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This is the Appellant Brief submitted by Attorney Arthur Kirkland for Thelma and Anita Belle. The lower court, the 36th District Court of Michigan, entered a Possession Judgment in favor of the mortgagee, National City Bank. However, the Belles appealed that the Possession Judgment should be set aside because the person conducting the sheriff sale was not authorized to do so pursuant to applicable Michigan statutes.
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STATE OF MICHIGANIN THE CIRCUIT COURT OF THE COUNTY OF WAYNE
____________
NATIONAL CITY BANK,Plaintiff-Appellee,
vs. Hon. Robert L .Ziolkowski
Case No. 09-007640 AVTHELMA BELLE, and ANITA BELLE, 36th Dist. Ct. Case # 08-311916 LT
Defendants-Appellants.__________________________________/
APPELLANTS’ BRIEF On Appeal from District Court Order of February 26, 2010
ORAL ARGUMENTS SCHEDULED Thursday, June 10, 2010 at 2:00 p.m.
ARTHUR C. KIRKLAND, JR. GREGORY MACKAY (P62030)Attorney at Law (P27551) TROTT & TROTT, P.C.Attorney for Defendants/Appellants Attorney for Plaintiff/AppelleePost Office Box 35676 31440 Northwestern Hwy., Ste. 200Detroit, Michigan Farmington Hills, MI 48334(313) 909-5895 (248) 723-6476
April 27, 2010
Page 1 of 27
Table of Contents
Table of Authorities.........................................................................................................................3Jurisdictional Statement...................................................................................................................4Statement of Questions....................................................................................................................5Statement of Facts............................................................................................................................6Argument I.....................................................................................................................................12
Standard of Review....................................................................................................................12Analysis.....................................................................................................................................12
Argument II...................................................................................................................................22Standard of Review....................................................................................................................22Analysis.....................................................................................................................................22
Relief Requested............................................................................................................................24Proof of Service.............................................................................................................................25Exhibits..........................................................................................................................................26
Page 2 of 27
Table of Authorities
CasesCity of Lake Angelus v Oakland Co Road Comm’n, 194 Mich App 220, 224; 486 NW2d 64
(1992).........................................................................................................................................15Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993)......................................................15Federal National Mortgage Association v. Strother, case number 09-C2299-LT in the 35th
District Court of Michigan...................................................................................................18, 26In Re Antonio Attard, case number 08-57422 and Attard v. Wells Fargo Bank, adversarial
proceeding case number 08-5064 in the U.S. Bankruptcy Court for Eastern Michigan.....20, 27In re Jude, 228 Mich App 667, 670; 578 NW2d 704 (1998)........................................................12Miller v. Inglis, 223 Mich.App. 159, 567 N.W.2d 253...........................................................13, 23PHH Mortgage Corporation v. Cude, case number 09-02-2565 LT in the 23rd District Court of
Michigan........................................................................................................................18, 19, 27Reitmeyer v Schultz Equipment & Parts Co, Inc, 237 Mich App 332, 336; 602 NW2d 596 (1999)
...................................................................................................................................................22Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995).....................................15
Statutes11 U.S.C. §1322(c)(1)...................................................................................................................20MCL 51.70.....................................................................................................................6, 16, 18, 19MCL 51.72.....................................................................................................................................17MCL 51.73.................................................................................................................................6, 14MCL 600.2932...............................................................................................................................19MCL 600.3216...........................................................................................................................6, 15MCL 600.3232...........................................................................................................................6, 14MCL 8.3a; MSA 2.212(1).............................................................................................................15
RulesMCR 2.116(C)(10)........................................................................................................................19MCR 2.612(C).............................................................................................................12, 13, 22, 23MCR 2.625....................................................................................................................................24MCR 4.201......................................................................................................................................6MCR 4.201(N).................................................................................................................................4MCR 4.201(M)(1)(b).....................................................................................................................22MCR 7.101(A).................................................................................................................................4MCR 7.101(B)(1) ...........................................................................................................................4MCR 7.101(P)..................................................................................................................................7
Page 3 of 27
Jurisdictional Statement
The Circuit Court has jurisdiction over this Claim of Appeal pursuant to MCR 4.201(N)
and MCR 7.101(B)(1). This appeal is from the Judgment for Possession and the February 26,
2010 Opinion and Order entered in 36th District Court Case No. 311916 LT.
Page 4 of 27
Statement of Questions
I. Did the trial court err in ruling that the Appellants failed to present any new evidence
or reason that the court’s initial ruling that granted the Possession Judgment was
incorrect, when Appellants presented undisputed documentary evidence that the
sheriff deed was defective and void, because the person conducting the sheriff sale
and signing the sheriff deed was not properly appointed, or authorized to do so, in
accordance with Michigan law?
