Senters v. Ottawa Savings Bank, 503 N.W.2d 639

Senters v. Ottawa Savings Bank

503 N.W.2d 639

Mich.

1993

Check Treatment

Riley, J.

In the present case, plaintiff seeks the discharge of a mortgage as well as damages for slander of title. Defendant was the holder of the real estate mortgage that defendant foreclosed by advertisement. Defendant asserts a claim against the property in the amount it paid to redeem the property from a construction lien foreclosure sale. We find that plaintiff has complied with the clear language of the redemption statute and that defendant is not entitled to a lien on the property in the amount it paid to redeem the property from a prior foreclosure sale. The decision of the Court of Appeals is reversed.

This case was presented to the trial court on a stipulation of facts. In May 1984, a mortgage on the premises was executed between Paul and Yvonne Farmwald and Lambrecht & Company. This mortgage was subsequently assigned to defendant. In February 1988, Cross Pointe, Inc., the successors in interest to the Farmwald property, conveyed a less-than-fee interest to plaintiff pursuant to a land contract. Plaintiff paid $22,500 for the property, with $52,000 owing on the land contract. 1

Judgments of foreclosure were entered pursuant *48 to several construction lien lawsuits begun in 1984 and 1985. These construction liens were incurred by the Farmwalds. On June 8, 1989, the premises were sold at a construction lien foreclosure sale for $13,500 to Rand Development. The redemption period from the construction lien foreclosure sale was four months.

On August 24, 1989, the premises were sold at a foreclosure sale by advertisement of the mortgage held by defendant. Defendant was the highest bidder, paying $52,286.59. The redemption period from the mortgage foreclosure sale was six months.

On October 6, 1989, two days before the expiration of the redemption period from the construction lien foreclosure sale, defendant redeemed the premises, paying $14,037.05. 2 On December 5, 1989, defendant filed an affidavit of interest in real property indicating that redemption from the mortgage foreclosure sale would require payment of the bid price plus interest, as well as the amount paid to redeem the property from the construction lien foreclosure sale.

On February 23, 1990, a day before the expiration of the redemption period, plaintiff delivered to defendant two certified checks totaling $54,896.45. This amount represented the price bid by defendant at the foreclosure sale plus interest. Plaintiff maintained, and presently argues, that pursuant to MCL 600.3240; MSA 27A.3240, 3 in order to *49 redeem the property from the mortgage foreclosure sale, she is required to pay the sum bid at the foreclosure sale plus interest and any taxes and insurance premiums paid by the sale purchaser. Plaintiff argues that she is not obligated to pay the amount expended by defendant to redeem the premises from the construction lien foreclosure sale.

The trial court granted summary disposition in favor of defendant. Finding that MCL 600.3240; MSA 27A.3240 does not address whether the payment of prior existing liens merges into a mortgagee’s claim, the court applied the "underlying doctrine of redemption which has existed in the law for many centuries.” It concluded that the doctrine of redemption required payment by plaintiff. In the alternative, the court held that defendant was entitled to an equitable lien to recover the amount paid to preserve the property.

Although rejecting the argument that defendant is entitled to recover on the basis of redemption from a mortgage sale by advertisement, the Court of Appeals held that defendant was entitled to an equitable lien. 4 By extinguishing the construction *50 liens, defendant preserved plaintiff’s interest in the property and increased the value of the premises. Hence, the Court concluded that it would be inequitable not to require plaintiff to compensate defendant for the amount expended to redeem the property from the construction lien foreclosure sale. We granted leave to appeal. 5

We agree with the decision of the Court of Appeals that plaintiff has complied with the statutory requirements and therefore has properly redeemed the property from defendant’s foreclosure sale. Foreclosure sales by advertisement are defined and regulated by statute. 6 Once the mortgagee elects to foreclose a mortgage by this method, the statute governs the prerequisites of the sale, notice of foreclosure and publication, mechanisms of the sale, and redemption. 7 Upon a foreclosure sale, the mortgage debt is considered paid and the mortgage lien discharged. Wood v Button, 205 Mich 692, 701; 172 NW 422 (1919). If the mortgagee purchases the property at the sale, it stands in the position of an ordinary purchaser and obtains an ownership interest in the land, subject to the mortgagor’s opportunity of redemption. Doyle v Howard, 16 Mich 261, 265 (1867). In order to redeem the property from the mortgage foreclosure sale by advertisement under the plain meaning of MCL 600.3240; MSA 27A.3240, plaintiff must pay the bid price plus interest, and any amount for taxes and insurance that the purchaser has properly filed with the register of deeds.

