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STATE OF MICHIGAN 

COURT OF APPEALS 

CITIZENS BANK, a/k/a FIRSTMERIT BANK, 

N.A., 

 Plaintiff-Appellee, 

UNPUBLISHED 

July 23, 2015 

v No. 318107 

Ingham Circuit Court 

RANDIE K. BLACK, LC No. 13-000866-AV 

 Defendant-Appellant. 

CITIZENS BANK, a/k/a FIRSTMERIT BANK, 

N.A., 

 Plaintiff/Counter DefendantAppellee, 

v No. 318981 

Ingham Circuit Court 

RANDIE K. BLACK, LC No. 11-001186-CK 

 Defendant/Counter PlaintiffAppellant, 

and 

BLACK LAW OFFICES, 

 Defendant/Counter Plaintiff. 

BLACK LAW OFFICES, P.C., 

 Plaintiff, 

and 

RANDIE K. BLACK, 

 Plaintiff-Appellant, 
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v No. 318982 

Ingham Circuit Court 

CITIZENS BANK a/k/a FIRSTMERIT BANK, 

N.A., 

LC No. 11-000017-CZ 

 Defendant-Appellee, 

and 

JOHN DOE 1 THROUGH 10, 

 Defendants. 

Before: RONAYNE KRAUSE, P.J., and MURPHY and SERVITTO, JJ. 

PER CURIAM. 

 Appellant Randie K. Black (Black) appeals various orders entered by the circuit and 

district courts relative to her dispute with appellee Citizens Bank, a/k/a FirstMerit Bank, N.A. 

(the bank), regarding the loss of her property through foreclosure. We affirm. 

 At the heart of these consolidated appeals arising from three muddled lower court cases is 

a challenge by Black of a foreclosure by advertisement, sheriff’s sale, and subsequent summaryproceedings eviction pursued by the bank, which held two promissory notes that were in default 

and had been executed by Black as obligor, one of which was secured by a mortgage on Black’s 

later foreclosed-upon law office building.1 Black and Black Law Offices, P.C. (BLO), actually 

initiated the litigation by filing a suit against the bank and others, alleging a variety of tort, 

contract, and statutory claims regarding purported improprieties related to Black’s line of credit 

 

1

 The note secured by the mortgage on Black’s law office, which arose from a commercial loan, 

was executed in 2000 and had a maturity date of April 2005. In 2003, an agreement was reached 

to amend the note, and the maturity date was extended to April 2008. In March 2008, the note 

was amended pursuant to a forbearance agreement, extending the maturity date to April 2011. 

Despite negotiations, no further accommodations or agreements could be reached, and Black 

eventually defaulted on the note. With respect to the underlying history of the second 

promissory note, in 2004, a home equity line of credit for Black had been established and it 

expired in 2009, with Black owing almost the full amount of the line of credit. To address the 

resulting outstanding debt, Black, in early 2010, executed the second note, and it represented the 

full amount due and owing under the line of credit, giving Black an opportunity to satisfy the 

debt over the course of 20 years via monthly payments. The second note was secured by a 

mortgage on Black’s private residence. Despite negotiations, which also encompassed the first 

note, no further accommodations or agreements could be reached, and Black eventually 

defaulted on the second note. The bank never pursued foreclosure of Black’s home relative to 

the default on the second note. 
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and associated negative credit reports for late payments. The parties then stipulated to a 

dismissal of this suit without prejudice. The bank later commenced a separate collection action 

against Black on the two defaulted promissory notes, seeking money damages at law for breach 

of contract. Black and BLO proceeded to file an amended complaint against the bank under the 

same lower court docket number assigned to their action that had been dismissed, again alleging 

a variety of tort, contract, and statutory claims. Eventually that improperly-filed amended 

complaint in the defunct suit was treated as, or became, a counterclaim in the bank’s action on 

the two notes; the two suits were, in effect, consolidated below, and we shall hereafter refer to 

them as the “civil suit” in the singular.2

 