II. Would substantive due process, under the Michigan and U.S. Constitutions, dictate
that an escrow order take into consideration the prejudice to the Appellants due to
their indigency and their high likelihood of prevailing on the merits as weighed
against the relatively little or no prejudice to the Appellee?
Page 5 of 27
Statement of Facts
1. This appeal arises from a summary proceeding to recover possession of premises
under MCR 4.201 in 36th District Court filed on April 11, 2008 after a purported
sheriff sale and deed executed on August 29, 2007, for the property commonly known
as 19935 Vaughan in Detroit, Wayne County, Michigan. The sheriff sale and sheriff
deed were invalid because the sale was not conducted and the sheriff deed was not
executed by a person authorized to do so under MCL 600.3216, MCL 600.3232,
MCL 51.70, and MCL 51.73. (Please note Paragraphs 9 and 10 of this Statement of
Facts, infra.). The trial court granted a Judgment of Possession on March 23, 2009, at
which time the Defendants’ Motion to Dismiss was denied for reasons stated on the
record. (See Exhibit 1, the 36 District Court Register of Actions dated April 12,
2010. See Exhibit 2 for a copy of the Judgment of Possession and Exhibit 3 for the
Order Denying the Motion to Dismiss. )
2. A timely Claim of Appeal was filed on April 1, 2009. (See date entry on Register of
Actions in Exhibit 1.) Also filed with the Claim of Appeal was a $200 personal
bond. This bond was approved by the trial court in its Order of February 26, 2010.
(Although this bond is not on the Register of Actions, it became part of the record
below by means of numerous motions to endorse the bond, the first of such motions
being made on July 31, 2009, with corresponding Exhibit N attached to said motion
that displayed said bond as being date-stamped on April 1, 2009 by the 36th District
Clerk of Court. For convenience, a copy of this bond is annexed hereto as Exhibit 4.)
A $20 check in deposit for the February 10, 2009, March 10, 2009, and March 23,
Page 6 of 27
2009 transcripts was made on April 1, 2009. (Although not part of the Register of
Actions, the request and deposit were raised in the July 31, 2009 Motion, and
corresponding Exhibits C and D were attached to that motion. For convenience, a
copy of the Request for Transcript and a copy of the $20 unendorsed check are
annexed hereto as Exhibit 5.)
3. On April 14, 2009, the trial court ordered a cash bond of $2500. Also on April 14,
2009, the trial court ordered an escrow of $900 per month, prorated to $480 for April
2009. (See Exhibit 1.) Both the bond and escrow orders were mailed to the
Defendants on May 5, 2009. (Although not part of the Register of Actions, the fact of
the 21-day delay in mailing the April 14, 2009 Orders for Bond and Escrow, was
raised repeatedly in numerous motions, the first of which was in the July 31, 2009
Motion and corresponding Exhibit M. For convenience, a copy of the envelope,
postmarked May 5, 2009, that contained the April 14, 2009 Orders for Bond and
Escrow, is annexed hereto as Exhibit 6.).
4. On May 1, 2009, the Defendants tendered a check for $175 to the court reporter.
(Although not part of the Register of Actions, the issue regarding the transcripts was
raised repeatedly, including in the July 31, 2009 Motion, with a corresponding copy
of Appellants’ check attached as Exhibit E. For convenience, a copy of the
unendorsed May 1, 2009 check is annexed hereto as Exhibit 7.) On May 26, 2009,
the trial court dismissed the appeal for nonpayment of the bond and escrow, citing
MCR 7.101(P). Numerous motions were made to set aside this dismissal, including
the July 31, 2009 Motion which contained a copy of the May 26, 2009 Order at
Exhibit I. For convenience, the May 26, 2009 Order Dismissing Appeal is attached
Page 7 of 27
hereto as Exhibit 8. The district court’s order dismissing the appeal was postmarked
June 3, 2009. (Although not on the Register of Actions, this issue was presented in
the July 31, 2009 Motion with corresponding Exhibit J. A copy of the envelope
postmarked June 3, 2009 is annexed hereto with Exhibit 8.)
5. On June 10, 2009, the Defendants submitted $175 cash to the court reporter, in
substitution for the unendorsed $175 check. (Although not part of the Register of
Actions, this issue was raised repeatedly via motion, including in the July 31, 2009
Motion with corresponding Exhibit F. For convenience, a copy of the receipt for
$175 is annexed hereto as Exhibit 9.) Unbeknownst to the Appellants, on June 9,
2009, this court had dismissed the appeal for lack of the transcripts.