Several early decisions of this Court strictly *51 construed the redemption statute, 8 precluding deviation from its terms despite equitable considerations. In Cameron v Adams, 31 Mich 426, 428 (1875), the Court declined to extend the redemption period despite the fact that defendant had paid part of the redemption amount and a serious illness had prevented him from conducting his personal business during the redemption period.

Where a valid legislative act has determined the conditions on which rights shall vest or be forfeited, and there has been no fraud in conducting the legal measures, no court can interpose conditions or qualifications in violation of the statute. . . . This principle has not been open to controversy, and is familiar and elementary.[ 9 ]

This Court has also refused to allow the addition of attorney fees to the amount necessary to redeem from a foreclosure sale, although those attorney fees were paid pursuant to the mortgage agreement as part of the foreclosure sale bid.

As the law now stands it cannot be regarded as authorizing as a condition precedent to redemption any other exaction in the way of fees or compensation than such as the statute specifies, and stipulations in advance for gross allowances are not consistent with public policy. [Vosburgh v Lay, 45 Mich 455, 457; 8 NW 91 (1881).]

The mortgagee-purchaser at a foreclosure sale by advertisement in Walton v Hollywood, 47 Mich 385, 388; 11 NW 209 (1882), was not allowed to revive the mortgage lien on the property as secu *52 rity for payment of sums expended by the mortgagee for taxes and insurance during the redemption period. Once the mortgagor paid the amount required by statute, redemption was considered accomplished despite these intervening payments by the foreclosure sale purchaser to preserve the property. 10 The Court reasoned that after the sale, the rights of the parties are fixed by statute rather than controlled by the mortgage. 11

In Wood, supra at 703, the plaintiff was denied a lien in trust upon the land in the amount paid for taxes after the foreclosure sale by advertisement.

[T]he case presented is not one to be determined upon some notion of general equities. The parties have a right to stand upon the law. . . . The right to redeem from a foreclosure at law is a legal right, is created by statute, and can neither be enlarged nor abridged by courts. A redemption is complete when one having the right to redeem pays in proper time, to a proper person,—

"the sum which was bid . . . with interest . . . .”

Once redemption is completed pursuant to statute, "[t]he power of sale contained in the mortgage is exhausted, the mortgage debt is paid, the mortgage lien discharged, the sheriff’s deed canceled, and the mortgagee and the bidder at the sale have no further interest in the property.” Id. 12

Upon foreclosure by advertisement in the present case, the rights of the parties were controlled *53 by statute. Before the redemption period expired, plaintiff tendered to defendant the amount required under MCL 600.3240; MSA 27A.3240 to redeem from a foreclosure sale by advertisement. The plaintiff therefore has legal title to the property free of defendant’s mortgage lien. We now turn to the issue whether an equitable lien may be imposed in favor of defendant so that defendant might recover the amount it paid to redeem the property from the construction lien foreclosure sale.

III

In the absence of a written contract, an equitable lien will be established only where, through the relations of the parties, there is a clear intent to use an identifiable piece of property as security for a debt. See Schrot v Garnett, 370 Mich 161; 121 NW2d 722 (1963). 13 In Kelly v Kelly, 54 Mich 30; 19 NW 580 (1884), the son of a landowner sought to impose an equitable lien on his father’s property in the amount paid by the son to satisfy certain debts on the land. The Court dismissed the complaint, finding insufficient evidence to support the son’s assertion that he paid the creditors pursuant to an agreement with his father. In the absence of a written contract, "from the relations of the parties, equity will declare a lien out of considerations of right and justice, based upon those maxims which lie at the foundation of equity jurisprudence.” Id. at 47. The Court in Cheff v Haan, 269 Mich 593, 598; 257 NW 894 (1934), denied the plaintiff’s right to establish and foreclose an equitable lien on defendant’s property, holding:

*54 Equity will create a lien only in those cases where the party entitled thereto has been prevented by fraud, accident or mistake from securing that to which he was equitably entitled.

Although several early decisions considered with equitable circumstances required a deviation from the literal requirements of the redemption statute, none is dispositive of the present case. In Grossman Bldg Co v Elliott, 382 Mich 596, 606; 171 NW2d 441 (1969), the Court refused to allow the plaintiff an extension to the three-month redemption period on the basis that no equitable considerations prevented the Court from literally following the plain intent and operation of the statute.

