of an individual, who can be monitored, and were not intended to allow the sheriff to appoint a corporation, which may delegate its duties to unaccountable third parties. Plaintiff notes that the Agreement is between Sheriff Bouchard and County Civil Process Services, Inc., of which Chodak is the president,2 but the Sheriffs Deed has only Chodak’s name on it. However, plaintiff points to no authority to support this proposition concerning the intent of the Legislature in enacting these provisions of the sheriffs’ statute. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment with little or no citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641, 588 NW2d 480 (1998). Additionally, plaintiffs fears concerning a contractor’s unilateral delegation of authority to “anybody of its choosing” are unfounded in light of language in the Agreement requiring that any [292]*292employee of the contractor who performs a duty of the sheriffs office must be a “Special Deputy ... in accordance with the DEPUTIZATION ADDENDUM.” Similarly, the deputization addendum (Addendum) requires that any employees of the contractor must request to be appointed as a “Special Deputy pursuant to MCL 51.70, with the powers of deputy sheriff.” Therefore, even if plaintiff had supported his argument concerning the intent behind MCL 51.70 and MCL 51.73 with citations of authority, this argument could not succeed because the terms of the Agreement and Addendum preserve the emphasis on accountability of particular individuals and thereby prevent the haphazard delegation and appointment schemes that plaintiff raises as concerns. Furthermore, while plaintiff correctly points out that, under the Addendum to the Agreement, the contractor must request that the sheriff appoint a specific individual as a special deputy to serve as deputy sheriff, this requirement deals with deputization of a contractor’s employees, not the contactor himself (in this case, Chodak), who has signed a contract with the sheriff.

Additionally, plaintiff points out that the copy of the oath attached to defendants’ brief on appeal has no liber or page number, thereby giving no indication that the oath was filed with the Oakland County Clerk’s office as claimed by defendants.

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Cite This Page — Counsel Stack

Bluebook (online)
807 N.W.2d 433, 292 Mich. App. 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kubicki-v-mortgage-electronic-registration-systems-michctapp-2011.