 Shortly after the bank had commenced the civil suit to collect on the two promissory 

notes, it initiated a foreclosure by advertisement with respect to the mortgage applicable to the 

first secured note (hereafter the “law-office note”), thereby maintaining two remedial tracks in 

regard to obtaining relief concerning that one particular debt. While the circuit court initially 

granted Black a temporary restraining order (TRO) in regard to a scheduled sheriff’s sale, the 

court subsequently dissolved the TRO and the mortgaged real estate was sold to the bank at the 

sheriff’s sale, which was followed by the running and expiration of the redemption period absent 

redemption by Black. The sheriff’s deed inaccurately proclaimed that “no suit or proceedings at 

law or in equity have been instituted to recover the debt secured by . . . [the] mortgage[.]” After 

expiration of the redemption period, two orders were entered by the circuit court in the civil suit 

on motions filed by the bank. These orders provided that the sheriff’s sale was valid, that Black 

no longer had an interest in the property (law office building), that third-party lease contracts 

executed by Black relative to the property were void, that the bank’s claim for money damages 

regarding the law-office note was dismissed in light of the foreclosure, that the bank was 

awarded summary judgment relative to the claim for money damages pertaining to the second 

note (hereafter the “home note”), that Black’s counterclaim was summarily dismissed, and that 

an award of attorney fees and costs was reserved for later resolution. 

 Pursuant to MCL 600.5701 et seq., and MCR 4.201, which govern summary proceedings 

to recover the possession of premises, the bank next initiated an eviction action in the district 

court relative to the law office building. The eviction action resulted in the entry of a default 

possession judgment in favor of the bank and the denial of multiple post-judgment motions filed 

by Black. And the circuit court then denied Black’s delayed application for leave to appeal that 

challenged the district court’s rulings.3

 About two months after the circuit court’s denial of 

Black’s appeal of the district court’s decisions, the circuit court entered a stipulated final order in 

the civil suit that awarded the bank $4,000 in attorney fees. 

 

2

 These two lawsuits formed LC Nos. 11-000017-CZ and 11-001186-CK (COA Docket Nos. 

318982 and 318981, respectively). 

3

 The summary proceedings action for eviction filed in the district court and the circuit court’s 

rejection of Black’s appeal of the district court’s rulings formed LC No. 13-000866-AV (COA 

Docket No. 318107). We note that the circuit court judge who handled the district court appeal 

was a different judge than the one who presided over the civil suit. 
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 Black appealed by claim of right the circuit court’s rulings in the civil suit to this Court4

and, with respect to the circuit court’s appellate decision affirming the district court’s possession 

judgment, Black appealed to us by way of a delayed application for leave. This Court denied the 

application and the subsequent motion for reconsideration. Citizens Bank v Black, unpublished 

orders of the Court of Appeals, entered January 30 and March 26, 2014 (Docket No. 318107). 

However, in lieu of granting leave to appeal, our Supreme Court remanded the matter “for 

consideration on leave granted,” directing our attention to the fact that the appeals with respect to 

the related civil suit were pending in this Court. Citizens Bank v Black, 497 Mich 899; 856 

NW2d 34 (2014). Thereafter, this Court consolidated all of the appeals. Citizens Bank v Black, 

unpublished order of the Court of Appeals, entered January 23, 2015 (Docket Nos. 318107, 

318981, and 318982). 

 On appeal, Black first argues that the foreclosure proceeding was invalid, given that the 

bank pursued the foreclosure by advertisement with respect to the law office building while it 

concomitantly maintained the civil suit to collect money damages on the debt associated with the 

law-office note, thereby violating MCL 600.3204(1)(b). Black additionally contends that the 

foreclosure sale was invalid because the sheriff’s deed included the false recitation that no legal 

action to collect on the underlying debt had been instituted. Black next maintains that the circuit 

court erred in summarily dismissing her counterclaim in the civil suit. Finally, Black argues that 

the district court erred in refusing to vacate the judgment of possession, considering that the 

service and notice related to the summary proceedings for eviction were defective, and that the 

circuit court therefore erred in denying her appeal of the district court’s faulty possession 

judgment. We hold that none of Black’s arguments warrant reversal. 

 MCL 600.3204 provides, in pertinent part, as follows: 

 (1) A party may foreclose a mortgage by advertisement if all of the 

following circumstances exist: 

. . . 