Absent some unusual circumstances or additional considerations not within the ambit of the statute, this Court must follow the clear and plain meaning of the statute.

We accept as a general rule that the right to redeem under present statutes is a legal right and can neither be enlarged nor abridged by the courts. [Id. at 603.]

Any deviation from the literal requirements of the statute "must be addressed to the conscience of the court.” Id.

In Wallace v McBride, 70 Mich 596; 38 NW 592 (1888), the holder of a second mortgage by fraud, Wallace, was required to assign the mortgage to the true mortgagee, Storrs. The Court also held that Wallace was entitled to establish a lien on the property in the amount paid to redeem the property from a prior mortgage. The Court reasoned that the money paid was for the benefit of Storrs. By redeeming the property from the foreclosure sale, Wallace saved the property for the use and benefit of Storrs, and "in equity it was the duty of *55 Storrs to refund it to [Wallace].” Id. at 601. While the analysis in Wallace is persuasive, no statute controlled the circumstances in which a mortgagee was required to assign his interest because it was acquired fraudulently. In the present case, MCL 600.3240; MSA 27A.3240 specifies the requirements for redemption, leaving no room for equitable considerations absent fraud, accident, or mistake.

In GS Sanborn Co v Alston, 153 Mich 456; 116 NW 1099 (1908), the Court held that the purchasers at a tax sale were entitled to be reimbursed for taxes paid between the sale and the reconveyance to the owners. The owners knew the land was subject to taxation and ignored their duty to pay. The tax sale purchaser paid, the amount due for taxes in order to protect his title. Because of a "technical defect in the notice,” the owners were entitled to a reconveyance. The Court concluded that the owners "ought in justice and equity to be compelled to pay those taxes which the purchaser has been compelled to pay, or otherwise lose his title or lien.” Id. at 464. Alston, however, is distinguishable from the present case because it did not involve redemption from a foreclosure sale by advertisement and neither party satisfied the statutory requirements. The original owners did not satisfy the requirements for reconveyance from the tax sale, and the tax sale purchasers did not satisfy the statutory notice requirements. When confronted with equities conflicting with clear statutory language, 14 the Alston Court stated, supra at 461: "Courts of equity, however, as well as law, must apply legislative enactments in accordance with the plain intent and language used by the *56 legislature.” Where, as in the present case, a statute is applicable to the circumstances and dictates the requirements for relief by one party, equity will not interfere.

Finally, in the present case, defendant chose to foreclose by advertisement, which is strictly regulated by the statute. Had defendant chosen to proceed pursuant to a foreclosure suit in equity, it might have raised its equitable defenses. In Masella v Bisson, 359 Mich 512, 525; 102 NW2d 468 (1960), this Court acknowledged that one who seeks the statutory remedy in preference to resort to the equitable proceeding is bound to comply with the statute. 15

In the present case, plaintiff and defendant were parties to a mortgage agreement that was extinguished by the foreclosure sale in August of 1989. At the time defendant redeemed from the construction lien foreclosure sale, there was no contract out of which an equitable lien could have been established. Defendant did not form an agreement with plaintiff regarding the effect of the redemption from the construction lien foreclosure sale on plaintiff’s right of redemption from defendant’s foreclosure sale. No fraud, accident, or mistake is alleged in this case. Had defendant redeemed from the construction lien foreclosure sale before foreclosing on the mortgage, it could have added to the mortgage debt the amount paid to redeem, thereby recovering that amount at the *57 mortgage foreclosure sale. Even after the foreclosure by advertisement was begun, it could have been adjourned pursuant to MCL 600.3220; MSA 27A.3220, to allow the redemption period from the construction lien foreclosure sale to pass before conducting the mortgage foreclosure sale. Defendant could then have added to the mortgage debt and the mortgage foreclosure sale bid any amount it expended to redeem the property from the construction lien foreclosure sale. 16

Although a general notion of injustice might appear to support defendant’s assertion that plaintiff is receiving a windfall at defendant’s expense, under the strict requirements of the statute, plaintiffs are not required to reimburse defendants for that amount. The choice by defendant regarding the timing and manner of the foreclosure sale exposed it to the risk that plaintiff would redeem from the mortgage foreclosure sale without being held responsible for payment of the redemption expenses. Because there is no fraud, accident, or mistake, the clear language of MCL 600.3240; MSA 27A.3240 must control and defendants are entitled only to the mortgage foreclosure sale bid *58 plus interest and any taxes and insurance properly paid during the redemption period.

