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In re Forfeiture of Bail Bond

Court of Appeals of Michigan

November 22, 2016

In re FORFEITURE OF BAIL BOND,
v.
ANTOINE J. STANFORD, Defendant, PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, and LEO'S BAIL BONDS AGENCY COMPANY, INC., as Agent in Fact of ROCHE SURETY AND CASUALTY COMPANY, INC., Appellant.

         Eaton Circuit Court LC No. 14-020293-FH

          Before: Ronayne Krause, P.J., and O'Connell and Gleicher, JJ.

          PER CURIAM.

         Appellant, the agent for the surety on a bail bond provided for defendant in a criminal matter, appeals as of right the circuit court's decision denying its motion to vacate forfeiture of bond. The court concluded that appellant had received timely notice of defendant's default, and also concluded that a late penalty assessed against appellant for failure to timely pay the judgment was proper. We conclude that the notice was not timely, so we reverse and remand for further proceedings.

         I. BACKGROUND FACTS

         Defendant Antoine Stanford was charged with uttering and publishing, MCL 750.249, and operating with a suspended license, MCL 257.904. Appellant, as agent for Roche Surety and Casualty Company, Inc. ("Roche"), became defendant's surety on a bail bond for this matter in the amount of $10, 000. On or about January 14, 2015, defendant defaulted on his bond obligation when he failed to appear at a pretrial hearing. On January 20, 2015, the circuit court issued an order revoking defendant's release and forfeiting the bond. It served notice to appellant via first-class mail. The certificate of mailing attached to the order stated that it was served on appellant on January 21, 2015, seven days after defendant's default, as required by MCL 765.28(1)[1]. However, appellant asserted that the notice was postmarked January 22, 2015, which was eight days after defendant's default, in violation of the statute. Moreover, appellant asserted that it was without "actual notice" of defendant's default and entry of the order until it received the notice in the mail on January 23, 2015.

         Appellant failed to appear at a show cause hearing held on February 20, 2015. On February 24, 2015, the circuit court entered judgment against appellant for $10, 000, the full amount of bail. Appellant was later notified that a 20 percent late fee had been added to its obligation as a result of its failure to timely pay the judgment, raising appellant's obligation to $12, 000.

         Appellant filed a motion to vacate the judgment of bond forfeiture, arguing that notice was not provided within seven days of defendant's default as required by MCL 765.28(1), so it was untimely. The court denied the motion on the grounds that notice was timely pursuant to MCR 3.604(I)(2)[2], and that the date of service of notice was January 21, 2015, as stated on the judgment's certificate of mailing, rather than January 22, 2015, the date that the notice was postmarked. The court also concluded that there was a conflict between MCR 3.604(I)(2) and MCL 765.28(1) as to "the procedural requirements for service, " and that the court rule was controlling over the statute. The court's decision was based in part on a memorandum from the State Court Administrator's Office (SCAO), in which the SCAO concluded that the court rule controlled because the subject of the conflict was procedural in nature, citing Donkers v Kovach, 277 Mich.App. 366, 373; 745 N.W.2d 154 (2007). The court also concluded that the 20 percent late fee on the judgment was proper under MCL 600.4803(1) because the penalty was "separate" from the judgment, so the judgment was not for more than the "full amount of the surety bond" in violation MCL 765.28(1).

         II. STANDARD OF REVIEW

         Questions of statutory interpretation are questions of law that are reviewed de novo. In re McEvoy, 267 Mich.App. 55, 59; 704 N.W.2d 78 (2005). Questions relating to the proper interpretation of court rules are also questions of law that are reviewed de novo. Marketos v American Employers Insurance Co, 465 Mich. 407, 412; 633 N.W.2d 371 (2001). In interpreting a statute, we apply the rule of ordinary usage and common sense. People v Kelly, 186 Mich.App. 524, 528; 465 N.W.2d 569 (1990).

         III. STATUTE AND COURT RULE DO NOT CONFLICT

         MCL 765.28(1) and MCR 3.604(I)(2) do not conflict. MCL 765.28(1) is the procedure for providing a surety notice of a default. MCR 3.604(I)(2), on the other hand, is the procedure to provide notice of a hearing on a motion for judgment. These are two separate and distinct events. A default must be entered prior to a hearing to enter judgment on the default. In any event, the court rule itself would resolve any conflict, if such a conflict otherwise exists. MCR 3.604(A) states that the "rule applies to bonds given under the Michigan Court Rules and the Revised Judicature Act, unless a rule or statute clearly indicates that a different procedure is to be followed" (emphases added). Therefore, even if MCL 765.28(1) set forth a procedure that affected the same event or subject addressed by the court rule, by the court rule's own terms the statute would still control.

         II. NOTICE OF DEFAULT WAS INEFFECTIVE

         Service was not timely under MCL 765.28(1) or MCR 3.604(I)(2)[3]. Under MCL 765.28(1), a surety must receive immediate notice, "not to exceed seven days after the date of the failure to appear." However, the trial court did not even mail the notice until the eighth day. Under MCL 765.28(1), notice "shall be served upon each surety in person or left at the surety's last known business address." The word "shall" generally denotes a mandatory duty. State Highway Comm v Vanderkloot, 392 Mich. 159, 180; 220 N.W.2d 416 (1974). Therefore, mailing the notice did not effectuate timely or proper service under ...


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