 (b) An action or proceeding has not been instituted, at law, to recover the 

debt secured by the mortgage or any part of the mortgage or, if an action or 

proceeding has been instituted, either the action or proceeding has been 

discontinued or an execution on a judgment rendered in the action or proceeding 

has been returned unsatisfied, in whole or in part. 

 This statutory provision has been referred to as the “one-action rule,” and it reflects a 

legislative intent to force an election of remedies by a mortgagee with respect to a single debt, 

precluding simultaneous maintenance of a lawsuit on the debt and foreclosure by advertisement, 

 

4

 Again, the civil suit was actually comprised of two lower court docket numbers, and two 

separate appeals to this Court were filed; this Court consolidated those appeals. Citizens Bank v 

Black, unpublished order of the Court of Appeals, entered December 17, 2013 (Docket Nos. 

318981 and 318982). 
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and thereby avoiding double recovery on the same debt. Greenville Lafayette, LLC v Elgin State 

Bank, 296 Mich App 284, 289-292; 818 NW2d 460 (2012). We are surprised that the bank 

ignored this long-established Michigan rule applicable to the recovery of debts secured by a lien 

or mortgage on real property, where it filed the civil suit and then within two weeks, with the suit 

pending, initiated the foreclosure. We question the bank’s assertion that it effectively 

“discontinued” the civil suit regarding the law-office note; there was no voluntary dismissal of 

the claim pertaining to this note. In the bank’s motion for summary disposition filed after the 

sheriff’s sale and the expiration of the statutory redemption period, the bank still sought a money 

judgment on the claim regarding the law-office note, “less appropriate offsets.”5

 

 Nevertheless, reversal is not merited in this case. In Kim v JPMorgan Chase Bank, NA, 

493 Mich 98; 825 NW2d 329 (2012), our Supreme Court addressed a violation of MCL 

600.3204 in conducting a foreclosure by advertisement.6

 The Kim Court held: 

 [W]e hold that defects or irregularities in a foreclosure proceeding result 

in a foreclosure that is voidable, not void ab initio. Because the Court of Appeals 

erred by holding to the contrary, we reverse that portion of its decision. We leave 

to the trial court the determination of whether, under the facts presented, the 

foreclosure sale of plaintiffs' property is voidable. In this regard, to set aside the 

foreclosure sale, plaintiffs must show that they were prejudiced by defendant's 

failure to comply with MCL 600.3204. To demonstrate such prejudice, they must 

show that they would have been in a better position to preserve their interest in 

the property absent defendant's noncompliance with the statute. [Id. at 115-116.] 

 In support, the Court cited Kuschinski v Equitable & Central Trust Co, 277 Mich 23; 268 

NW 797 (1936), wherein, as characterized by the Kim Court, a foreclosure was allowed to stand 

even though it had been conducted in violation of a court’s restraining order. Kim, 493 Mich at 

114-115. The Kim Court also relied on Feldman v Equitable Trust Co, 278 Mich 619, 624-625; 

270 NW 809 (1937), wherein the Supreme Court refused to invalidate a foreclosure because 

there was no harm to the homeowner, even though the foreclosure had been conducted absent the 

recording of all mortgage assignments. Kim, 493 Mich at 115. 

 Here, Black did not advance any arguments below, nor does she on appeal, asserting that 

she would have been in a better position to preserve her interest in the property absent the bank’s 

 

5

 This is not a situation in which the bank pursued foreclosure by advertisement and then after 

the foreclosure was fully completed filed suit in order to obtain a deficiency judgment, as 

permitted by MCL 600.3280. Indeed, there was a deficiency here of about $34,000, as claimed 

by the bank, but the circuit court refused to enter a deficiency judgment, as on offset, regarding 

the law-office note because of the bank’s failure to follow the proper procedure. 

6

 Rulings on motions for summary disposition are reviewed de novo on appeal, as well as matters 

of statutory interpretation and questions of law generally. Kim, 493 Mich at 105; Oakland Co Bd 

of Co Rd Comm’rs v Mich Prop & Cas Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 

(1998). 
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noncompliance with MCL 600.3204(1)(b).7

 Instead, Black argues that the rule or principle from 

Kim only applies where there was a defect in the foreclosure process itself, e.g., insufficient 

notice, and not to an “election of remedies” problem. We do not read Kim that narrowly. 

