552 F. App'x 566
6th Cir.2014Background
- In 2004 the Lauderdales mortgaged a Detroit house to Wells Fargo; they defaulted in 2008 and Wells Fargo (later assignee HSBC) commenced foreclosure. First American was hired to manage the asset and retained D&D Innovations to "secure" the property.
- On September 17, 2008, D&D agents went to the Vernor property, changed locks, and allegedly denied the Lauderdales access and removed personal property; a sheriff’s sale occurred November 12, 2008.
- Plaintiffs sued Wells Fargo and First American in 2010 (D&D was named later but never served and went out of business). Defendants removed to federal court; district court granted summary judgment for defendants and dismissed unserved D&D without prejudice.
- Plaintiffs relied primarily on unsworn interrogatory answers and a police report to oppose summary judgment; the district court found those materials inadmissible and granted summary judgment dismissing all claims.
- Key claims: violation of Michigan’s Anti‑Lockout Statute (MCL § 600.2918), common law and statutory conversion, trespass to chattels, unjust enrichment, and Michigan Consumer Protection Act (MCPA) violations.
- On appeal the Sixth Circuit affirmed, concluding plaintiffs’ anti‑lockout claim was time‑barred and that plaintiffs lacked admissible evidence to defeat summary judgment; the MCPA did not apply to the securing/foreclosure activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Anti‑Lockout claim (MCL § 600.2918) | Lauderdales: discovery rule delayed accrual until First American’s third‑party complaint (2011) revealed D&D identity; equitable tolling applies because defendants concealed D&D. | Defendants: Lauderdales discovered injury and causal link by Sept. 17, 2008; suit filed July 19, 2010 is beyond 1‑year limitations; no basis for equitable tolling. | Claim untimely — accrual in Sept. 2008; equitable tolling not warranted; anti‑lockout claim barred. |
| Conversion / Trespass to chattels / Unjust enrichment | Lauderdales: agents removed personal property and exercised dominion; interrogatory answers and police report show loss. | Defendants: plaintiffs produced no admissible evidence (unsworn interrogatories and hearsay police report inadmissible); summary judgment proper. | Held for defendants — plaintiffs presented no admissible evidence to create genuine issues; claims dismissed. |
| Admissibility of plaintiffs’ evidence (unsworn interrogatories; police report) | Lauderdales: interrogatory answers should be considered; objecting at summary judgment hearing was untimely and inequitable. | Defendants: interrogatory answers were unsworn (not under penalty of perjury), police report contains hearsay; objections permissible at hearing. | District court correctly excluded unsworn interrogatories (28 U.S.C. § 1746 requirement) and police report (hearsay). |
| Applicability of MCPA | Lauderdales: MCPA covers the conduct and entitles them to relief. | Defendants: MCPA inapplicable because (1) securing property is not a consumer service for personal/household purposes, and (2) mortgage/foreclosure activity is authorized by federal/state law and exempt. | MCPA does not apply; defendants’ conduct falls outside MCPA scope and is within authorized lending/foreclosure activities. |
Key Cases Cited
- Griffin v. Finkbeiner, 689 F.3d 584 (6th Cir. 2012) (standard of review for summary judgment and viewing evidence in nonmovant’s favor)
- Villegas v. Metro. Gov’t of Nashville, 709 F.3d 563 (6th Cir. 2013) (summary judgment standard)
- Moll v. Abbott Labs., 506 N.W.2d 816 (Mich. 1993) (Michigan discovery rule elements for accrual)
- Harris v. J.B. Robinson Jewelers, 627 F.3d 235 (6th Cir. 2010) (unsworn statements insufficient for summary judgment; § 1746 requirement)
- Miller v. Field, 35 F.3d 1088 (6th Cir. 1994) (police report statements are hearsay and generally inadmissible to prove the truth of asserted matters)
- Graham‑Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552 (6th Cir. 2000) (doctrine and standard for equitable tolling)
- Wiley v. United States, 20 F.3d 222 (6th Cir. 1994) (waiver/forfeiture of evidentiary objections and exception for gross miscarriage of justice)