6. On June 11, 2009, the court reporter completed a Certificate of Ordering the
Transcript on Appeal. Although this certificate is not on the Register of Actions or in
the court file, a copy of the same is annexed hereto as Exhibit 9. On June 19, 2009,
the court reporter gave the transcripts to the Defendants/Appellants, as attested to in
numerous motions, including the July 31, 2009 Motion with corresponding Exhibit X
containing the coversheets and affidavits of three transcripts. For convenience, the
coversheet and court reporter’s affidavits are annexed hereto as Exhibit 11.
Although the Notice of Filing of Transcript and Affidavit of Mailing are not listed on
the Register of Actions or in the court file, a copy of this certificate is annexed hereto
as Exhibit 12.
7. The remaining parts of the Record are contained in Exhibit 1: On or about June 18,
2009, the Defendants/Appellants moved to disqualify the district court judge. Their
motion was denied on July 20, 2009. On July 29, 2009, Defendants initially moved
Page 8 of 27
for Chief Judge Atkins to review the order denying disqualification, pursuant to MCR
2.003(C)(3)(a), but filed on July 31, 2009 a motion for reconsideration of the court’s
order denying disqualification. As part of the July 31, 2009 motion for
reconsideration, the Defendants also moved to vacate dismissal or to reinstate their
appeal, moved for an ex parte emergency stay, moved for relief from the possession
judgment and relief from the denial of motion to dismiss, moved for the court reporter
to be ordered to file her notice of filing transcripts, moved for the bond to be waived
due to Defendants’ indigency, and moved to modify the escrow order. On August 17,
2009, the district court denied the motion for reconsideration of its order denying
disqualification. Judge E. Lynise Bryant-Weekes scheduled the remaining motions to
be heard on August 28, 2009.
8. On August 26, 2009, the Defendants/Appellants moved for the Chief Judge to review
the disqualification motion. On or around October 14, 2009, the Defendants
supplemented their motion to the Chief Judge, asking for superintending control and
providing documentary evidence of the invalid sheriff sale. The Chief Judge denied
the motions on November 17, 2009. On December 8, 2009, Defendants/Appellants
moved for the Chief Judge to reconsider her denial of the motion to disqualify due to
the November 25, 2009 change in the Michigan Court Rules regarding
disqualification of judges. While the motion for reconsideration was pending before
the chief judge, on December 23, 2009, the district court notified the parties that she
would be ruling on Defendants/Appellants’ July 31, 2009 motion on January 11, 2010
and that the Plaintiff/Appellee had until January 8, 2010 to file its response to the
motion.
Page 9 of 27
9. On January 4, 2010, the Defendants filed amended motions to disqualify the judge,
for relief from judgment of possession and denial of motion to dismiss, for sanctions
and costs, to vacate order dismissing appeal/reinstate appeal, for emergency motion
for ex parte stay, to order filing of appeal transcripts and court reporter’s notice of
filing, to endorse bond filed by defendants on appeal, to modify the escrow order on
appeal, and request oral argument on these motions. The January 4, 2010 amended
motion clearly stated as grounds for their motion for relief from the Possession
Judgment and Relief from the Motion to Dismiss that mistake or fraud occurred
because of defects in the sheriff deed. Attached to the January 4, 2010 motion were
Exhibits F and G. Exhibit F was a copy of the sheriff deed, prepared by John T.
Harrison of Trott and Trott, the law firm representing the Appellee, and signed and
notarized by “Deputy Sheriff” Sterling K. Harrison. For convenience, a copy of the
August 29, 2007 sheriff deed is annexed hereto as Exhibit 13. The January 4, 2010
Amended Motion also included the “Appointment of Special Deputy Sheriff” for
Sterling K. Harrison and his Oath of Special Deputy Sheriff, attached to that motion
as Exhibit G. For convenience, a copy of Sterling Harrison’s appointment and oath of
office are annexed hereto as Exhibit 14. The appointment of special deputy sheriff
states that it appoints “Sterling K. Harrison special deputy sheriff during the year
ending December 31, 2008”, [emphasis added.] As indicated in Exhibit 13, the
Sheriff sale was conducted and the Sheriff Deed was executed by Sterling K.
Harrison, on August 29, 2007, prior to the effective date of the purported
appointment. The appointment is signed by Harold Cureton, the undersheriff. The
Page 10 of 27
appointment, on the same page as the oath of special deputy, was notarized on June
18, 2006 and date-stamped as filed by the county clerk on June 21, 2006.