Indeed, as reflected above, the Court broadly observed that mortgagors “must show that they 

were prejudiced by . . . [a] failure to comply with MCL 600.3204.” Kim, 493 Mich at 115. And 

this case presents a failure to comply with MCL 600.3204. Furthermore, there was a defect or 

irregularity in the foreclosure process comparable to a notice problem, i.e., it should not have 

been commenced with the civil suit pending, just as the foreclosure proceeding in Kuschinski 

should not have been commenced because a TRO had been issued enjoining any foreclosure, and 

just as a foreclosure should not be pursued absent notice. In sum, a showing of prejudice was 

required, and it was not established. And the bank did not obtain a double recovery. In fact, the 

bank was not even made whole, given that the circuit court thwarted the bank’s effort to obtain a 

deficiency judgment. 

 Black argues that Greenville Lafayette dictates a different result. We disagree. In 

Greenville Lafayette, the plaintiff obtained a business loan from the defendant bank, which was 

secured by a mortgage on real property owned by the plaintiff, as well as being secured by two 

commercial guarantees. The loan matured, with the plaintiff owing a substantial outstanding 

balance, and, after attempts to renegotiate and extend the mortgage failed, the defendant bank 

sued the guarantors in court on the two commercial guaranties. With that action pending, the 

defendant bank initiated a foreclosure by advertisement by sending a notice informing the 

plaintiff of its intent to foreclose on the mortgage securing the loan. The plaintiff filed a 

complaint seeking an injunction to halt the pending sheriff’s sale, arguing that MCL 

600.3204(1)(b) (one-action rule) precluded the scheduled foreclosure sale in light of the lawsuit 

against the guarantors. The trial court granted summary disposition in favor of the defendant 

bank, finding that the legal action against the guarantors did not bar the foreclosure by 

advertisement under MCL 600.3204(1)(b). Greenville Lafayette, 296 Mich App at 285-286. 

 The plaintiff appealed the trial court’s order, and this Court reversed the court’s ruling, 

concluding that the foreclosure by advertisement violated the one-action rule. Id. at 292. The 

focus of this Court’s opinion was entirely on whether the action against the guarantors and not 

the plaintiff itself qualified under the language in MCL 600.3204(1)(b) as “[a]n action . . . at 

law[] to recover the debt secured by the mortgage[.]” Greenville Lafayette, 296 Mich App at 

288-292. In ruling that MCL 600.3204(1)(b) was implicated, the panel agreed with the “plaintiff 

that the plain language of the mortgage contract specifically include[d] guaranties in the 

indebtedness secured by the mortgage.” Id. at 291. The Court then held: 

 On the basis of the plain language of the mortgage and the plain language 

of the statute, we conclude that the trial court erred by granting summary 

disposition to defendant. In this case, the action that was instituted against the 

guarantors constituted an action to recover the debt secured by the mortgage 

because the mortgage specifically included the guaranties as part of the debt 

 

7

 The circuit court effectively found that, under Kim, Black had not established any prejudice. 
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secured by the mortgage. Consequently, defendant's foreclosure by advertisement 

was invalid pursuant to the one-action rule . . . . [Id. at 291-292.] 

 As gleaned by our discussion of Greenville Lafayette, the Court did not even address the 

question whether a completed foreclosure sale conducted in violation of MCL 600.3204(1)(b) is 

voidable or void ab initio. Given the procedural posture of the case, which is entirely different 

than the posture here, it is not even clear whether an actual sheriff’s sale took place in Greenville 

Lafayette before the matter was appealed to and decided by this Court. Moreover, Kim was 

decided ten months later and clearly controls relative to a violation of MCL 600.3204. Black’s 

reliance on Greenville Lafayette is unavailing. 

