*1 492 Mich 208 ROAD OF SOUTH FRANCIS In re RECEIVERSHIP KOSMALSKI) (PRICE v (Calendar 9). July 7, 2012 Argued Decided No. March Docket No. 30, 2012. Duffy-Price, personal representatives ofthe Price Erin as and Nastassia Price, Ingham brought Darryl an action in the Circuit H. estate others, judgment against Lori Jean Kosmalski and to collect a Court by seeking against property, which owned Kosmal- a lien certain subject mortgage preexisting Dart Bank. At the and to a held ski Collette, J., Duffy-Price, court, E. request of the William Price and receiver, and, appointed in with the Woods as accordance Thomas order, receivership possession property and he took the financed By property repairs the the in order to make saleable. substantial order, already receivership had the court entered its Kosmalski time foreclosure-by- begun Dart had defaulted on the statutory Following expiration proceedings. the of the advertisement purchased redemption period, the at the Dart foreclosure subsequently mortgage. the due on moved sale for balance Woods sale, point the at which Dart intervened to void foreclosure opposition. denied Woods’s motion but extended The court statutory during redemption period, was still which Woods unable buyer. redemption period competitive a the extended find When payment expired, liable for of his costs and Woodsmoved to hold Dart proceeds granted the sale The court a hen on net fees. Woods receivership gave costs and of the for the amount of preexisting mortgage. appealed. The Dart’s Dart hen over EJ., Appeals, F. Kelly Ronayne K. Court O’Connell, JJ, affirmed, prior holding that the holder of a recorded Krause, mortgage may required pay costs when it he irrespective receivership, the fact benefited from explicitly prior did recorded consent to holder party to the case until after the receiver was or become (2011). granted App Supreme appointed. Court (2011). appeal. 490 Mich 902 Dart leave to joined by opinion by Chief Mary In an Justice Beth Kelly, Young Supreme and Justices Markman and Zahra, Justice Court held: In re paid The common-law rule that a receiver is entitled to be first-priority his or her on a apply services does not basis 600.3236, of a context foreclosure under advertisement MCL provides purchaser following which of a sheriffs deed *2 by foreclosure advertisement receives the same that title the mortgagor mortgage had at the time the was executed and that only subsisting prior purchaser’s the liens affect interest. essence, Michigan foreclosure-by- 1. In has had the same statute, advertisement statute since The MCL 600.3236 as currently codified, provides purchaser the that of a sheriffs deed following foreclosure advertisement the takes same title that mortgagor mortgage the had at the time the was and executed only prior subsisting purchaser’s liens affect the interest. The mortgagee’s statute renders absolute the title to the it purchased proceeding, extinguishing any right, in the foreclosure title, mortgage and interest created the after was executed. How- ever, preexisted lienholders whose the interests execution of the mortgage following rights will the have same foreclosure as those previously mortgage Thus, held at the time the was executed. statute, priority under the the order of at the time of the mortgage’s execution must be maintained after the foreclosure Accordingly, requires any sale. prop- the statute interests in erty mortgage extinguished created after the was executed will be upon expiration redemption period sale, a after sheriffs but any preexisting mortgage’s interests the execution will not be grantee affected the sale and the under a sheriffs deed willtake property subject preexisting the to those interests. Because Dart advertisement, property by ap- on foreclosed the MCL 600.3236 plied priority, given and Dart’s first-recorded had first that no other liens existed when the was executed. statute, lien, Under the the receiver’s which was after created the mortgage, prejudice execution of Dart’s priority could not Dart’s interest. unpaid 2. The common-law rule that receiver’s fees and compensation, costs, which are in the nature of administrative paid be from the or funds held before prior those funds are made to available creditors not has been applied Michigan purchaser to divest the of a sheriffs deed of statutory right priority. Application his or her of the common- irreconcilably application law rule would conflict with the of MCL Accordingly, postdates 600.3236. when a receiver’s the lien mort- gage subject statute, to foreclosure under the the receiver’s lien purchaser any must be to subordinated the interests of the prior lienholders. Mich 208 statutory right first-priority mortgagee may its to waive 3. A unequivocally explicitly and waiver of its lien if the satisfaction jurispru- However, consistently Michigan’s given. waiver with object appointment of a dence, mortgagee’s failure to to generally not acquiescence does in the or receiver by holding the Appeals erred the Court waiver and constitute legal authority support contrary. Court of Nor is there benefiting party merely from a receiv- Appeals’ conclusion that a mere ership may be liable for the receiver’s costs fees. actions does receipt the result the receiver’s of benefit as Only mortgagee justify disregarding has 600.3236. when MCL statutory unequivocally of first will waived the prior his or her entitled to satisfaction of receiver be consistently did not rule. Because Dart with the common-law statutory right priority, the explicitly waive recovering receivership expenses precluded from Dart. satisfy the receiver’s there insufficient funds to 4. When are 2.622(D) receivership, upon MCR and fees termination costs permits application of the receiver to set a circuit court on require compensation party requesting the receivership. to bear the costs associated with Reversed; entry court of an case circuit remanded *3 releasing Dart Bank. the funds favor of order escrow by joined and Justices Justice Kelly Marilyn Cavanagh, mortgagee only dissenting, disagreed that a waives Hathaway, right superior priority if mort- under MCL 600.3236 the its of reordering receivership gagee expressly the or the of consents to mortgagee may priorities, and have held that a also waive would acquiesces mortgagee and benefits from the if the to its may receivership. Michigan that caselaw demonstrates a waiver case, acquiesced by way acquiescence. Dart to of In this occur objected receivership it never to the receiver’s the because efforts, despite knowledge its receiver’s indicated the actions receiver, engaged willingness a to the in affirmative work with right, and that it waived a known conduct sufficient to show had preserve, repair, and from the receiver’s efforts to benefited protect property. the Preexisting Mortgages by the Advertisement —Interests 1. —Foreclosure Mortgage — After the Execution Interests Created Execution Mortgage — Priority. of a purchaser provides deed that the sheriffs MCL 600.3236 by that following takes the same title foreclosure advertisement mortgagor mortgage had time the was executed and at the the interest; subsisting purchaser’s the only prior affect liens the In re requires any property statute interests in created the after extinguished upon expiration will be was executed redemption sale, preex- period any after a sheriffs hut interests isting mortgage’s by execution will not be affected the sale and subject grantee under a deed sheriffs will take to preexisting interests. those Mortgages - — — by 2. Prior- Foreclosure Advertisement Receiver’s Lien ity. postdates subject by

When a receiver’s lien to foreclosure advertisement, the receiver’s lien be to the must subordinated purchaser interests of the and lienholders whose interests preexisted mortgage; of the execution rule common-law unpaid compensation may paid that a receiver’s fees and be receivership or funds held in before are those funds prior apply statutory made available to creditors does (MCL 600.3236). by foreclosures advertisement Mortgages — — — Priority Foreclosure Advertisement Waiver Priority. mortgagee may statutoiy right A first-priority waive satisfaction following statutory lien of its if foreclosure advertisement explicitly unequivocally given, waiver is mortgagee’s hut a failure object acquiescence of a receiver or in the (MCL 600.3236). appointment generally does not waiver constitute — — Receiverships Liability 4. Costs for Costs. application

Upon when there are insufficient funds to satisfy the upon costs and fees termination of a receiv- ership, the circuit compensation court set the receiver’s require party requesting to hear the costs (MCR 2.622[D]). associated with the Falk, Allan Falk), PC. Allan (by and Cummins Woods Woods) (by Thomas E. for Thomas E. Woods. Firm,

The Hubbard Law PC. Peter A. Teholiz (by Woodworth), Michael G. for Dart Bank.

