Kubicki v. Mortgage Electronic Registration Systems
292 Mich. App. 287
| Mich. Ct. App. | 2011Background
- Action to set aside a sheriff's foreclosure sale; circuit court granted summary disposition for defendants under MCR 2.116(C)(10); appellate review de novo; foreclosure sale upheld.
- Chodak conducted the foreclosure sale and executed the Sheriffs Deed, allegedly misrepresenting himself as a deputy sheriff.
- Plaintiff argues Chodak was not properly appointed as a deputy sheriff and that there was no recorded appointment on file with the county clerk.
- Court analyzes whether Chodak was properly deputized under MCL 51.70 as a special deputy via the Agreement between Sheriff Bouchard and County Civil Process Services, Inc.
- Court also examines whether MCL 51.73’s written appointment and filing requirements apply to special deputies and whether the oath filing issue affects validity.
- Court ultimately holds there is no genuine issue of material fact that Chodak was properly deputized as a special deputy and that the foreclosure sale and Sheriffs Deed were valid under the statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chodak was validly deputized as a special deputy under MCL 51.70 | Chodak not properly appointed; no written appointment on file | Agreement constitutes a valid deputization as special deputy | Chodak validly deputized as special deputy; sale valid |
| Whether MCL 51.73 filing requirements apply to special deputies | Appointment must be written and filed for deputy sheriffs | 51.73 applicability does not extend to special deputies; oath filing not required | 51.73 filing applicable to standard deputies; not required for special deputy under Agreement |
| Whether the foreclosure sale's legitimacy is undermined by alleged misrepresentation of Chodak’s status | Chodak called himself deputy; misrepresentation questions validity | Special deputy powers documented; no fraud or irregularity shown | Foreclosure sale and Sheriffs Deed valid; no strong case of fraud or irregularity shown |
Key Cases Cited
- Markoff v Tournier, 229 Mich 571; 201 NW 888 (Mich. 1925) (strong case of fraud or irregularity required to set aside foreclosure)
- Sweet Air Investment, Inc v Kenney, 275 Mich App 492; 739 NW2d 656 (Mich. App. 2007) (need strong reason to set aside statutory foreclosure)
- White v Burkhardt, 338 Mich 235; 60 NW2d 925 (Mich. 1953) (statutory foreclosure contract; avoid strict construction)
- Silberstein v Pro-Golf of America, Inc, 278 Mich App 446; 750 NW2d 615 (Mich. App. 2008) (summary disposition proper when no genuine issue of material fact)
- United States v Garno, 974 F Supp 628 (E.D. Mich. 1997) (relevant to understanding considerations of procedural irregularities)