Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Petition of Berrien County Treasurer for Foreclosure

Court of Appeals of Michigan

April 10, 2018

In re PETITION OF BERRIEN COUNTY TREASURER FOR FORECLOSURE.
v.
NEW PRODUCTS CORP, Respondent-Appellant. BERRIEN COUNTY TREASURER, Petitioner-Appellee,

          Berrien Circuit Court LC No. 2014-000170-CZ

          Before: Hoekstra, P.J., and Stephens and Shapiro, JJ.

          Per Curiam.

         This foreclosure action is before the Court on remand from the Michigan Supreme Court to consider "whether MCL 211.78k(7) requires payment of the full amount due for all tax parcels listed in a judgment of foreclosure as a condition of appeal where the taxpayer does not seek to challenge the foreclosures for all of the parcels." In re Petition of Berrien County Treasurer, 500 Mich. 902; 887 N.W.2d 633 (2016). We conclude that it does not.

         I. BACKGROUND

         Respondent challenged petitioner's June 13, 2014 prayer for the tax foreclosure of six of seven property tax parcels[1] comprising 12 acres at 489 North Shore Drive, Benton Harbor, Michigan for unpaid taxes for tax years 2008 through 2012. On November 3, 2014, respondent filed objections to foreclosure of those parcels. All seven of the North Shore properties were removed from the annual petition for foreclosure. Thereafter, the parties filed cross-motions for summary disposition on the respondent's objections. The circuit court granted petitioner's MCR 2.116(C)(4) motion for lack of subject matter jurisdiction because it agreed that the tax tribunal had exclusive and original jurisdiction to make the fact-findings necessary to resolve respondent's objections. The court also held that respondent lacked standing to assert the notice rights of third parties Modern Plastics and the Walter Miller Trust. A Judgment of Foreclosure of all of the North Shore properties was entered on May 20, 2015. The court entered a stay of the enforcement of the Judgment:

until (a) the Michigan Court of Appeals has reversed, modified, or affirmed the same, and the Michigan Court of Appeals' decision has become final; or (b) until the period by which New Products Corporation may file a claim of appeal has expired without any such claim of appeal having been filed, whichever occurs first. If an appeal is timely filed, the 21-day period for payment of all forfeited delinquent property taxes, interest, penalties and fees shall begin upon expiration of the stay.

         Respondent appealed as of right the circuit court's May 2015 Judgment of Foreclosure and the underlying grant of the motions for summary disposition. Petitioner, in turn, filed a motion for partial peremptory reversal arguing that the circuit court's stay of enforcement of the judgment allowed respondent to file a claim of appeal without having paid the full amount owed on the judgment of foreclosure as required under MCL 211.78k. In lieu of granting the motion, this Court vacated the May 2015 judgment of foreclosure:

. . .The trial court committed manifest error. MCL 211.78k(7) specifically and unambiguously provides for an appeal of right from a judgment of foreclosure entered under this statutory foreclosure scheme, provided the appellant pays to the county treasurer the amount due on the property within 21 days after entry of the judgment. When granting the right to appeal, the Legislature possesses the "unquestioned authority" to impose as a "jurisdictional condition precedent" to an appeal the condition of payment of the amount of a delinquent tax decree and this condition precedent "may be neither waived by counsel nor dispensed with by court.'" In re Petition of Auditor General, 252 Mich. 367, 368-369; 233 N.W. 348 (1930). We REMAND this matter to the trial court for entry of a new judgment of foreclosure that does not include a provision that relieves New Products Corporation of its statutory obligation to pay the amount owed under the judgment as a condition to appealing. The May 20, 2015 order having been vacated, plaintiff's appeal and defendant's cross appeal are DISMISSED as MOOT. The parties may appeal from the new judgment in accordance with MCL 211.78k(7) and the applicable court rules. This order has immediate effect. MCR 7.215(F)(2). [In re Petition of Berrien County Treasurer for Foreclosure, unpublished order of the Court of Appeals, Docket No. 327688, issued June 10, 2015].

         On remand, the circuit court entered a July 27, 2015 amended judgment of foreclosure:

. . . that this Amended judgment is stayed until the period by which New Products Corporation may file a claim of appeal from this amended judgment has expired without any such claim of appeal having been filed. If an appeal is filed as to any particular parcel(s), then this Amended Judgment shall be stayed as to the parcel(s) under appeal until the Michigan Court of Appeals has reversed, modified or affirmed the same, and the Michigan Court of Appeals' decision has become final, provided that New Products Corporation complies with MCL 211.78k(7).

         On August 14, 2015, respondent paid $35, 436.87 to redeem five of the seven parcels and filed a claim of appeal from the Amended Judgment initiating this appeal. Petitioner again filed a motion to dismiss with this Court arguing that respondent had not paid the full amount due under the judgment as required under MCL 211.78k. This Court granted respondent's motion to dismiss, explaining:

. . .[T]he motion to dismiss this appeal is GRANTED because appellant has failed to pay the amount determined to be due to the county treasurer under the July 27, 2015 amended judgment of foreclosure as required by the plain language of MCL 211.78k(7) for it to pursue this appeal. We must apply this requirement of MCL 211.78k(7) in accordance with its plain and ordinary meaning which requires payment of the full amount due under the judgment as a condition for an appeal, not merely a partial payment. See Spectrum Health Hospitals v Farm Bureau Mutual Ins Co of Michigan, 492 Mich. 503, 515; 821 N.W.2d 117 (2012) (regarding requirement to apply statutory language in accordance with its plain and ordinary meaning). In this regard, that MCL 211.78k(7) requires payment of "the amount" determined to be due under the judgment reflects that only one amount is contemplated which can only be the one amount, i.e., the full amount, due under the judgment. See Robinson v Detroit, 462 Mich. 439, 461-462; 613 N.W.2d 307 (2000) (discussing meaning of definite article "the"). Because dismissal is required due to appellant's failure to pay the amount determined to be due under the judgment appealed from we do not need to reach the other issues raised by the parties. [In re Petition of Berrien County Treasurer for Foreclosure, unpublished order of the Court of Appeals, Docket No. 330795, issued March 2, 2016].

         Respondent filed an application for leave to appeal and a motion for immediate consideration with our Supreme Court on June 1, 2016. In lieu of granting leave to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.