The decision of the Court of Appeals is reversed.

Cavanagh, C.J., and Levin, Brickley, Boyle, Griffin, and Mallett, JJ., concurred with Riley, J.

Notes

Plaintiff acquired a fee interest in the property pursuant to a quit claim deed executed September 15, 1989. In consideration of $1 paid by plaintiff, plaintiff acquired a fee interest subject to the outstanding mortgage with the defendant.

This amount includes the bid price plus interest.

MCL 600.3240; MSA 27A.3240 provides in part:

(1) If the mortgagor . . . within the applicable time limit prescribed in this section, redeems the entire premises sold by paying to the purchaser . . . the sum which was bid for the entire premises sold, with interest from the time of the sale at the rate percent borne by the mortgage, . . . then the deed shall be void and of no effect. . . .

*49 (2) If the purchaser, following the sale, pays any sum or sums as taxes assessed against the property or premiums upon any insurance policy covering any buildings located on the property which under the terms of the mortgage it would have been the duty of the mortgagor to have paid had the mortgage not been foreclosed, and which premiums are necessary to keep the policy in force until the expiration of the period of redemption, and the purchaser . . . makes an affidavit of the payment showing the amount and items paid, together with the receipt evidencing the payment of the taxes or insurance premiums . . . the register of deeds shall indorse on the documents filed the time they are received. . . . After a filing under this subsection, redemption shall only be made upon payment of the sum above specified plus the amount shown by the affidavits and receipts to have been so paid, with interest on that amount, from the date of the payment to the date of redemption, at the rate specified in the mortgage.

196 Mich App 168; 492 NW2d 466 (1992).

442 Mich 851 (1993).

MCL 600.3201; MSA 27A.3201.

See MCL 600.3201 et seq.; MSA 27A.3201 et seq.

Prior statutes required a redemptioner to pay the price bid at the foreclosure sale plus interest without providing for payment of intervening taxes or insurance premiums. See 1929 CL 14435; 1915 CL 14959; 1877 PA 129; 1871 CL 6922; 1863 PA 47.

See also Carlisle v Dunlap, 203 Mich 602, 606; 169 NW 936 (1918); Heimerdinger v Heimerdinger, 299 Mich 149; 299 NW 844 (1941).

The redemption statute did not provide for payment of intervening taxes and insurance. See n 8.

See also Mortgage & Contract Co v First Mortgage Bond Co, 256 Mich 451; 240 NW 39 (1932).

See also New York Life Ins Co v Erb, 276 Mich 610, 614; 268 NW 754 (1936), in which this Court held that equity will not revive the mortgage lien, nor "impress and enforce a lien” for taxes paid after the foreclosure sale by advertisement, where the statute did not provide for reimbursement for payment of intervening taxes. See n 8.

See also Drettman v Marchand, 337 Mich 1; 59 NW2d 56 (1953) (an equitable lien was established to enforce an agreement that the defendant fraudulently attempted to avoid).

The tax sale purchasers claimed the original owners showed such laches as to require equity to overcome strict statutory notice requirements.

Compare Hopkins v Sanders, 172 Mich 227; 137 NW 709 (1912), in which equitable circumstances were considered by the Court in establishing an equitable lien for taxes paid by the mortgagee that were due before the execution of the mortgage. The mortgagee brought foreclosure proceedings rather than foreclosing the mortgage by advertisement.

In 1 Cameron, Michigan Real Property Law: Principles and Commentary, § 18.80, p 648, the author cautions lenders to order a title report before a foreclosure sale by advertisement.

Priorities between mortgagees and construction lien claimants are ordinarily determined in judicial proceedings for the foreclosure of the lien or the mortgage. This is one important reason why a lender should have his title work upon the mortgaged premises brought up to date not only at the time of the notice of the foreclosure sale, but also just before the sale. If construction liens appear, the merits of proceeding with a foreclosure by advertisement are highly questionable because of the priorities problem.

Likewise, nonmortgagee purchasers at a foreclosure by advertisement should undertake a title search before purchasing at the sale in order to protect themselves from purchasing encumbered property and incurring preservation costs for which they might not be reimbursed.