10. On January 8, 2010, the Chief Judge denied the motion for reconsideration of the
disqualification motion. (See Exhibit 1.) The Plaintiff/Appellee failed to respond to
the original motion filed on July 31, 2009 and the amended motion filed on January 4,
2010. On February 26, 2010, the trial court, purporting to resolve all pending
matters, reinstated the appeal, endorsed the April 1, 2009 original bond, and modified
the escrow to $500 per month. (A copy of the February 26, 2010 Order is annexed
hereto as Exhibit 15.) Regarding the Motion for Relief from the Possession
Judgment and Denial of Motion to Dismiss, the trial court’s February 26, 2010 Order
denied these motions on the basis that the Defendants failed to present the court with
any new evidence or reason that the court’s initial ruling was incorrect. Based on the
motions presented to the trial court before the February 26, 2010 Order that denied all
the motions except for reinstating the appeal, the lower court committed reversible
error regarding the undisputed documentary evidence of the defective appointment of
the special deputy sheriff, and the fact that the Sheriff sale was conducted and the
Sheriff Deed was executed prior to the effective date of the purported appointment of
the Special Deputy.
Page 11 of 27
Argument I
The trial court erred in ruling that the Appellants failed to present any new evidence or
reason that the court’s initial ruling that granted the Possession Judgment was incorrect, when
Appellants presented undisputed documentary evidence that the sheriff deed was defective and
void, because the person conducting the sheriff sale and signing the sheriff deed was not properly
appointed, or authorized to do so in accordance with Michigan law.
Standard of Review
This case involves a question of law, which is reviewed de novo on appeal. In re Jude,
228 Mich App 667, 670; 578 NW2d 704 (1998).
Analysis
This case involves a foreclosure by advertisement and purported sheriff sale on the
property commonly known as 19935 Vaughan in Detroit, Wayne County, Michigan. At issue is
whether Appellee’s sheriff deed, signed by Sterling K. Harrison on August 29, 2007, is valid.
(The sheriff deed appears at Exhibit 13.)
National City Bank obtained a Possession Judgment on March 23, 2009 based upon the
August 29, 2007 sheriff deed. Pursuant to MCR 2.612(C), Appellants initially moved for relief
from the Possession Judgment and denial of their motion to dismiss on July 31, 2009. However,
on January 4, 2010, as part of their amended motion to disqualify the trial court judge due to the
change in the Michigan court rules, Appellants also amended their motions for relief from
possession judgment and relief from the denial of their motion to dismiss and attached as
exhibits to their amended motions documentary evidence that the person conducting the sheriff
sale and signing the sheriff deed was not appointed to do so in accordance with applicable
Page 12 of 27
Michigan law. Appellee did not respond to either the original or amended motions, thereby
conceding to the documentary evidence.
On February 26, 2010, the trial court ruled that no new evidence or reason was presented
to the court that showed the court’s initial ruling was incorrect. It is unclear from the February
26, 2010 Order whether the trial court was ruling on the original or amended motion for relief
from possession judgment. Although it may be construed that the trial court did not rule on the
amended motion, it is an issue of law with all necessary facts properly before this Court, hence
the court may address the issue. Miller v. Inglis, 223 Mich.App. 159, 567 N.W.2d 253. The
question of law that remains is whether the sheriff sale was conducted by a person not authorized
to do so in accordance with Michigan law. Judicial economy and substantive justice would
direct that this court resolve the trial court order’s ambiguity in the Appellants’ favor and allow
this appeal to proceed on the merits in order for the Possession Judgment to be set aside or
vacated because of the defective and void sheriff deed.
As mentioned above, in both the original and amended motions, Appellants cited grounds
pursuant to MCR 2.612(C) as the basis for their motion for relief from the March 23, 2009
Possession Judgment. MCR 2.612(C) states,
(1) On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds:
(a) Mistake, inadvertence, surprise, or excusable neglect. (b) Newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under MCR 2.611(B). (c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an
adverse party. (d) The judgment is void. (e) The judgment has been satisfied, released, or discharged; a prior judgment on
which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application.
(f) Any other reason justifying relief from the operation of the judgment. (2) The motion must be made within a reasonable time, and, for the grounds stated in subrules (C)(1)(a), (b), and (c), within one year after the judgment, order, or proceeding
Page 13 of 27
was entered or taken. A motion under this subrule does not affect the finality of a judgment or suspend its operation.
In the January 4, 2010 amended motion, Appellants contended that, due to mistake, fraud,
and misrepresentation, a person who was not a deputy sheriff conducted the August 29, 2007
sheriff sale. Undisputed documentary evidence points to the fact that John T. Harrison, an
attorney for the law firm representing the Appellee, Trott and Trott, prepared the sheriff deed and
affidavit of auctioneer. As part of the affidavit, the auctioneer, Sterling K. Harrison, swore and
deposed before a notary that he was a deputy sheriff. This statement is false: The only
appointment that the Wayne County Clerk had on file for Sterling K. Harrison during the time
period of August 29, 2007 was his appointment as special deputy sheriff. (See Exhibit 14.) If
Sterling K. Harrison was a deputy sheriff, he should have had a written appointment on file with
the Wayne County Clerk. MCL 51.73 mandates,
Every appointment of an under sheriff, or of a deputy sheriff, and every revocation thereof, shall be in writing under the hand of the sheriff, and shall be filed and recorded in the office of the clerk of the county; and every such under sheriff or deputy shall, before he enters upon the duties of his office, take the oath prescribed by the twelfth article of the constitution of this state. But this section shall not extend to any person who may be deputed by any sheriff to do a particular act only.
