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In re Petition of Tuscola County Treasurer for Foreclosure

Court of Appeals of Michigan

October 10, 2016

In re PETITION OF TUSCOLA COUNTY TREASURER FOR FORECLOSURE.
v.
JENNIFER A. DUPUIS, Respondent-Appellee/Cross-Appellant. TUSCOLA COUNTY TREASURER, Petitioner-Appellant/Cross-Appellee,

         Tuscola Circuit Court LC No. 14-028294-CZ

          Before: Jansen, P.J., and Murphy and Riordan, JJ.

          Per Curiam.

         Petitioner appeals as of right the order granting respondent conditional relief from an earlier judgment of foreclosure of her property. Respondent cross-appeals that same order on the basis that MCL 211.78k(5)(g) is unconstitutional. We reverse and vacate.

         I. FACTS AND PROCEDURAL HISTORY

         This case arises from the foreclosure of respondent's property, which is located in Arbela Township. The property became delinquent on property taxes for 2011 and 2012. On January 23, 2014, petitioner granted respondent a financial hardship deferral, which required respondent to pay the 2011 taxes by June 1, 2014, and to pay $300 per month for the 2012 taxes. However, respondent did not pay the 2011 or 2012 taxes pursuant to the financial hardship deferral.

         On May 14, 2014, petitioner filed a petition of foreclosure for properties with unpaid property taxes for 2012 and prior years, and respondent's property was incorporated in the petition. Respondent was provided with notice regarding a January 21, 2015 show-cause hearing and a February 2, 2015 foreclosure hearing. Respondent does not argue that she did not receive these notices. Petitioner also filed with the court proof of publication and proof of personal visits to the property.

          On February 2, 2015, following a hearing, the circuit court entered a final judgment of foreclosure on the property. The judgment ordered that fee simple title would vest on March 31, 2015, and respondent would lose all rights of redemption, unless the delinquent taxes were paid before that date. The order further provided:

This judgment is a final order with respect to the property affected by this Judgment and except as provided in MCL 211.78k(7) shall not be modified, stayed, or held invalid after March 31, 2015 unless there is a contested case concerning a parcel in which event this final judgment, with respect to the parcel involved in the contested case, shall not be modified, stayed, or held invalid 21 days after the entry of the judgment in the contested case.

         Another notice was sent to respondent, informing her that she had to pay the delinquent taxes by March 31, 2015, in order to redeem the property. Respondent does not challenge whether she received the notice. Respondent did not pay the delinquent taxes by March 31, 2015. The auction on the property was scheduled for August 26, 2015.

         On August 3, 2015, respondent filed a motion to conditionally set aside the judgment of foreclosure pursuant to MCR 2.612(C)(1)(f). Respondent explained in an affidavit included with the motion that the foreclosure was the result of past hard times and a misunderstanding with township officials. Specifically, respondent stated that she fell on hard times after her husband broke his back and that a township board member told her that she needed to pay the delinquent taxes by May 2015. According to respondent, she submitted $6, 000 to petitioner in early May 2015, but petitioner returned the money to her by mail about a month later. Respondent stated that she had all the funds needed to pay the entire tax deficiency in full, including penalties, costs, and expenses, and she had finally located an attorney who could help her.

         Petitioner responded on August 6, 2015, contending that the circuit court lacked jurisdiction because the judgment of foreclosure was entered, the redemption period expired, and respondent was not claiming a denial of due process. Petitioner further argued that, even if the court had jurisdiction, it should not grant relief under MCR 2.612(C)(1)(f) because respondent's position "is solely the result of her actions and inactions." During a hearing on August 10, 2015, the circuit court granted respondent's motion, stating that it had "equitable jurisdiction, " and that granting the motion is "the appropriate thing to do." The court explained that it "may be wrong" on the jurisdictional issue, but the court preferred to err on the side of doing the appropriate thing. The court then entered an order granting respondent conditional relief from the judgment of foreclosure, which directed petitioner to convey the property back to respondent conditioned on respondent's payment of all delinquent taxes, interest, penalties, and fees by August 20, 2015. Respondent paid the taxes, interest, penalties, and fees within the time frame, and no auction occurred.

         II. STANDARD OF REVIEW

         We review de novo the question whether the circuit court had jurisdiction to enter the order granting conditional relief. In re Petition by Wayne Co Treasurer, 265 Mich.App. 285, 290; 698 N.W.2d 879 (2005). The issue whether a statute is unconstitutional because it violates the separation of powers doctrine is a question of law, which we review de novo. See Phillips v Mirac, Inc, 470 Mich. 415, 422; 685 N.W.2d 174 (2004); Okrie v Michigan, 306 Mich.App. 445, 453; 857 N.W.2d 254 (2014).

         III. JURISDICTION

         Petitioner contends that the circuit court did not have jurisdiction to enter the order granting respondent conditional relief ...


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