Amici Curiae:

Kus, Associates, Ryan & Kus, PLLC Michael A. (by J. Greco, Marsha and Jeffrey Horowitz), S. Community of Michigan. Bankers 492 208

212 MICH Opinion of the Court O. (by & LLP Jeffrey Judd Warner Norcross Mazzocco) for L. Breay, H. and Nicole Birkhold, James Michigan Bankers Association Michigan League. Credit Union Anderson, L. McClel- (by Gregory LLP

McClelland & Hagen), Michigan A. for the Associa- land Melissa tion of Realtors.

Mary J. involves the issue of This case Kelly, Beth between a court- priority competing liens of a receiver and the holder first-recorded appointed DeWitt, Michigan. real located on Woods, Thomas seeks to recover receiver ship expenses holder of first-recorded before In Bank, mortgage interest. mortgage, Dart satisfies its circuit order a first- affirming placing court’s on the in the amount of priority lien relied, in Appeals part, the Court of expenses, v Bailey1 decisions in v and Fisk Bailey on Court’s 2 Hydraulic Exchange Fisk and own decision in Attica Seslar,3 did not to and object v to hold that because Dart “may it be receivership, benefited from the therefore receivership expenses.”4 held for the We responsible deter granted application appeal Dart’s for leave that receivership mine rule whether common-law controlling, entitled to is priority are first prior of a recorded notwithstanding holder statutorily entitled to under MCL 600.3236, mortgagee explicitly whether a must 1 (1933). Bailey Bailey, 215; v 160 247 NW 2 (1952). Fisk, 513; v Fisk 53 356 NW2d 3 Seslar, 577; Hydraulic Attica Exch v App Mich (2004). (Price Kosmalski), Receivership re Road South Francis v (2011). App Mich NW2d 750 *5 In re Opinion of the Court consent to the before the mortgagee may be required pay those sums associated therewith. Michigan state,

Before became a English de- courts veloped general rule that a receiver is entitled to be paid his or her services on a first-priority basis. 1846, Michigan revised and consolidated its statutes. Included within the revised RS, statutes was 1846 ch 130, § 10, provided which the purchaser of a sheriffs deed following foreclosure by advertisement holds same title that mortgagor had at the time the mortgage was executed only and that prior subsist- ing liens affected the purchaser’s interest. In all mate- rial respects, the statute has remained unchanged since 1846 and currently exists as MCL 600.3236. Following of the adoption pertinent foreclosure-by-advertisement statute this Court applied English common-law rule in situations not involving foreclosure by advertisement. So far discern, as we can rule common-law has never been applied Michigan to divest the purchaser of a sheriffs deed purchas- of the statutory er’s right priority. requires

This case us to determine whether general common-law rule permitting the court to give priority to a receiver should be extended to the foreclosure-by-advertisement context even though ap- plication of that rule would priorities contradict established a statute that has been in existence since We decline to extend the common-law rule to the situation Rather, before us. we hold that MCL 600.3236 and, controls by its plain language, requires liens preexisting mortgage that the subject foreclosure remain in the same order of priority they as existed at the time of the mortgage’s execution. Assum- ing a postdates receiver’s lien the mortgage subject to Mich 208

Opinion of the Court lien 600.3236, as the receiver’s under MCL foreclosure under here, the receiver’s interest does it is clear that interests of the lien be will subordinated Further, clear lienholders. it is purchaser any prior may waive its mortgagee from our caselaw that a Thus, lien. we also of its first-priority satisfaction consistently that forecloses with mortgagee hold that a statutory right MCL waive its 600.3236 *6 occurs, to and, if that the receiver be entitled if the mortgagee, only before the but compensation and mortgagee’s explicitly unequivocally waiver given. in case failed to Appeals

Because the Court of this 600.3236 and erro- recognize applicability MCL in and Fisk to neously holdings Bailey extended that even in the absence of support its conclusion consent, Dart could nevertheless be re- affirmative fees, to the receiver’s costs and we reverse quired pay and remand judgment Appeals of the Court of entry releasing case to the circuit court for of an order in of Dart. the escrow funds favor I. FACTS AND PROCEDURAL HISTORY property previ- The real involved this action was Jr., ously Sterrett, by owned Rudaford and secured Dart, held recorded single mortgage duly which was 8, 2007, August Upon April on Sterrett’s death the real to Lori Jean Kosmal- property bequeathed was time, $350,000, property ski. At that was valued at $170,000. than and the balance was less 2007, Erin September Duffy- In Nastassia Price and an to collect a against Price instituted action Kosmalski they in an unrelated lawsuit. When learned judgment had inherited the real property that Kosmalski Sterrett, they appointment moved for the of a receiver In re Opinion of the Court satisfy and the real in order to all or property seize sell of the Dart was not part judgment against Kosmalski. Duffy-Price’s of Price and motion for provided notice receivership. April granted the circuit court Price and

Duffy-Price’s request appointed and later, Thomas Woods as receiver.5 One week the circuit stipulated appoint- court entered an amended order of ment, which authorized the receiver to take immediate keep, operate, of the and possession property manage, and it until further order of the circuit court. preserve and powers duties conferred on the receiver inci- authority dent to his included the expend property’s equity or borrow funds for the maintenance, operation repair, necessary preserve and make it saleable. uninhabitable, the property Because the receiver $20,000 borrowed to finance substantial approximately repairs. repairs cleaning These included the home and grounds, repairing heating conditioning and air systems, installing system, repairing an alarm the wa- system area, ter pool installing fence. *7 Approximately one month before the receiver’s ap- pointment, Kosmalski had defaulted on the mortgage, proceedings by and Dart initiated foreclosure advertise- 5, 2008, ment in At the June mid-April 2008.6 sheriffs sale, Dart —the sole purchased property bidder — $169,312.50, which was the balance due on mort- 5 April 18, 2008, counsel, Jenkins, acknowledged On Dart’s former Jon 10, 2008, receipt April facsimile his of the circuit court’s However, 2009, May 20, order. in an affidavit dated Jenkins asserted that process it was not until after initiation of the foreclosure that Dart learned of the order. 2008, May 27, acknowledged In a letter dated the receiver that he was aware of Dart’s foreclosure action and indicated that he did not intend to process. interfere with the 492 MICH Court and obtained a sheriffs deed to the

gage, property subject one-year 18, to a On redemption period.7 May 2009, sale, arguing the receiver to void the moved order, Dart had the court’s receivership violated which posses- interference with the receiver’s prohibited management sion and of the Dart property. subse- motion, intervened in quently opposition assert- ing that Dart had initiated validly foreclosure that, and re- proceedings during pendency it had not interfered demption period, with the receiv- er’s of the The circuit possession property. court denied the receiver’s motion but extended the redemption 25, period August 2009, until allow receiver additional time to sell the property. When receiver was unable to sell the within the property extended redemption period, Dart received title to property August 26, effective 2009,