The appointment that Wayne County Clerk Cathy M. Garrett had on file and date-
stamped June 21, 2006 stated that Sterling K. Harrison was appointed special deputy sheriff for
the year ending December 31, 2008. This appointment was signed by Harold Cureton, the
undersheriff of Wayne County.
According to MCL 600.3232, the person who conducts the sheriff sale, the auctioneer,
must sign the sheriff deed. MCL 600.3232 states,
“The officer or person making the sale shall forthwith execute, acknowledge, and deliver, to each purchaser a deed of the premises bid off by him; and if the lands are situated in several counties he shall make separate deeds of the lands in each
Page 14 of 27
county, and specify therein the precise amounts for which each parcel of land therein described was sold. And he shall endorse upon each deed the time when the same will become operative in case the premises are not redeemed according to law. Such deed or deeds shall, as soon as practicable, and within 20 days after such sale, be deposited with the register of deeds of the county in which the land therein described is situated, and the register shall endorse thereon the time the same was received, and for the better preservation thereof, shall record the same at length in a book to be provided in his office for that purpose; and shall index the same in the regular index of deeds, and the fee for recording the same shall be included among the other costs and expenses allowed by law. In case such premises shall be redeemed, the register of deeds shall, at the time of destroying such deed, as provided in section 3244 of this chapter, write on the face of such record the word “Redeemed”, stating at what date such entry is made, and signing such entry with his official signature”
Specific individuals have the authority to conduct sheriff sales. MCL 600.3216 states,
“The sale shall be at public sale, between the hour of 9 o'clock in the forenoon and 4 o'clock in the afternoon, at the place of holding the circuit court within the county in which the premises to be sold, or some part of them, are situated, and shall be made by the person appointed for that purpose in the mortgage, or by the sheriff, undersheriff, or a deputy sheriff of the county, to the highest bidder.” [Emphasis added.]
MCL 600.3216 does not specifically enumerate special deputies among the list of those
authorized to conduct sheriff sales. A fundamental principle of statutory construction is that “a
clear and unambiguous statute leaves no room for judicial construction or interpretation.”
Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993). When a legislature has
unambiguously conveyed its intent in a statute, the statute speaks for itself and there is no need
for judicial construction; the proper role of a court is simply to apply the terms of the statute to
the circumstances in a particular case. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528
NW2d 681 (1995); City of Lake Angelus v Oakland Co Road Comm’n, 194 Mich App 220, 224;
486 NW2d 64 (1992). Finally, in construing a statute, we must give the words used by the
Legislature their common, ordinary meaning. MCL 8.3a; MSA 2.212(1). Because MCL
Page 15 of 27
600.3216, a statute enacted in 1961, omits mention of special deputies among the persons
authorized to conduct sheriff sales, strict statutory construction would conclude that special
deputies are not authorized to conduct sheriff sales. It could be inferred that the intent of the
Michigan Legislature was to have duly-appointed and sworn county law enforcement officers
conduct the sale of property because of the education and special training received by such
officers or because law enforcement officers are bonded. The inference of the intent of the
Legislature is derived from MCL 51.70 which states:
“Each sheriff may appoint 1 or more deputy sheriffs at the sheriff's pleasure, and may revoke those appointments at any time. Persons may also be deputed by a sheriff, by an instrument in writing, to do particular acts, who shall be known as special deputies and each sheriff may revoke those appointments at any time. A sheriff shall not be responsible for the acts, defaults, and misconduct in office of a deputy sheriff. The appointed deputy or deputies, other than special deputies, before entering upon the duties of office shall execute and file with the county clerk an official bond running to the people of this state in the amount of at least $2,500.00, if the county board of commissioners determines an individual bond is necessary, which bond shall be conditioned in the same manner as the bond required of the sheriff, and with sufficient sureties as the presiding judge of the circuit court for the county approves. A county by resolution of its county board of commissioners may pay premiums on the individual bond running to the people of this state in the amount of at least $2,500.00 as prescribed by the county board of commissioners. A bond required by this section shall be conditioned in the same manner as the bond required for the sheriff and have sufficient sureties.” [Emphasis added.]
