Kim v. JPMorgan Chase Bank, NA
813 N.W.2d 778
Mich. Ct. App.2012Background
- Plaintiffs refinanced their home with Washington Mutual Bank and granted a mortgage recorded July 25, 2007.
- FDIC, as receiver after the Bank’s 2008 closure, entered a purchase and assumption agreement with defendant.
- Defendant foreclosed by advertisement after default, with notices published May–June 2009 and sheriffs sale on June 26, 2009.
- Plaintiffs sued November 30, 2009 to set aside the sheriffs sale and defendant moved for summary disposition.
- Trial court granted summary disposition for defendant, relying on a 2004 AG opinion that recording wasn’t required when title passed by operation of law.
- Court reviews de novo; held that recording before sale was required by statute and sale was void; reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether recording before sale is required when foreclosing by advertisement by a party other than the original mortgagee | Defendant lacked statutory authority absent pre-sale recording. | Acquisition by operation of law from the FDIC exempts recording prior to sale. | Recording required; sale void; remanded |
Key Cases Cited
- Coblentz v City of Novi, 475 Mich 558 (2006) (de novo review of summary disposition standards)
- Detroit v Detroit Plaza Ltd Partnership, 273 Mich App 260 (2006) (statutory interpretation of foreclosure provisions)
- Davenport v HSBC Bank USA, 275 Mich App 344 (2007) (foreclosure lacking statutory authority is void ab initio)
- Dohm v Haskin, 88 Mich 144 (1891) (right to foreclose by advertisement requires strict compliance with statute)
- In re Wayne Co Prosecutor, 232 Mich App 482 (1998) (courts may not read into statutes provisions not included by Legislature)