In October the receiver filed a motion seeking to hold Dart for payment liable of the and costs fees incurred in the administration of the The receivership. $41,874.57 receiver claimed in total expenses, which reflected the costs incurred in repairing, maintaining, and to sell the attempting property, profes- fees for his services, sional attorney costs for fees incurred aas result of the receiver’s motions to enforce the receiver- order. At the ship hearing, motion argued that because Dart had acquiesced the receivership expenditures, the receiver’s he was entitled to reimbursement of his costs and fees from Dart. Dart responded that it could not be charged with the receiv- er’s costs fees when it had not consented to those surcharges. reappraised time, on June 2009. At that the value $245,000. had fallen to *8 In re the Court

The circuit court accepted argument receiver’s 5, 2009, entered an order on November approving report receiver’s final and granting the receiver a lien on the proceeds net from the sale of the $41,874.57, amount of given which was priority over preexisting Dart’s mortgage. The lien order further required that the relinquish possession of the property to Dart and discharged the receiver and can- celed his bond.8

Dart appealed as of right the circuit court’s order granting receiver a first-priority lien over the prop erty, arguing that a receiver is not entitled to any greater rights than original owner would have had and, therefore, the receiver took title to the property subject to Dart’s preexisting mortgage. The Court of Appeals and, affirmed citing Fisk,10 Bailey,9 Attica, held that Dart could be held responsible for the receiv ership expenses.12 Under its interpretation of these cases, the Court of Appeals concluded that even without explicitly consenting to the appointment, Dart could required nevertheless be pay the receiv er’s costs and fees it because benefited from the receive rship.13

We granted leave to appeal consider, in relevant part, “whether the statutory right of first priority 8 Dart raised application for the first time in appeal for leave to applicability 2.622(D), this Court the of MCR which confers on the circuit court party sought discretion to direct who pay Thus, receiver to expenses. the circuit court did not consider the granted relevance of the court rule when it relief in favor of the receiver. 9 Bailey, 262 Mich 215.

10 Fisk, 333 Mich 513.

11 Attica, App 577. Receivership, In re App 13 Id. at 299. 492 MICH Opinion of the Court *9 MCL mortgage, to the holder of the recorded

belonging that a receiv- the common-law rule 600.3236, overrides priority” to first and fees are entitled er’s costs to affirmatively consent mortgagee a must “whether required pay be of a receiver to .. . .”14 costs and fees receiver’s REVIEW II. STANDARD OF authority to order the circuit court had the Whether for the pay of a first-recorded the holder explicitly it did not of a to which expenses this Court reviews de is a of law that question consent are also Questions statutory interpretation novo.15 are findings de A circuit court’s factual reviewed novo.16 error, are legal for clear and its conclusions reviewed de novo.17 reviewed

III. ANALYSIS to first statutory right Dart that it has asserts under MCL 600.3236 and priority subsequently cannot be made subordinate to interest on the receivership expenses. incurred hand, grants rule argues other common-law despite the existence priority, first Resolution of any preexisting property. liens on understanding an dispute requires first developed that have on principles common-law payment issue of the of receivers’ liens. 14 (Price Kosmalski), 490 Mich 902 (2011). In re Price Estate v Because appeal, dispositive of this it is unnec these issues are resolution granting essary leave. the third issue in our order to address 15 Attica, App at 588. (2008). Osantowski, 103, 107; People v Mich NW2d 799 (2010). Twp, 556, v Putnam Hendee In re Opinion of the Court

THEA. COMMONLAW It is well established that our common law is de- England,18 and, scended from consequently, the law of receiverships Michigan generally adopted from English common As law far back as the English Chancery Court of recognized that the “master is to [a allow receiver] a reasonable salary for his care and

pains therein.”19 In the event that a competing property existed, interest case, as the present the English Chancery Court of and the Court of Common Pleas consistently held that a receiver was entitled to this “reasonable salary” for the receiver’s services and ex- penditures on a first-priority regardless basis of which *10 party ultimately prevailed or was held liable to pay for the receiver’s and services expenditures.20

We noted this common-law rule in In re Dissolution Smith Henry Floral Co21when we held that “the of compensation of the receiver and his counsel are part of court administrative costs and entitled to priority over 18 (1886). Lamphere, 105, 108; re 27 NW 882 19 Berkley, Eng 390; Carlisle v Rep Lord 27 Rep (Ch, Ambler’s 599 1759). 20 O’Callaghan, 844; See Malcolm Eng Rep Myl 52; v 40 3 & Cr 1SC (OS) 1837) (Ch, (holding Jur 838 that a receiver is entitled to have out of by the funds collected properly or realized him his costs and fees incurred discharge receiver); in the Morison, of his Myl duties as Morison v 4 & Cr 1838) (in (Ch, 215 estate, a suit to administer a West Indian a court- appointed consignee repayment was held corpus entitled to out of the of fees, given estate his costs and priority which were to be over competing suit); Dyneley, Eng 1038; claims in the Rep Gilbert v 133 12; Scott, (1841) Man & G SC 3 (holding NR 5 Jur 843 that the moneys was entitled to deduct from the received him the reasonable costs and fees he incurred in the administration of the those, applying part, in whole or in in satisfaction of before interest). outstanding mortgage Henry Co, In re Dissolution 301-302, Smith Floral of (1932). 306; 244 NW 492 Mich 208 the Court of [the] lien on constitut[ing] first certificates reasoned: The Court assets.”22 attorneys is out receiver and his compensation of a lien, legis, and no autho property in custodia of funds or priority court, property has of on the funds or rized lien, granted holders costs. The court administrative such certificates, superior to such was not the receiver’s of costs are not at all costs. Administrative administrative of lien, lien on assets has no nature and first expenses.[23] such court costs City Trust Co v Detroit year later Detroit One 24Co, common- general applied Service we likewise entitled held that the receivers were rule when we law earned in profits to deduct their fees in receivership, held of the business operation equity redemption, from the sale of the proceeds before unmortgaged property proceeds from sale as dividends to creditors.25 those funds were distributed later, Rite-Way Mfg And in In re Tool & wherein Co,26 liquidation proceeds this Court addressed whether be held in should personal property on the receiver taxes assessed applied toward mort satisfying preexisting before ship property similarly held that receiv indebtedness, this Court gage We stated: priority. er’s costs were entitled to first 22Id. at 302-303. added). (emphasis Id. at 302 *11 24 Co, 14, 51-53; City 247 NW Detroit Trust Co v Detroit Serv (1933). 76 (directing deductQ ... id. at 51 the trial court to See “estimateG paid from such of the .. . that must be the further purposes”) (emphasis they