In accordance with MCL 51.70, the bond placed upon deputy sheriffs permits the sheriff
to not be responsible for the deputies’ acts, defaults, and misconduct, while at the same time the
bond protects the people of the state from the deputies’ acts, defaults, and misconduct. The same
statute does not require a bond for special deputy sheriffs, thus inferring that a sheriff is
responsible for the acts, defaults, and misconduct of the special deputies that the sheriff appoints.
It must also be noted that Sterling K. Harrison was not even a special deputy on the day
of the sheriff sale because his appointment was defective. MCL 51.70 outlines that only sheriffs,
Page 16 of 27
not undersheriffs, may appoint special deputies. As evidenced in Exhibit 14, the written
appointment for Sterling K. Harrison was signed by Harold Cureton as undersheriff. MCL 51.72
dictates the circumstances under which an undersheriff may execute the duties of a sheriff. MCL
51.72 states,
If a vacancy occurs in the office of sheriff of a county, the undersheriff of the county shall in all things execute the office of sheriff, until a sheriff is elected and qualified. A default or misfeasance in office of an undersheriff in that capacity, shall be considered to be a breach of the condition of the bond given on behalf of or by the sheriff who appointed the undersheriff, and also a breach of the condition of the bond executed on behalf of or by the undersheriff to the sheriff by whom the undersheriff was appointed.
The written appointment of Sterling K. Harrison claims to be made while Warren C.
Evan was sheriff of Wayne County. Appellee provided no evidence to the trial court that the
office of sheriff was vacant, thus empowering the undersheriff, Harold Cureton, with statutory
authority to appoint Sterling K. Harrison as a deputy sheriff. It must therefore be concluded that
the office of sheriff was not vacant when the undersheriff signed the special deputy appointment,
thus rendering the appointment as void due to lack of statutory authority.
In addition, the written appointment on its face claims that the appointment was for the
year ending December 31, 2008, even though the appointment was date-stamped by the Wayne
County Clerk as being filed on June 21, 2006. Given that the appointment must be in writing, it
therefore follows that even if the appointment had been signed by Wayne County Sheriff Warren
C. Evans, because the appointment’s time period was limited to the 2008 calendar year, then
Sterling K. Harrison was not duly appointed a special deputy in 2007, the year in which the
disputed sheriff sale took place. If the appointment is defective, then Sterling K. Harrison was,
at best, a civilian employee of the Wayne County Sheriff’s Office. Civilian sheriff department’s
employees are not statutorily authorized to conduct the sheriff sale or sign the sheriff deed.
Page 17 of 27
Consequently, the sheriff deed is void and the Possession Judgment, predicated upon the void
sheriff deed, should be set aside or vacated.
The legal issue regarding the defective Wayne County special deputy appointments has
been raised at least three times. In Federal National Mortgage Association v. Strother, case
number 09-C2299-LT in the 35th District Court of Michigan, Judge Ronald W. Lowe granted
summary disposition in favor of the defendants on July 24, 2009. (A copy of this order is
annexed hereto as Exhibit 16.) In Strother, a mortgage company foreclosed on a homeowner
and sought a judgment of possession after the redemption period expired following a sheriff sale.
A special deputy named Yolanda Diaz conducted the sheriff sale and signed the sheriff deed in
Strother. However, the Strother case is similar to the case at bar because the under sheriff signed
both appointments of purported special deputies. Judge Lowe ruled in Strother that MCL 51.70
did not empower the under sheriff with statutory authority to appoint special deputies or
deputies, thus the Strother court dismissed the plaintiff’s complaint for possession.
In PHH Mortgage Corporation v. Cude, case number 09-02-2565 LT in the 23rd District
Court of Michigan, Judge William J. Sutherland set aside a default judgment and granted
summary disposition in favor of the defendant on September 23, 2009. (A copy of this order and
its exhibit, the appointment of Adrienne Sanders, is annexed hereto as Exhibit 17.) In Cude, a
mortgage company sought a judgment of possession against a homeowner after foreclosure by
advertisement, a sheriff sale, and expiration of the redemption period. Again, similar to both the
case at bar and Strother, a purported special deputy, Adrienne Sanders, conducted the sheriff sale
but was appointed by someone signing for Wayne County Sheriff Warren C. Evans. Of note is
that the signature of the person signing the Adrienne Sanders appointment in Cude is similar to
the signature of Harold N. Cureton who signed Sterling K. Harrison’s appointment in the case at
Page 18 of 27
bar. The Cude court found that a person, whose signature was not legible, could not appoint
special deputies for Wayne County Sheriff Warren C. Evans. As in Strother, the Cude court
found that MCL 51.70 does not permit anyone other than a sheriff to appoint special deputies.
