thirteen twenty six seventy one scott lewis vs new york community bank at all oral argument not to exceed fifteen minutes per side mr smith for the pla good morning or hours  of the lower court judge reaches a conclusion that the simon is in effect of so what we have here is a case where a lender doesn't have a real estate so for now we're in a situation where the statute for closure by a advertisement which is generally they say statutes are strictly construed in there and forcing the rights of contract oh oh now in a situation where let me ask you this what's the defect i showing a prejudice which would be that you would have to get your client would have been in a better position to preserve his interest absence the not compliance with the statute and writing i think what you're being a ass is what your specific position in terms of getting your client if you're complaining about ok let's do that you in the statute i believe it sort of six hundred point three two zero four three you have to have a chain of title there's no chain of total who made it it's not even a question of fact what do you mean there's no chain of title of the title was passed from one into a from one financial institution to the other don't don't mean thing that occurred that you could raise worse that there was a failure to record in every instance the t disagree there is a dispute on title if you look at page six of that decision instead of of the lower court decision the judge actually goes through why the  title and the assignments are defective there's been various parties involved in this transaction there's been am trust there's been fannie mae f t i see new york community think yeah yeah became the title holder dow was expunged and then they foreclosed new york's community bank foreclosed again after mers the second time thing that you're talking about i'd only want to know know why you're claiming this is a legal issue here at look look at the you can foreclose on mortgage that you don't have we're not talking about the issue in michigan about you know that you have to own a note or at who owns a note you can foreclose on a mortgage that you don't have an interest in that i'm saying that put i want to get to the prejudice the problem with michigan law which kno as tackled head on or would you like to kick some time did you reserve some time for about his five months would you like to take some time from that to continue your argument because your reliance on you can with the the issue of michigan law as the way they don't really define what prejudices they the way a lot of judges say is you have to take the money and and have it outside to redeem the property and unless someone is physically preventing you from redeeming it you have no prejudice well obviously that doesn't cover all the bases if there if someone's trying to steal your property if there's a forgery or if the bank has no title and more importantly in the cases if you're subject to double by ability which in this case is not a theoretical  possibility there were two foreclosures that were one was expunged of those a mortgage modification which we ledge the bank  breached my client doesn't know oh who holds the note if they're going after him for it to fish and see there's been different amounts so that have been foreclosed on seventy five thousand one hundred please the court ever comes up on behalf of the epilate new york community bank this is an appeal from an unopposed motion for summary judgment there was no or there was a late response it was rejected by the district court there's no appeal from that decision the the i think the court correctly observed this is a garden variety closure action that's been nothing more nothing less than an attempt to the late proceedings under kim is referenced by the court a fl really if there's to be any defect you have you absolutely have a chain of title establishing title going from the original mortgage or murders to my client new york community bank is asked by judge seiler and that is  identified in the in the case is document number for dish thirteen at page one sixteen one sixty one of the transcript when the assignment from the f d i c was recorded done to new york community bank on february five of two thousand and thirteen the problem for the appellant in this case is is is is noted by the court is there's a there's a complete lack of prejudice in this case because for well for several reasons one is the there is no risk of double recovery the note in this case belongs to my client was assigned to it my client was the servicer of the note and my client is the essig me of the mortgage  there's some efforts about this loan modification we improper notice given under thirty to a five a claim it's all those issues that are not raised in the pleadings in this case at all not raised before the trial court and not properly before this court there's in fact if you take a look at what is available in the record you see there's ample evidence that mr lewis was given ample opportunities including to loan modifications both of which you defaulted under  that in addition to the the lack of prejudice under the kim decision the well let me i'm sorry let me speak to that a little more detail there is not only because there's a there's a demonstration of a lack of prejudice on several fronts there's no risk of double recovery in this case there in addition the original mortgage was assigned to am trust bank formerly known as ohio savings bank on may twelfth of two thousand and nine the trial court found correctly so the name trust assets were transferred by operation of law to the f d i c on december ninth of two thousand and nine and april twenty sixth of two thousand and twelve murders who at that time would not have had title to the property assigned the mortgage to new york community bank my client so you have this out of sequence assignment whereby mers was attempting to transfer the title to my client new york community bank but it problem was that it already had transferred it to ohio ohio savings bank or am trust bank which had been transferred by operation of law to if to the f d i c that ultimately was corrected by a transfer by the f b i see who was the legal holder of the type to the mortgage on and thirteen the problem that the district court noted was that the that assignment occurs after the foreclosure process that's the defect the problem is is that the d fed type of defect does not  out the foreclosure proceeding that was initiated by my client but simply it renders avoidable subject to an establishment of prejudice by the other side which has not been shown and i would add has not even been alleged in the complaint that was filed in this case could have been to redeem establishes that there wasn't any prejudice in this case and then finally i would just note that there hasn't been any attempt to address the argument that the this is an action that was filed first seeking equitable relief in this court and a number of district courts in michigan have provided the rule that if in a situation where the mortgage or homeowner fails to pay the pay an honor it's contractual obligations to the mortgage or in the lender it can't turn around and seek equity from the court when it failed to do equity itself and under the doctrine of unclean hands is barred from pursuing these roomies that's an alternative basis for seeking to affirm the decision of the district court which we ask you to do mortgage to the party for causing the mortgage it didn't happen he signed it from the f b i he was seven months later so why doesn't michigan just say we have these statutes but we're not going to follow and because we're we're going to say well even if thaw under doesn't have total doesn't have a valid mortgage there's preexisting problems take it as far as a forgery there's no prejudice because he's people didn't pay on time or budget we course we are alleging that my  my client did pay and then they breached the agreement they reached the amount oh as far as this isn't theoretical there when there is a risk of double bill he could get took title before but it was expunged this isn't a garden variety this isn't like someone just saying i want to know who the note or coming up with some assignment trust me saying that this was botched over a period of a years because no one cared because the bank was out of business and my client didn't even know who to deal with but under michigan law you don't know is they don't have to follow the statute you don't know i have to know who the mortgage company is as long as some time afterwards say they corrected and then you can get sued  violation the statute didn't have the chain of total pursuant to it so now you get to the prejudice now can someone who has no real estate interest whatsoever which is really the fact violation of statute and secondly my client is prejudiced because if he was dealing with the real party in interest and they kept their agreement he would keep his house we don't even know who to deal with i think we have your position in hand if you were to remain in counsel table for a moment you can have a seat mr smith over main this carefully we've had an opportunity of course to consider it through the briefs that had been previously filed and the record in the case and now today through hearing your argument it is not a case in which a detailed written opinion is necessary to fully explain the basis for the court's ruling and so i will do so or d because the record claim of title did not reflect chain of title did not reflect in y c b c interest in the mortgage at the time the foreclosure was initiated the district court granted summary judgment in y c b concluding that although there was a defect in the chain of title at the time of foreclosure mr lewis could not show prejudice as required by michigan la to showing a strong case of fraud or irregularity relating to the foreclosure procedure itself and at prejudiced bad defendant you're to comply with the michigan noncompliance the there now other issues properly before the court at this time and therefore because mr lewis has failed to demonstrate prejudice the panel