profits available dividend become before (“In added), determining the amount of the dividends to be and id. at 52 paid, fair sum should he estimated and deducted for fees of added). charges.”) (emphasis attorneys, other and for all lawful (1952). Co, Rite-Way Mfg NW2d 373 & In re Tool In re Opinion of the Court [T]he apply receiver should received from first funds liquidation (including assets the chattel mortgaged property) payment in the costs administra receivership, including tion involved, taxes herein and the fees of the attorney by receiver and his as fixed court; following and thereafter in the apply order receiver (2) ship in payment funds his hands in the chattel (3) (4) mortgages; general creditors; claims of funds, any, balance of such if partners.[27] Henry Smith, Co, Detroit Trust and Rite-Way Tool, therefore, applied the common-law rule that the re ceiver invokes here: that a unpaid fees compensation, which are the nature of “administra costs,” tive may be paid from the property or funds held in receivership before those funds are made available to prior creditors. None of cases, however, those involved foreclosure advertisement. And while the pertinence of the common-law rule seems apparent, the Court of Appeals erred failing recognize that provision foreclosure-by-advertisement statute, MCL 600.3236, is directly applicable to this matter and that no Michigan case applied has common-law rule this context.28

B. STATUTORYRIGHT OF PRIORITY Notwithstanding the receiver’s contrary assertion, the plain language of MCL 600.3236 creates a statutory added). (emphasis Id. at 558-559 28 The issue whether apply rule from these cases continues to presented us, outside of the context in this case is not before and we leave question day. Further, resolution of that speculate for another we do not whether, statute, absent the the receiver in this case would have been superior priority entitled to mortgagee because, over Dart as the assum ing general applied common-law rule would have in those circumstances, it is not ascertainable from what source the receiver’s compensation payable given would have been the function of MCR 2.622(D). opinion. See note 8 of this *12 492 Mich 208

222 the Court of statute, our a interpreting of When right priority.29 give and effect is to ascertain goal primary indicator of that intent intent.30 The best Legislature’s statutory lan- construing language used.31 When is and in its as a whole we must read statute guage, context, every each and word its giving grammatical defined.32 meaning unless otherwise ordinary and plain unambiguous, clear and then statutory language If is permitted, neither nor required judicial construction written.33 applied must be as statute a legal effect of sheriffs MCL 600.3236 describes expiration sale upon deed obtained at a foreclosure period.34 provides The statute redemption the applicable in full: deed be premises

Unless the described such shall redemption as the time limited for such redeemed within 29 enacted in 1844 and subse The first version of this statute was statutes, quently included in the 1846 revision and consolidation RS, 130, nearly Michigan § years ch 10 10 after became a state. See 1846 (establishing purchaser § deed PA that the of a sheriffs and 1844 6 by mortgagor acquires at the time the the interest held executed). provision and was underwent several minor amendments compilations subsequent it was reenacted in 1961 as included in before (effective January 1, 1963), Act in the Revised Judicature MCL 600.3236 however, (RJA), seq. respects, material the statute MCL 600.101 et In all unchanged remained since 1846. has 30 53, 60; Sys, Mich 631 NW2d 686 Wickens v Oakwood Healthcare 465 (2001). 31Id. 32 Club, 155, 160; 8.3a; Country MCL Veenstra v Washtenaw (2002). 645 NW2d (1999). Ward, 230, 236; Valley Mich Sun Foods Co v sale, mortgage containing power mortgagor like If defaults on a here, at a be foreclosed on sold Dart’s sale, through Upon that MCL 600.3201 600.3224. sheriffs sale. See deed, only acquires if the

purchaser which becomes effective sheriffs redemption mortgagor or her within the does not exercise his 600.3232; 600.3228; applicable statutory MCL window. See MCL MCL 600.3240(1). re Opinion of the Court provided, hereinafter thereupon such deed shall become named, grantee shall vest in the therein his operative, title, assigns, right, heirs or all the and interest which the mortgagor had at the time mortgage, the execution thereafter, except any parcel or at time parcels as to or *13 canceled, which have been redeemed and as hereinaf provided; thereafter, ter and the record thereof shall for all purposes be deemed a valid record of said deed without person having any but no re-recorded, valid subsist being ing upon mortgaged premises, lien any or part thereof, created the lien mortgage effect, such took shall be before prejudiced sale, by any rights such nor shall his or interests any way be in thereby.[35] affected The first clause under this provision describes the legal effect and operation of a deed upon the mortgag- or’s failure to statutory exercise its right of redemption following foreclosure. The first clause of MCL 600.3236 plain makes that if property is not redeemed within the applicable window, statutory then the deed becomes “operative,” vesting grantee “all right, title, and interest which the mortgagor had at the time of the execution of the mortgage . . . .” This clause refers to rights those that existed at the time that the mortgage subject to foreclosure was executed. grantee The thus succeeds to the rights same greater and no —no fewer —as those held the mortgagor when the mort- gage was By executed. logical implication, this first clause renders absolute the mortgagee’s title to the property it purchased in a foreclosure proceeding, ex- tinguishing any title, “right, and interest” created sub- sequent to the creation of the mortgage being foreclosed upon, which includes liens created the execution after the mortgage.36

35 Emphasis added. argument, argued At oral pertinent the receiver statutory- that the language in phrase any this first thereafter,” clause is the at “or time 492 Mich 208 Opinion op the Court 600.3236, which is central clause of MCL