Consequently, the Cude court found the sheriff deed signed by Adrienne Sanders to be an invalid
transfer and that the district court did not have jurisdiction to act on the plaintiff mortgage
company’s original complaint against the homeowner Tammie Cude to terminate her tenancy.
By lack of jurisdiction, it is inferred that the Cude court is stating that it did not have subject
matter jurisdiction to hear the mortgage company’s complaint.
Summary dispositions in the district court may proceed pursuant to MCR 2.116(C)(10)
which states,
Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.
However, when genuine issues of material fact are present to such an extent that the title
of the disputed property becomes at issue, then MCL 600.2932 grants circuit courts, rather than
district courts, subject matter jurisdiction in cases involving quiet of title. MCL 600.2932 states:
“Any person, whether he is in possession of the land in question or not, who claims any right in, title to, equitable title to, interest in, or right to possession of land, may bring an action in the circuit courts against any other person who claims or might claim any interest inconsistent with the interest claimed by the plaintiff, whether the defendant is in possession of the land or not.” [Emphasis added.]
Consequently, it is inferred that the Cude court found that its initial default judgment to
the mortgage company must be set aside because the default judgment was based upon a sheriff
deed which later proved to be an invalid transfer. The Cude court, as a district court, therefore
did not have subject matter jurisdiction to hear quiet title issues.
Page 19 of 27
In Re Antonio Attard, case number 08-57422 and Attard v. Wells Fargo Bank, adversarial
proceeding case number 08-5064 in the U.S. Bankruptcy Court for Eastern Michigan involves an
adversarial proceeding conducted in the bankruptcy case, in which 11 U.S.C. §1322(c)(1) was at
issue. (The adversarial complaint in Attard v. Wells Fargo is annexed hereto as Exhibit 18. The
August 6, 2009 Judgment for In Re Attard is also annexed hereto as Exhibit 18.) This federal
statute, 11 U.S.C. §1322(c)(1) states:
(c) Notwithstanding subsection (b)(2) and applicable nonbankruptcy law--
(1) a default with respect to, or that gave rise to, a lien on the debtor’s principal residence may be cured under paragraph (3) or (5) of subsection (b) until such residence is sold at a foreclosure sale that is conducted in accordance with applicable nonbankruptcy law; and
(2) in a case in which the last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor’s principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to section 1325(a)(5) of this title.
The Attard debtor filed Chapter 13 and sought confirmation of a plan that would cure the
default on the mortgage for his principal residence in Livonia, Michigan. In his adversarial
complaint, the Attard debtor alleged that even though Wells Fargo Bank possessed a sheriff
deed, a 2007 foreclosure sale had not been conducted in accordance with applicable
nonbankruptcy law because the person conducting the sheriff sale, Adrienne Sanders, was not a
Wayne County deputy as represented in the sheriff deed. Neither was Adrienne Sanders
properly appointed to do particular acts as a special deputy. In the August 6, 2009 Judgment,
U.S. Bankruptcy Judge Thomas J. Tucker ruled in favor of the Attard debtor and found that the
foreclosure (i.e, sheriff) sale was not conducted in accordance with Michigan (nonbankruptcy)
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law, therefore the disputed property remains the debtor’s principal residence for which he may
confirm a plan to cure its defaulted mortgage.
Thus, two other Michigan district courts and one federal court have found that sheriff
deeds signed by persons with defective appointments create invalid transfers of ownership. The
Michigan district courts dismissed the mortgage company’s complaint for possession or set aside
the mortgage company’s default judgment of possession. The bankruptcy court has effectively
ruled that such sheriff deeds are void, finding the debtor to still be the titled owner of such
principal residence. However, when these directly on-point precedents and the documentary
evidence were presented to the district court in the case at bar in Appellants’ January 4, 2010
amended motion, if the district court indeed considered the amended motion, it then ruled that
the new evidence did not show that the court’s initial ruling was incorrect. The district court’s
finding is clearly erroneous. Accordingly, Appellants seek that this court set aside or vacate the
possession judgment on the basis that the sheriff deed is void due to it being signed by a person
not statutorily authorized.
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Argument II
This court may and should waive the escrow order of $500 per month.
Standard of Review
The interpretation and application of court rules presents a question of law that this Court
reviews de novo. Reitmeyer v Schultz Equipment & Parts Co, Inc, 237 Mich App 332, 336; 602
NW2d 596 (1999).
Analysis
On February 26, 2010, the district court ordered that the appeal be reinstated and
modified the escrow to $500 per month. Appellants asserted in Argument I that the district
court’s February 26, 2010 order did not rule on their January 4, 2010 amended motions that
included an amended motion to disqualify and an amended motion for relief from possession
judgment pursuant to MCR 2.612(C). Appellants assert that MCR 4.201(M)(1)(b) permits the
escrow order to be waived. MCR 4.201(M)(1)(b) states:
(M) Postjudgment Motions. Except as provided in MCR 2.612, any postjudgment motion must be filed no later than 10 days after judgment enters.
