Fannetta Watson v. Comerica Bank
330746
| Mich. Ct. App. | Mar 16, 2017Background
- Jack Simmons took a $45,000 HELOC from Comerica Bank in 2003 secured by a mortgage with a power-of-sale clause; Simmons died in 2009 and Fanetta Watson became personal representative of his estate and quitclaimed the property to herself in 2013.
- The estate defaulted, Comerica accelerated and foreclosed by advertisement; sheriff’s sale occurred December 30, 2014, and Comerica purchased and recorded a sheriff’s deed with supporting affidavits (including a deputy sheriff’s “affidavit of auctioneer”).
- Watson sued (Jan 2015) to set aside the sheriff’s sale, alleging Comerica failed to post the required 15-day copy of the foreclosure notice (MCL 600.3208) and committed fraud; she sought default judgment after attempting service by certified mail to an address for “Comerica, Inc.” rather than Comerica Bank.
- The trial court clerk entered default, but the court set aside the default after finding service defective; the court then granted Comerica summary disposition under MCR 2.116(C)(8), finding presumptive evidence of posting via recorded affidavits and that Watson lacked standing to challenge the sale after the redemption period expired.
- Watson’s motions for reconsideration were denied; the Court of Appeals affirmed the trial court on all grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether default and default judgment should stand | Service by certified mail to Comerica, Inc. was proper and default should result in judgment | Service was defective; Comerica was not in court at default so default must be set aside | Default was properly set aside for defective service; default judgment denied |
| Whether defendant had to pay plaintiff costs before moving after default was set aside | Comerica must pay costs plaintiff incurred relying on default before its motion can be considered | Because service was defective, court lacked jurisdiction at default and costs cannot be imposed under MCR 2.625(D)(3) | Court properly heard Comerica’s motions; no costs were owed because jurisdiction was never acquired by default |
| Whether plaintiff rebutted presumptive evidence that notice was posted under MCL 600.3208 | No copy was posted on the property; deputy/sales affidavits were not credible | Recorded sheriff’s deed and auctioneer affidavit are presumptive evidence of proper posting; plaintiff produced no admissible contrary evidence | Summary disposition proper: the recorded affidavits created a presumption of proper notice and plaintiff failed to rebut it, so she lacks standing to set aside the sale |
| Whether plaintiff’s equitable/promissory-estoppel/unjust-enrichment claims prevent dismissal | Comerica’s conduct estopped foreclosure; promissory estoppel and unjust enrichment apply | No specific promise pleaded; statutory remedy (redemption) controls; no fraud/accident/mistake shown | These equitable claims fail as a matter of law; dismissal proper |
Key Cases Cited
- Alken-Ziegler, Inc. v. Waterbury Headers Corp., 461 Mich 219 (discretionary standard for setting aside defaults)
- Shawl v. Spence Bros, Inc., 280 Mich App 213 (factors for good cause to set aside default)
- Trademark Props. of Mich., LLC v. Fed. Nat’l Mortg. Ass’n, 308 Mich App 132 (effect of sheriff’s deed and equitable interest after foreclosure by advertisement)
- Bryan v. JP Morgan Chase Bank, 304 Mich App 708 (redemption period expiration extinguishes mortgagor’s rights and standing)
- Diem v. Sallie Mae Home Loans, Inc., 307 Mich App 204 (elements required to challenge a foreclosure sale procedure)
- Senters v. Ottawa Sav. Bank, 443 Mich 45 (equity will not override a statute that prescribes the relief and requirements)