The last however, case, plain, in this makes legal question the execution of the any preexisting interests be a foreclosure subject mortgage prejudiced will not of this clause pertinent language Specifically, sale. subsisting having any valid person that “no provides ... created before mortgaged upon premises lien effect, prejudiced took shall be mortgage the lien of such sale, rights his or interests be by any such nor shall the statute does any way thereby.” Although affected lien,” subsisting phrase the next not define “valid . .. term to mean a lien “created before qualifies that .”37 then provision such took effect. . . receiver, which, according a court to subordinate a senior allows junior Specifically, that because to a lien. the receiver asserts liability by Sterrett “has incurred a virtue of the and that affected his immediate title and therefore that’s the same title interpretation the bank has inherited.” That cannot be reconciled with clearly plain phrase text of 600.3236. The “or at time thereafter” MCL *14 Thus, phrase mortgagor’s positive property. in the the “or refers to the title any interpreted subsequently to mean that a at time thereafter” cannot be mortgagee’s imposed priority that lien takes over the interest because would accurate, nullify Indeed, interpretation if were MCL 600.3236. the receiver’s 600.3236, principle phrase that then the last of MCL which establishes the only imposed mortgage before execution of the at issue are not liens Further, foreclosure, contradictory. prejudiced by would be interpretation poses practical dilemma to the extent that Sterrett’s subject given Ken that he interest could never have been to imposition. years died before its 2V2 necessarily According plain language, to its MCL 600.3236 limits mortgage subsisting took “valid Ken” to one that was created before the Webster’s Third existence!.]” effect “subsist” means “to have because (1965). Dictionary, Unabridged New Edition a lien International To allow mortgage prejudice the that did not exist at the time the was executed to judicial party purchaser’s subrogation, would result in wherein the title statutory displaced by party priority favored with the is priority, Legislature prescribed the court. When the has the order of our Co, Roofing Cf. Stokes v Millen vary equity. it resort to courts (2002) 660, 673; (holding that an unlicensed any equitable such relief builder could not “have relief because would In re Court or “prejudiced” “shall” not be that such liens mandates The clear by the foreclosure sale. way “in affected” any is that those lienholders whose language of this import have execution will mortgage’s preexisted interests as those rights following foreclosure the exact same was executed. mortgage held at the time previously at the time of the priority that the order of It follows after a fore- execution must be maintained mortgage’s closure sale.38 whole, then, requires MCL 600.3236

When read as a created after the mort- any that interests extin- was executed will be subject to foreclosure gage after redemption period expiration guished upon sale; however, any preexisting interests a sheriffs such by “any not be affected mortgage’s execution will sale,” under a sheriffs deed will take grantee and the to those interests. subject preexisting the property 600.3236, by plain that MCL Accordingly, we hold expi- that after a sheriffs sale and language, requires any preexisting lien redemption period, ration of the the foreclosure subject that was the as at the time priority in the same order of sale remains mortgage’s execution. by advertise- Dart foreclosed on the Because makes ment, application 600.3236 and its applies, MCL statutory equity ban on an unlicensed be used to defeat allow construction”). seeking compensation is for residential This contractor here, provided particularly given a means to ensure so that this Court has paid by party seeking to establish a that a receiver’s are 2.622(D). receivership. See MCR and, thus, recording-priority jurisdiction Michigan a recorded is a rule, superior subsequently This lien recorded. lien is held time, right,” subject generally several first in referred to as “first grant their statutory exceptions certain first no matter hens *15 324.20138(2) (environmental costs), remediation time of creation. See MCL hens). 570.1119(3) (construction (real taxes), 211.40 estate and MCL MCL receivership expenses. However, statutory exception for there is no 226 492 MICH208 op the Court clear that Dart’s mortgage first-recorded pri- has first ority, given that no other liens existed when the mort- gage By was executed. operation 600.3236, of MCL liens created after the execution of Dart’s 2003, which includes the receiver’s lien created by order of the circuit in 2009, court could prejudice not Dart’s priority interest.39 The receiver argues, however, that the common-law rule and grants controls his lien first 39 statutory priority actually This Michigan rule is in accord with priority common-law rules involving established in related areas of law judicially receiverships. Gray Housing Trust, created Cf. v Lincoln (1924), Mich appointed 201 NW 489 in which a receiver was manage failing trust, the affairs of the which held as an asset plaintiffs mortgage. agreement When the trust breached a related with plaintiff, plaintiff against filed suit the trust to cancel the mortgage, appointed who plaintiff had been sifter the suit, initiated compensation. intervened to recover his The Court ruled in “ plaintiff, reasoning favor of the ‘the relative rank of claims and the ” standing hy of liens remain receivership.’ unaffected at Id. quoting Ruling Law, 118, p § Case 108. The Court further stated: We think it jurisdiction must be taken as the settled law in this that the receiver does purchaser not take title as a bona but fide subject equities takes the existing assets between the

parties. greater His title and can be no than the one for whose assets he is [Gray, receiver and in whose shoes he stands. 446.] Mich at Gray The rule articulated in has been relied on in other cases. See Uhl v Co, (1936) 712, 715; (holding 275 Mich validly NW 775 that a Wexford appointed property subject receiver takes the assets of the to those interests parties that existed appointment); between the at the time of his or her Co, (1933) 531, 535; Franklin Co v Buhl Land 264 Mich 250 NW 299 (holding plaintiffs appointed because the receiver was after the suit, judgment commencement of the against defendant’s setoff ofits plaintiff preference did not lead to a over other creditors because a receiver subject equities takes the existing assets parties between the at the time appointment); Jackson, of his or her 171, 176; and Stram v (1929) (holding purchaser NW 888 mortgaged property that the stands in mortgagor urge shoes of the and can no defense to the open mortgagor); Rickman, 224, 248, 250; see also Rickman v (1914) (holding plaintiff 146 NW 609 brings that a filing who suit before acquired of a hill of creditors, dissolution of a firm over other *16 In re the Court mortgage. disagree We preexisting over Dart’s priority because, the general while argument the receiver’s with has receivership priority to pertaining rule common-law jurisprudence, our certainly recognized throughout been relies demonstrates that which the receiver the caselaw on foreclosure-by- in the applied rule has not been Indeed, of no Michi- context. we are aware advertisement adopted rule as imposed case that the common-law gan of a sheriffs England purchaser so as to divest right priority pursuant statutory deed of his or her despite To the common-law rule apply MCL 600.3236. plain statutory language, providing imperative priority of a recorded with prior holder property, all created interests subsequently over hen that is cre- would shift impermissibly at subsequent mortgage subject ated to the time which the first-priority position. to foreclosure took effect rule irrec- application Because common-law would 600.3236, conflict of MCL we oncilably application with decline to extend the common-law rule to circumstances here, specifi- like those in which MCL 600.3236 presented the order of cally preexisting compet- controls liens, liens, ing including receivership after a foreclosure by advertisement.40

C. CONSENT Fisk,42 receiver, like the Relying Bailey41 on Court of nevertheless insists that he is entitled Appeals, including only rights who takes of the firm and is affected firm). claims, liens, equities prevail against the all which would Co, See Pulver v Dundee Cement Mich 75 n (1994) (holding that if there “if there is a conflict between the common statutory yield”). provision, law and a the common law must 41 Bailey, 262 Mich 215.

