Sherry Acoff v. US Bank National Association
332717
Mich. Ct. App.Oct 31, 2017Background
- Plaintiffs Sherry and Emerson Acoff sued to set aside a foreclosure by advertisement and quiet title after a sheriff’s sale of their home.
- Defendant U.S. Bank moved for summary disposition under MCR 2.116(C)(8); the trial court granted the motion and later denied reconsideration. Plaintiffs appealed.
- Plaintiffs alleged defendant failed to post the statutorily required foreclosure notice on the property and thus committed an irregularity in the foreclosure process.
- Plaintiffs did not allege prejudice or a causal connection between any alleged irregularity and loss of their property in their complaint; they first described potential remedies (TRO, converting to judicial foreclosure, obtaining financing) in response to the motion.
- The record included a recorded sheriff’s deed and affidavit of posting (presumptive evidence under statute) and an unsigned/not-notarized affidavit from plaintiff claiming she never saw a posted notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs pleaded an actionable claim to set aside foreclosure by advertisement based on alleged failure to post notice | Defendant failed to post the required conspicuous notice on the property (irregularity) | Plaintiffs failed to plead the elements required to set aside a foreclosure (fraud/irregularity plus prejudice and causation) | Court: Plaintiffs failed to state a claim; dismissal under MCR 2.116(C)(8) affirmed |
| Whether failure to plead prejudice and causation is fatal | Plaintiffs argued actual prejudice exists and could have sought injunctive relief or conversion if notified | Defendant argued plaintiffs made no such allegations in the complaint and thus cannot state a claim | Court: Plaintiffs did not allege prejudice or causal nexus in the complaint; claim fails |
| Whether plaintiffs may rely on new statutory theories (MCL 600.3204) raised in response brief | Plaintiffs argued defendant may have violated other posting statutes (eg, MCL 600.3204) | Defendant argued those claims were not pled and some cited provisions were repealed before posting | Court: New statutory theory not pled; dismissal stands |
| Whether trial court abused discretion by denying reconsideration | Plaintiffs claimed trial court failed to consider controlling caselaw (Kim) and prior communications showing fraud/prejudice | Defendant argued no palpable defect shown and communications did not cure pleading defects | Court: No abuse of discretion; reconsideration denied |
Key Cases Cited
- Lakin v. Rund, 318 Mich. App. 127 (motion under MCR 2.116(C)(8) tests pleadings only)
- Trademark Props. of Mich., LLC v. Fed. Nat’l Mortg. Ass’n, 308 Mich. App. 132 (foreclosure by advertisement permissible if statutory procedures followed)
- Kim v. JPMorgan Chase Bank, NA, 493 Mich. 98 (elements required to set aside foreclosure: fraud/irregularity, prejudice, causation)
- Diem v. Sallie Mae Home Loans, Inc., 307 Mich. App. 204 (applying Kim elements to foreclosure-by-advertisement claims)
- Bryan v. JPMorgan Chase Bank, 304 Mich. App. 708 (addressed standing and redemption-period issues following foreclosure)
- Denhof v. Challa, 311 Mich. App. 499 (appellate principle: issues not argued on appeal need not be considered)