Litigation Log
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Michigan Foreclosure Prevention Project attorneys and housing counselors often work together to take a case to court, or find themselves in court defending a homeowner who is being sued or evicted by a lender. Other times, courts issue opinions in other matters that have an impact on cases being litigated by MFPP partners. This Litigation Log highlights noteworthy cases and opinions from around the state. You can submit a synopsis of your recent litigation to mfppinfo@lsscm.org or comment on a posting below.
Two additional MERS decisions from the Court of Appeals, August 2011
In August, the Court of Appeals published two additional decisions concerning MERS - one discussing the retroactivity of the Saurman opinion (Richard v. Schniderman), and the other reversing the trial court's granting of summary disposition to MERS (Bakri v. MERS et al). You can review either decision on the Michigan Court of Appeals website.
MERS decision issued by Court of Appeals on 4/21/11
The Court of Appeals issued a decision (and a dissent) in the consolidated MERS cases on 4/21/11. "The sole question presented is whether MERS is an entity that qualifies under MCL 600.3204(1)(d) to foreclose by advertisement on the subject properties, or if it must instead seek to foreclose by judicial process. We hold that MERS does not meet the requirements of MCL 600.3204(1)(d) and therefore, may not foreclose by advertisement."
The full decision (and dissent) are available on the Court of Appeals website.
Erts v. IndyMac, One West Bank, et al., 30th Circuit Court
LSSCM Attorneys Kellie Maki and Nate Aquino filed an affirmative action for a client based on the lender/servicer's failure to follow the 90-day law. A TRO was issued at the time of filing the complaint, but the lender/servicer opposed the Show Cause motion, arguing that because the homeowners wouldn't qualify for a loan modification, they were not entitled to a mediation meeting under the 90-day law. 30th Circuit Court judge Paula Manderfield was not persuaded by this argument, and issued the Preliminary Injunction. Litigation is still pending.
Brown v. BONYM, USDC Western District of MI, Southern Division, January 21, 2011, 2011 U.S. Dist. LEXIS 6006
Federal District Court Order dismissing Plaintiff's claim for a breach of contract based on Lender failing to offer Homeowner a permanent modification after entering into a trial period plan. This Order was the result of Defendants' 12(b)(6) Motion to Dismiss; the complaint involved several counts, some of which were dismissed and some which were not. Full text of the order is available on Lexis: 2011 U.S. Dist. LEXIS 6006.
Funderburk v. Fifth Third Bancorp, Michigan Court of Appeals (Unpublished), 12/28/10
The court held that the trial court did not abuse its discretion by dismissing the plaintiff's case due to her ongoing failure to comply with an escrow order and her "clear inability to do so in the future." This appeal concerned the trial [Circuit] court's order dismissing plaintiff's claims and disbursing the escrow monies to defendant [entered in a District Court eviction case]. The trial court entered an order granting defendant a default judgment after a hearing on defendant's motions alleging that plaintiff failed to make payments in accordance with the escrow order and to produce documents requested during discovery to support her claims she was not in default on the mortgage. Affirmed. Full text of this opinion is available here.