42 Fisk, 333 Mich 513. 492 MICH208 Opinion of the Court prior fees, satisfaction of his costs and even without explicit consent,

Dart’s on the basis that Dart acqui However, esced in receivership. the receiver’s asser tion is wholly unsupported by our jurisprudence. Bailey, this Court held that a mortgagee when consents to the appointment of a receiver as well as to the reordering of the priorities, the mortgagee may be charged payment with of the receiver’s costs and fees. Likewise, Fisk, the Court held that party when a *17 agreed by stipulation to appointment of certain receivers, that party precluded was from challenging of payment Thus, a receiver’s compensation. both and Bailey Fisk are distinguishable from the of facts case, given this that it undisputed is that Dart did not explicitly consent to either the appointment of a re ceiver or to reordering of the priorities.43 Certainly, party can statutory rights.44 waive its legal No author ity, however, justifies the extension of the rule articu in lated and Bailey Fisk to circumstances like the present, in which the mortgagee failed object to, or 43 Cavanagh Though disagree Justice does not with our conclusion that Bailey and jurisprudence Fisk are more akin to our waiver and do not permits mortgagee’s create a common-law rule that to be mortgagee’s explicit subordinated without consent to the receiver ship, curiously holdings he extends the in those cases to conclude that acquiescence However, is sufficient to effect a waiver. the resolution Bailey appears prompted by reached in and Fisk to have been the Court’s preventing mortgagee actually interest in agreeing from that only subsequently deny incur responsibility payment receiver costs Again, opinion, of those costs. as we note later in this all the confusion about who entirely should bear the cost of the receiver’s is by 2.622(D), avoided use of using MCR and we advise courts to consider this court rule in the future when the is receivers contemplated. 44 by Court, “As defined this ‘waiver’ connotes an intentional abandon right.” ment of Hosp, 57, a known v Roberts Mecosta Co Gen 466 Mich n 4; (2002), citing Carines, People 7; 642 NW2d 663 v 460 Mich 762 n (1999). Conversely, 597 NW2d 130 “a ‘forfeiture’ is the failure to assert a timely Roberts, 69, citing in a fashion.” 466 Mich at Carines. re the Court and in, appointment, the receiver’s merely acquiesced by holding contrary.45 erred Appeals the Court of generally recognize acquies jurisprudence mere does not Our waiver right. Quality Concepts Co a known See Prod & cence as a means waive (2003) Precision, 362, 365; (holding Inc, Nagel 666 NW2d v waiver”). “[mjere knowing generally cannot constitute Even that silence Cavanagh’s Bailey interpretation and not creative Fisk does Justice Cavanagh interprets Bailey supporting support proposition. as this Justice by way acquiescence.” that “waiver also occur Post at his assertion However, mortgagees promptly “[t]he dealt with the concern, by going keeping loss to themselves the hotel a in an effort to save attempt property” was used in an to effect sale of any possible advantage mortgagees that the “availed themselves of pronouncement acquiescence receivership” is was not Court’s waiver, corollary recog simply but of the Court’s sufficient to constitute Bailey, [of costs] filed consent.” nition that the “bill added). Cavanagh’s (emphasis Bailey Justice reliance on for his Mich at 219 Cavanagh’s acquiescence argument is unsustainable. Justice similar inter explain pretation is likewise unsustainable for reasons we later of Fisk opinion. this Cavanagh Moreover, support additional caselaw cited Justice recognized waiver based on of his contention that Court has acquiescence distinguishable present is from the matter. See Bloomfield Ass’n, City 206, 219, Improvement Birmingham, Estates Inc v (2007) (holding party precluded that a enforcing despite party’s prior a deed restriction failure to contest a long prior violation as as the violation was of a “less serious character” *18 subsequent contrary increasing than the one when a rule would “create restrictions”); Boschma, Sampeer chaos in the enforcement of deed v (1963) 261, 263, 266; (holding Mich NW2d 607 that defendants procedural compliance requiring had waived strict with a rule the court parties pretrial to file and serve on both statement when defense knowledge procedural irregularity counsel had of the and to which no objection time); Presbyterian was made at the and Smith v First United (1952) Church, 11; (holding by “vigi- 333 Mich lant[ly]” maintaining single-residential character of subdivision general plan, purchaser in accordance with the subdivision “acquiesced general plan any right or her in the . .. and waived she it”). concerns, grantees policy have to act outside of Those same would circumstances, party factual and affirmative conduct deemed to clearly present have waived a known are not at issue in the matter. cases, therefore, relinquish- These fail to demonstrate Dart’s intentional statutory right priority. ment of its of first 492 Mich 208 Court Nor is there legal authority supporting the Court Appeals’ conclusion that a party merely benefiting from a receivership may be liable for receiver’s costs and fees. Neither nor Bailey supports Fisk that conclu- Fisk, sion. In both Bailey and it the fact was that the parties had expressly consented to the receivership that justified the reordering priorities Court’s of the imposition fees, of the receiver’s respectively. Further, the Court of Appeals’ reliance on Attica was misplaced because Attica erroneously characterized Fisk un- as equivocally holding “that the party who benefited from the receivership is responsible the receivership expenses Rather, . . . .”46 Fisk held that the general rule is that a receiver’s fees should be taken from the receivership. case, however, this which the property is insufficient satisfy the mort- gagee’s superior lien and fees, the receiver’s gen- eral rule cannot Indeed, be applied. the mere receipt of a benefit because of the receiver’s actions does not justify disregarding MCL Rather, 600.3236. when MCL 600.3236 applicable, is gener- will ally be entitled priority; to first only when the mortgagee has unequivocally waived this statutory right of first priority will the receiver be entitled to prior satisfaction of his or her expenses consistently with the rule. reasons, common-law For these it was improper for the Appeals Court of to rely on Bailey, Fisk, and Attica as its requiring bases for Dart to pay the receiver’s costs and fees.47 46Attica, App at 592.

47 The receiver also relies on this Court’s decision in In re Petition of Chaffee, (1933), proposition 247 NW 186 for the proceed because Dart independently did not move for leave to precluded interfering it receivership. Chaffee, with the however, inapplicable validity because that case involved the of a sale, competing priority foreclosure not the of a receiver’s lien and a *19 In re the Court

IV APPLICATION of this case of the statute to the facts Application Dart, of a first-recorded mandates that as the holder mortgage be entitled to satisfaction of its mortgage, from the of the foreclosure sale on proceeds interest mortgage basis. Dart’s first-recorded took first-priority 8, on its August validly effect on 2003. Dart foreclosed the mortgage, was not redeemed within property redemption period, legal extended and Dart became real under the titleholder of the equitable 26, deed on lien August receivership sheriffs 5, 2009, by created subsequently on November order of the circuit court. Because a of a purchaser only sheriffs deed takes the with those liens effect, mortgage that existed at the time the took there was no lien when Dart’s took effect Dart’s first-recorded has statutory under MCL 600.3236 over all priority Moreover, Dart did not subsequent other liens. because explicitly statutory right priority, waive its the rule in Bailey inapplicable articulated and Fisk is and the precluded recovering receiver is expenses from Dart.

