Llanos E Venegar v. Fifth Third Mortgage Company
330565
Mich. Ct. App.Jan 26, 2017Background
- Plaintiffs (Llanos and Frances Venegar) bought a house in 2009 and fell behind on mortgage payments secured by Fifth Third Mortgage Company.
- A sheriff’s sale occurred on January 21, 2015; plaintiffs did not redeem and filed this action exactly six months later (at the end of the statutory redemption period) seeking to prevent eviction and to halt the sale.
- Plaintiffs alleged (1) defendant failed to conspicuously post the required foreclosure notice at the premises under MCL 600.3208 and (2) defendant induced them to believe a loan modification would delay the sale (the second theory was abandoned on appeal).
- Defendant submitted sworn affidavits and a date-stamped photograph showing a notice posted on the front door and copies of published notices; plaintiff initially relied on an unsigned, unnotarized, conclusory affidavit and later submitted a properly notarized version only after the trial court’s decision.
- The trial court granted summary disposition for defendant and denied leave to amend; the Court of Appeals affirmed, finding plaintiffs produced no competent evidence to create a genuine factual dispute about notice and that their proposed amendment was futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant failed to post required conspicuous notice under MCL 600.3208 | Venegar: they never saw a posted notice at the premises, so notice was not posted | Fifth Third: produced sworn affidavits, proof of publication, and a date-stamped photo showing notice on the door | Court: Held defendant met its proof; plaintiffs produced no competent evidence to create a genuine issue of material fact, so summary disposition affirmed |
| Whether plaintiffs had standing to challenge the foreclosure after redemption period expired | Venegar: sought extension/tolling of redemption period alleging misconduct deprived them of timely challenge | Fifth Third: argued plaintiffs lacked standing because they failed to redeem within statutory period | Court: Assumed without deciding plaintiffs had standing for purposes of appeal but disposed of the case on the merits because plaintiffs failed to produce evidence of irregularity |
| Admissibility and sufficiency of plaintiff’s affidavit evidence | Venegar: submitted affidavit (initially unsigned/unnotarized; later cured) asserting complaint true | Fifth Third: argued initial affidavit was not a valid affidavit and that conclusory assertions are insufficient | Court: Initial affidavit was legally insufficient; even if considered, it was conclusory and could not create a triable issue |
| Whether trial court abused discretion in denying leave to amend | Venegar: proposed amended complaint added facts and counts | Fifth Third: amendment was futile and did not add materially different allegations | Court: Denial proper because proposed amendment was futile and would not create a genuine factual dispute |
Key Cases Cited
- Maiden v. Rozwood, 461 Mich. 109 (1999) (standard for reviewing summary disposition and MCR 2.116(C)(10) evidence view)
- Bryan v. JPMorgan Chase Bank, 304 Mich. App. 708 (2014) (mortgagor who fails to redeem loses standing to challenge sale absent exceptional showing)
- Kubicki v. MERS, 292 Mich. App. 287 (2011) (egregious irregularity or fraud can justify setting aside a sheriff’s sale)
- Rataj v. City of Romulus, 306 Mich. App. 735 (2014) (unsigned, unnotarized affidavit not an affidavit for evidentiary purposes)
- Kozak v. City of Lincoln Park, 499 Mich. 465 (2016) (conclusory affidavits insufficient to defeat summary disposition)
- In re Handelsman, 266 Mich. App. 433 (2005) (credibility conflicts ordinarily preclude summary disposition unless reasonable minds could not differ)