 Additionally, this Court’s opinion in Bryan v JPMorgan Chase Bank, 304 Mich App 708; 

848 NW2d 482 (2014), creates an obstacle to Black’s position. The Bryan panel held that a 

mortgagor lacks standing to challenge a foreclosure after expiration of the redemption period, 

considering that, upon expiration, all rights in and title to property are extinguished under MCL 

600.3236. Id. at 713-715. While Black challenged the foreclosure prior to the sheriff’s sale and 

expiration of the redemption period, she never presented an argument under the one-action rule 

during that stage of the proceedings, first raising the subject following the expiration of the 

redemption period. Accordingly, Bryan would indicate that she lacked standing to argue the 

one-action rule. We note the circuit court’s understandable consternation that Black had not 

raised any concerns about the one-action rule during the redemption period, nor during the TRO 

proceedings with respect and prior to the scheduled sheriff’s sale. 

 In a supplemental brief filed by Black pursuant to a motion granted by this panel 

following oral argument, Black argues that Bryan “has nothing to do with this appeal.” Black 

maintains that Bryan is not applicable given that it did not concern redemption following a 

violation of the one-action rule. Bryan addressed a claim that the defendant bank had failed to 

record its mortgage interest prior to the foreclosure sale as required by MCL 600.3204(3). 

Bryan, 304 Mich App at 711. As she did Kim, Black reads Bryan much too narrowly, as the 

clear language in Bryan stands for the broad proposition that failure to challenge an alleged 

faulty foreclosure sale within the applicable redemption period – for whatever reason – deprives 

a party of standing to later challenge that sale. Bryan simply cannot be read to have no 

application to a violation of MCL 600.3204(1)(b). 

 Black further contends that if we affirm the lower court rulings, “the net effect will be to 

permit a bank to simultaneously prosecute a collections action coupled with a mortgage 

foreclosure and impose on the mortgagor the burden of proving any prejudice which results – 

despite the clear language of MCL 600.3204(1)(b).” We again disagree. In most instances, a 

mortgagor will challenge during the course of the proceedings any attempt by a mortgagee to 

seek both foreclosure and a legal action on the debt, and if the mortgagee has indeed violated the 

one-action rule, nothing in this opinion can or should be construed as precluding the entry of an 

injunction to stop the violation, with the court forcing the mortgagee to make an election of 

remedies consistent with Greenville Lafayette. Our opinion does not provide any support 

whatsoever for the proposition that the mortgagee, in our example, could defeat a request for an 

injunction by arguing that both remedies can be pursued absent a showing of prejudice. As in 

Kim and Bryan, we are addressing a fact pattern where the foreclosure sale had been completed 

and then the mortgagor challenged the sale, and, in that instance, Kim requires a showing of 
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prejudice to void the sale and Bryan requires a timely challenge. And ultimately a double 

recovery will likely never be made.8

 

 With respect to the language in the sheriff’s deed inaccurately indicating that no legal suit 

had been instituted on the debt, which matter is necessarily intertwined with the issue concerning 

the one-action rule, the error again involves a defect or irregularity in the foreclosure proceeding, 

and Black has not established the requisite prejudice. And Black runs afoul, once again, of the 

standing requirement in Bryan. Because of the inaccurate recitation in the sheriff’s deed, Black 

claims a violation of MCL 566.101, which provides: 

 Every conveyance of any estate or interest in lands, or the rents and profits 

of lands, and every charge upon lands or upon the rents and profits thereof, made 

or created with intent to defraud prior or subsequent purchasers for a valuable 

consideration, of the same lands, rents or profits, as against such purchasers, shall 

be void. 

 Here, there was no evidence of an intent to defraud anyone by way of the sheriff’s deed. 

Moreover, no party was defrauded, as the bank itself was the purchaser of the property at the 

sheriff’s sale, and Black was fully aware of the foreclosure proceeding, the sheriff’s sale, and the 

civil suit on the law-office note. And certainly no party was defrauded for a valuable 

consideration. The bank did not receive a double recovery on the note, nor even a full 

compensatory recovery, despite Black’s indisputable default on the law-office note. MCL 

566.101 has no application in this case. 