Further, the receiver’s lien in this although case interest, prejudice could not Dart’s we acknowl- Further, preexisting mortgage. attempts extent receiver validity proceedings, attack the of the foreclosure note that we Chaffee case, plainly distinguishable. In that we affirmed a circuit court’s decision mortgagee proceeded to void a foreclosure sale when the with foreclosure case, proceedings permission. without court’s indicated before the foreclosure sale that he did not intend to interfere Moreover, move with Dart’s foreclosure. when receiver did to void sale, nearly year place, after the sale had the circuit foreclosure taken merely redemption period. court extended the The receiver has not and, therefore, appealed validity the foreclosure decision proceeding is not before this Court. 492 Mich 208 Opinion of the Court *20 edge guidance the need for regard priority with of payment receivers’ liens. Circuit courts appointing 2.622(D), receivers should be of MCR cognizant which permits court, receiver,” a circuit application “on of the receiver, to set the compensation of the and to require the party requesting the to bear the costs associated regardless with it. But whether circuit court chooses to exercise its discretion under the court rule, court, the circuit at the appoints time it should provision nevertheless make for the payment of receivership expenses and should be aware of the order of priority any competing interests other rel- evant collateral issues that could affect compensation. particularly This is in the important context of by advertisement, when, foreclosure inas present case, a receiver’s lien be extinguished by operation of MCL only 600.3236. Not did the circuit court in the instant case fail to consider the effect of lien, MCL 600.3236 on the receiver’s it also failed to consider By court rule. application of MCR 2.622(D), might nonetheless have received compensation for the expenses incurred in his admin- istration of the receivership despite the order priori- ties, potentially avoiding a situation like that here. That is, had the circuit court exercised its discretion under rule, the court Duffy-Price, Price and parties as the requesting receivership, might have been liable for of the payment receivership expenses out of their own funds and the receiver might have been deprived any compensation.48 48 If, example, equity for property there had been sufficient in the satisfy preexisting mortgage both Dart’s interest and the receiver’s costs and

fees, proper proceeds following order of distribution of the the sale of the required prior DeWitt would have first satisfaction of Dart’s by payment recorded followed of the receiver’s costs fees. Thus, seeking payment, when a receiver looks first to the itself. re In Dissenting Opinion by Cavanagh, J.

v CONCLUSION operates preserve Because MCL 600.3236 priority following expiration applicable order of it redemption period, necessarily follows that the order preexisting liens subject of the foreclosure will remain did as it at the time of the execution. mortgage’s Because this statu- tory provision cannot be reconciled with common- law rule and because the rule common-law has never applied been to a foreclosure advertisement under 600.3236, MCL we decline to extend the common-law and, rule in this case the statute consequently, controls. We therefore judgment reverse the of the Court of *21 on Appeals imposing Dart the costs the receivership and remand this case to the circuit court for entry of an order in Dart’s favor with opinion. consistent

YOUNG,C.J., and ZAHRA,JJ., Markman and concurred Mary Kelly, with Beth J.

CAVANAGH,J. I (dissenting). respectfully dissent from majority’s conclusion that a mortgagee only waives its rights superior priority under MCL if 600.3236 the mortgagee expressly consents to a or reordering Rather, of priorities. I would hold that a mortgagee may superior also waive its if priority rights the mortgagee to and acquiesces benefits from the receivership.

In support of its conclusion that a receiver may only superior obtain priority relation to a mortgagee Fisk, because, example, 333 Mich at 516. If there are insufficient funds for superior worth, properly creditor with a lien is owed more than what the 2.622(D) may petition pursuant then the receiver the court to MCR to order party sought compensate who of the receiver to his or her costs and fees. 492 MICH 208 Dissenting Opinion Cavanagh, J. has waived this mortgagee unequivocally

“when the 600.3236],” MCL statutory right priority [under of first 215; Bailey, v 262 Mich majority Bailey cites Fisk, (1933), and Fisk v NW 160 (1952). However, view, in my Ante at 230. NW2d 356 that a waiver also occur Bailey provide and Fisk way acquiescence.1 hotel, a receiver for a Bailey, appointed was which All subject mortgage. parties sought to a involved operate during

have the receiver the hotel the summer mortgagees but the receiver refused unless the borrowing money obtaining consented to his a first priority mortgagees. mortgagees lien with over the agreed. Subsequently, collapsed, the real estate market mortgagees but the did not seek to foreclose and instead cooperated with the receiver in his efforts to sell the received, acceptable No offers were however. property. In determining whether the receiver held costs, over the for his fo- mortgagees Bailey initially cused on the fact that the consented mortgagees superior priority: mortgagees kept matter, except

If the had out of this perhaps account, respect of contest of the receiver’s by acquiescence variety legal Waiver is well known in a situations. ’n, See, e.g., Improvement City Birming Estates Ass v Inc Bloomfield (2007) ham, 206, 214; (stating that an unam biguous deed restriction is enforced as written “unless the restriction ... *22 added); by acquiescence") (emphasis Sampeer has been waived v (1963) (“If Boschma, 261, 265; 119 NW2d 607 the action the irregular, irregularity by making trial court the was waived no was rendered.”) objection added; (emphasis quota until after the verdict was omitted); Presbyterian tion marks and and Smith v First United citation (1952) Church, (holding that when the purchaser property vigilant maintaining of real from a subdivider was in property general plan, purchaser “acqui in the the accordance with the general any right grantees plan. esced in the . . and waived she or her it”) added). (emphasis would have to act outside of re Dissenting Cavanagh, J. might they there force in their that are liable be contention part expenses no of the administration costs and of the But, stated, receivership. as bill the consent. filed added; [Bailey, (emphasis 262 Mich at 219 citation omit- ted).]

However, Court also that if the this stated even mort- gagees given had not to prior, specific consent receiver’s their conduct priority, would nevertheless have them from precluded seeking to obtain over the receiver because dealt mortgagees “[t]he with the receiver and in an effort promptly to save loss to by keeping concern, themselves the hotel a going attempt was used an to effect sale of the property.” Accordingly, Id. because mortgagees “availed advantage themselves of possible they will receivership, not be heard to that say property in the hands the receiver chargeable is not with the expense costs, receiver’s and administration may even though practically it result in a corresponding added). loss to them.” Id. at (emphasis 219-220 This was so “[administration because incurred expenses are on the theory they benefit the parties ultimately entitled to at property.” Id. was also Bailey careful to limit scope holding, explaining only court allow a expenses displace prior liens when the are required preserve and allow property to become saleable. property Id. at 221.