(1) If the motion challenges a judgment for possession, the court may not grant a stay unless
(a) the motion is accompanied by an escrow deposit of 1 month's rent, or
(b) the court is satisfied that there are grounds for relief under MCR 2.612(C), and issues an order that waives payment of the escrow; such an order may be ex parte. If a stay is granted, a hearing shall be held within 14 days after it is issued.
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Simplistically, Appellants assert that if the appellate court applies Miller v. Inglis, page
13 supra, and rules on the issue that the invalid sheriff deed presented grounds for relief under
MCR 2.612(C), then this court may also waive the escrow that was modified on February 26,
2010. Appellants contend that judicial economy would justify such a simplification.
Alternatively, this court may determine that the district court did indeed rule on the
January 4, 2010 amended motions and that the district court concluded, in its February 26, 2010
Order, that the documentary evidence presented in the amended motions did not justify setting
aside the Possession Judgment. This court would then review the February 26, 2010 Order and,
consistent with other district court precedents, rule that the February 26, 2010 Order must be
reversed and Possession Judgment set aside or vacated because the person conducting the sheriff
sale and signing the sheriff deed was not statutorily authorized to do so. This court could then
find that the lower court abused its discretion by not waiving the escrow. By vacating the
Possession Judgment and setting aside the void sheriff sale and sheriff deed, as required by the
Michigan district court and federal court precedents, this court could avert remand and allow this
case to finally be resolved in accordance with Michigan statutory law and court rules.
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Relief Requested
WHEREFORE, Appellants, Thelma Belle and Anita Belle, respectfully request that this
Honorable Court vacate the trial court’s Possession Judgment, and set aside the Sheriff’s Sale
and Sheriff Deed . In addition, pursuant to MCR 2.625, Appellants seek $13,000 in attorney’s
fees plus reasonable costs.
Respectfully submitted,
_________________________________Arthur C. Kirkland, Jr. (P27551)Attorney for Appellants Thelma Belle & Anita BelleP.O. Box 35676Detroit, MI 48235Phone: (313) 909-5895Email: [email protected]
Dated April 27, 2010
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Proof of Service
I certify that a copy of the foregoing Appellants’ Brief with 18 Exhibits was served on
opposing counsel, Gregory MacKay of Trott & Trott P.C., by regular U.S. Mail delivery to
31440 Northwestern Hwy, Suite 200, Farmington Hills, MI 48334 on April 27, 2010.
Respectfully submitted,
_______________________________
Anita E. Belle, Defendant/Appellant19935 VaughanDetroit, MI 48219Phone: 313-532-0161
Dated April 27, 2010
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Exhibits
Exhibit 1: 36th District Court Register of Actions dated April 12, 2010
Exhibit 2: Judgment of Possession dated March 23, 2009
Exhibit 3: Order Denying Motion to Dismiss, both dated March 23, 2009.
Exhibit 4: Bond on Appeal filed on April 1, 2009
Exhibit 4: Request for Transcript and Copy of the $20 unendorsed check to court
reporter Maia Fields
Exhibit 5: Bond on Appeal
Exhibit 6: Order of Bond and Order of Escrow, dated April 14, 2009, in addition to
envelope containing said Orders, postmarked May 5, 2009.
Exhibit 7: Copy of unendorsed check for $175 to court reporter Maia Fields and Receipt
of Deposit for Transcripts.
Exhibit 8: Order Dismissing Appeal, dated May 26, 2009 and envelope containing said
Order, postmarked June 3, 2009.
Exhibit 9: Receipt for $175 cash for transcripts, dated June 9, 2009.
Exhibit 10: Certificate of Ordering of Transcript on Appeal, dated June 11, 2009.
Exhibit 11: June 19, 2009 Coverpage and Certificate of Court Reporter for transcripts of
hearings held on February 10, 2009, March 10, 2009, and March 23, 2009.
Exhibit 12: Notice of Filing of Transcript and Affidavit of Mailing, dated June 19, 2009.
Exhibit 13: Sheriff Deed dated August 29, 2007.
Exhibit 14: Special Deputy Sheriff Appointment for Sterling K. Harrison
Exhibit 15: Order of February 26, 2010.
Exhibit 16: Federal National Mortgage Association v. Cortney L. Strother.
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Exhibit 17: PHH Mortgage Corporation v. Tammie R. Cude
Exhibit 18: Attard v. Wells Fargo Bank adversarial proceeding complaint and Judgment
in In Re Attard.
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