 Black next argues that the circuit court erred in summarily dismissing the counts in her 

counterclaim. As part of the bank’s motion for summary disposition under MCR 2.116(C)(10), 

it addressed each of the tort, contract, and statutory claims alleged by Black, citing applicable 

authorities, providing abundant supporting documentary evidence, and engaging in the necessary 

legal analysis. In a response brief that is difficult at times to decipher, Black cursorily claimed 

that summary disposition was premature and that facts abounded. There was no attempt to couch 

any arguments in the context of the specific causes of action that Black had pled and there was 

no legal analysis or recitation of authorities relative to the causes of action. Black failed to 

specifically challenge or confront the precise arguments posed by the bank in favor of summary 

disposition. The circuit court was clearly frustrated with Black, stating that the bank’s arguments 

“are not even responded to,” that Black failed to counter with relevant supporting documentary 

evidence, and that Black’s claims “ma[d]e no sense.” On appeal, Black now presents some 

unpreserved arguments that provide a bit more particularity with respect to the causes of action. 

 

8

 If a mortgagee purchased foreclosed-upon property at a sheriff’s sale and also pursued and 

obtained a money judgment in a legal action on the same debt, and if the mortgagor did not 

challenge the foreclosure before expiration of the redemption period, the mortgagor would still 

generally have the ability to challenge the money judgment under MCR 2.612, arguing double 

recovery. 
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 We affirm the circuit court’s ruling summarily dismissing Black’s counterclaim, given 

that her response to the bank’s properly made and supported motion for summary disposition 

was woefully inadequate under MCR 2.116(G)(4), that many of her arguments on appeal were 

not preserved below, Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999), and 

that Black could not simply maintain below that summary disposition was premature without 

identifying a specific disputed issue, St Clair Med, PC v Borgiel, 270 Mich App 260, 271; 715 

NW2d 914 (2006). As to her speculative claim about the need for additional discovery, Black 

has failed to convince us that she stands a fair chance of uncovering factual support for her 

counterclaim. Caron v Cranbrook Ed Community, 298 Mich App 629, 645-646; 828 NW2d 99 

(2012). The counterclaim fails as a matter of law, and reversal is unwarranted. 

 Finally, Black argues that the district court erred by not vacating the possession 

judgment, where the bank failed to properly serve her with the summons and complaint to 

recover possession, depriving the court of personal jurisdiction over Black, and where she was 

not given proper notice of the eviction hearing on the complaint. 

 We first note that Black did not raise the issue of personal jurisdiction in her first motion 

before the district court; therefore, the issue was waived. Electrolines, Inc v Prudential 

Assurance Co, Ltd, 260 Mich App 144, 163-164; 677 NW2d 874 (2003). Moreover, assuming 

that the bank failed to comply with all the specific requirements of MCR 4.201(D) regarding the 

service of process in summary proceedings to recover the possession of premises, the failure, in 

and of itself, is not grounds for setting aside the possession judgment. Unless specifically 

provided otherwise in MCR 4.201 or MCL 600.5701 et seq., the general Michigan Court Rules 

govern. MCR 4.201(A). And MCR 2.105(J)(3) states that “[a]n action shall not be dismissed for 

improper service of process unless the service failed to inform the defendant of the action within 

the time provided in these rules for service.” The record reflected that Black acknowledged 

receipt of an e-mail that contained the summons and a tentative hearing date. While this would 

not be sufficient to comport with the requirements of MCR 4.201(D), it established that Black 

was fully aware of the eviction action and hearing. Additionally, and importantly, the district 

court ultimately entertained and addressed extensive arguments on the merits and substance of 

Black’s foreclosure and eviction challenges, issuing a fairly-detailed opinion in rejecting those 

arguments. It is clear to us, as it was to the circuit and district court judges involved in these 

cases, that delaying and stalling efforts, needless litigation, and gamesmanship were all 

employed by Black in her attempt to fend of the inevitable foreclosure and eviction. Black was 

well aware of the unfolding eviction events, and none of her arguments changed the plain and 

undisputed facts that she had defaulted on the law-office note and mortgage, that Black did not 

redeem the property following foreclosure, and that the bank was entitled to a judgment of 

possession. Reversal is unwarranted. 

 Affirmed. Having fully prevailed on appeal, the bank is awarded taxable costs pursuant 

to MCR 7.219. 

/s/ Amy Ronayne Krause 

/s/ William B. Murphy 

/s/ Deborah A. Servitto