Also, in Fisk Court considered a situation in which the had parties agreed receivers over the at issue corporation parties while the settled a dispute regarding corporation. owned who that, This Court held when the primary purpose preserve is to protect controversy, logically involved “it that he follows who ultimately establishes his *23 208 492 MICH

236 Dissenting by Opinion Cavanagh, J. the property held is one who benefits from

thus the Fisk, 333 Mich and having protected preserved.” been Mich 215. noted that 516, citing Fisk also Bailey, at to the of the appointment had parties agreed both and, so, in effect waived doing appellant “by receivers regarding make complaint might he otherwise or and its effect legality of propriety to question receivership of who was bear the upon omitted). (citation Fisk, Mich at 516 expenses.” view, my Bailey although and Fisk indicate that by one which a by mortgagee is method consent by may superior priority, acquiescence receiver obtain grant is to a receiver’s ex- mortgagee also sufficient preexisting mortgage. Bailey over a and penses by that supported reasoning Fisk this conclusion protect preserve is intended to by mortgagee held the receiver and because a the receivership property or an eventual owner of it is expenditures, proper benefits the receiver’s to party those on the that benefits. See impose 219-220 that because the Bailey, (stating at mortgagees any possible “availed themselves of advan- they of the will not be heard to tage receivership, say hands of receiver is that in the chargeable expense with the receiver’s and administra- costs, even it though practically tion result them”). view, Thus, my corresponding loss majority that mort- incorrectly acquiescence states knowledge with is insufficient gagee at superior priority. See ante provide an (claiming interpretation require this would Fisk”), Bailey “extension the rule articulated in at (claiming interpretation and ante this Rather, “wholly unsupported by jurisprudence”). our this conclusion. Bailey specifically supports In re Dissenting Cavanagh, J. case, that, I Applying Bailey Fisk believe minimum, acquiesced at a Dart Bank to the receiver objected Dart ship. Specifically, never actions, of the receiver’s efforts. despite knowledge *24 long recognized authority This Court has the inherent of a to a equity appoint court receiver under appro circumstances, McDonald, priate see 351 Mich at 575- 576, and Dart not argue receivership does that the in Moreover, this was improper. case the Court of Appeals has held that entities that are not to a receiver parties order but ship by are nevertheless affected the receiv order ership need be with served notice under MCR 2.105(D), particularly when entity the affected receives actual notice of the order. In re Contempt Cornbelt Corp, 114, 120; 416 App NW2d 696 Beef (1987), citing Davis, v 137 291, 293; Davis Mich App (1984), NW2d 6 Wayne and Tuller v Circuit Judge, (1928). 239, 243-245; Mich 219 NW 939 Accordingly, Dart was not entitled to formal notice of the receiver ship.

Furthermore, although Dart was not a party to 10, 2008, order entered April on and Dart initiated foreclosure 15, advertisement on April 2008—before it was aware of the receivership —Dart admitted that it had received actual notice of the receivership only later, three days April 18, on “ Moreover, the majority’s notation that ‘[m]ere know- ” ing generally silence waiver,’ cannot constitute ante at 45, 229 n quoting & Quality Concepts Prods Co v Nagel Inc, 362, (2003), Precision is irrelevant because merely Dart did not stand mute when Rather, it learned of the receivership. in a letter acknowledging receivership, attorney Dart’s stated that it “would willing receiver] be to with . [the work .. in terms of arranging a sale of the that property so Also, this can be paid.” Dart’s subsequent Mich Dissenting Cavanagh, J. year during between interaction with the receiver and the acknowledgement sher- Dart’s to work with willingness iffs sale substantiates 2009, during October Additionally, the receiver. court, attorney Dart’s admitted that in the trial hearing fact was receiver Dart that there “acquiesced court, . . .” and Dart out there . The trial and, in condition agreed was terrible that they it were repairing high, although Furthermore, in necessary case. were documenting his related provided reports expenditures hopes in it to repairing returning condition, acted to formally saleable and Dart never any specific by the receiver related challenge expenditure Thus, in repair. my view, to the Dart’s conduct property’s had of and knowledge was sufficient establish Dart view, acquiesced receivership. Accordingly, my conduct” clearly engaged Dart “affirmative right,” sufficient to show that Dart “waived a known ante *25 45, just parties at 229 n as did the in Estates Bloomfield Ass’n, City v Mich Improvement Birmingham, Inc 479 (2007); 206, 214; Boschma, NW2d v 369 Sampeer 737 670 265; (1963); Smith 261, Mich 119 607 v First NW2d Church, 1, 11; 333 Mich 52 Presbyterian United NW2d (1952). Additionally, mortgagee, as Dart benefited from the preserve, protect the repair, receiver’s efforts to the property repairs property’s because the increased Therefore, efforts Dart’s improved value. the receiver’s the full amount of its recovering chances of The fact property. when the receiver sold the that not sell the at a property receiver was able to suitable Bailey this because price analysis does undercut though held take “even that the receiver’s costs [the in a practically corresponding it result loss Bailey, Accordingly, Mich at 219-220. mortgagee].” In re Dissenting Opinion by Cavanagh, J. as stated in Dart not “be Bailey, say should heard to property in the hands the receiver is not chargeable with the receiver’s when the expense” mort- gagee [itself] “availed possible advantage of the . . . Id. receivership at 219.2 Finally, as the ultimate owner of the property through process, the foreclosure Dart also benefited from the receiver’s efforts to repair, preserve, and protect aspect property. This the case falls under Fisk’s conclusion that when primary a purpose of preserve is to and protect property involved in a “it controversy, logically that he follows ultimately who establishes his right property held thus is the one who benefits from the property 2 Bailey’s importance discussion of the of who receives the benefit of receiver’s is efforts consistent with this Court’s discussion of issue in opinions. Holmes, 16, example, 18; other For in Holmes v 265 Mich (1933), imposing responsibility NW 360 Court stated for the appropriate receiver’s on the is when the “performed valuable services” that “were beneficial” and the parties Likewise, Fisk, appointment. had consented to in this Court stated that ordinarily right compensation “[r]eceivers have a for their expenses, right strong equity, analogous services and such is obligation upon contract, implied

to an founded an and is not dependent upon arbitrary court, the mere if discretion of regular of the receiver was and his conduct has been exception. compensation free Such of the receiver to charge [Fisk, receivership.” on the or in fund (citation omitted).] at 518 See, also, (1983) Cohen, App v Cohen (upholding a receiver’s fees because the fees were not “excessive” and light were required “reasonable the actions the receiver was to take protect property”), 2d, Receivers, 220, p order to § and Am Jur *26 (“The general compensation rule is of a where the receivership proceedings sought by mortgagee, are not subordinate mortgage, mortgagee lien at least where no receives benefit added). therefrom.”) (emphasis MICH208 Dissenting by Cavanagh, J. Fisk, and preserved.” having protected been Dart, as the eventual Accordingly, because at from the receiver’s benefited property, owner the property and preserve, protect to repair, efforts I habitable, property, sellable Dart received a of that benefit. Dart bear cost require would of the Court judgment Thus, I affirm would view, statutory because, in Dart waived its my Appeals because under MCL 600.3236 to superior receivership, acquiesced knowledge it had from the efforts to benefited receivership, preserve, protect property. repair, Kelly Marilyn JJ., Hathaway, concurred with J. Cavanagh,