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### STATE OF MICHIGAN

COURT OF APPEALS

BANK OF NEW YORK MELLON, f/k/a BANK OF NEW YORK, as Trustee for the Certificate Holders of CWABS, INC., ASSET-BACKED CERTIFICATES SERIES 2003-3,

Plaintiff-Appellant, UNPUBLISHED December 23, 2014

v No. 316521 Wayne Circuit Court JAAFAR K. JAAFAR and BADIA JAAFAR, LC No. 11-008424-CH

Defendants-Appellees.

Before: M URRAY , P.J., and S AAD and H OEKSTRA , JJ.

P ER C URIAM

. Plaintiff appeals the trial court’s order that enforced a settlement agreement between the parties. For the reasons stated below, we affirm.

I. FACTS AND PROCEDURAL HISTORY

On July 13, 2011, plaintiff Bank of New York Mellon (“BNY”) filed a complaint against defendants for judicial foreclosur e of real property located in Livonia. At the time of the mortgage default, defendant owed a princi pal balance of $274,686.33. In October 2011, the parties started to negotiate a settlement. Both parties agree that defendants offered to settle the litigation for $190,000, and then $260,000, but BNY rejected each sum. Thereafter, the parties’ attorneys exchanged several e-mail messages. On January 20, 2012, BNY’s counsel sent the following e-mail:

I received correspondence from my clie nt regarding your client’s offer. My client has advised me that the offe r was reviewed and is still too low. Would your client be willing to increase the offer by $5K? Please advise me of your client’s decision. [Emphasis added.]

On January 21, 2012, defendants’ counsel replie d, by e-mail, with a simple “yes.” On January 24, 2012, defendants’ counsel sent another e-mail to BNY’s attorney in which he inquired: “Have you confirmed the 265k my client wants to settle this [sic].” On February 7, 2012, defendants’ counsel sent another e-mail, aski ng: “Any word on our counter offer?” In reply to this e-mail, plain tiff’s counsel sent the follow ing message on February 8, 2012:-2- I sent you’re [sic] confirmation that your client would increase his offer by $5K. At this time I’m still waiting to hear back from my client.

After this e-mail, the parties apparently con tinued to have “settlement discussions.” On September 12, 2012, BNY filed a motion for summary disposition to foreclose on the mortgage. Defendants countered with a motion to enforce a purported settlement agreement between the parties. Relying on the e-mail exchanges, defend ants argued that BNY had agreed to settle the case for $265,000. Specifically, defe ndants stressed that: (1) they originally offered to pay BNY $260,000; (2) BNY made a counteroffer for $265,000; and (3) defendants promptly accepted this counteroffer on January 21, 2012. At the hearing on BNY’s motion, defendants’ lawyer told the court that they provided several appraisals on the property and proof of funds for the settlement at BNY’s request, and BNY did not refute this asse rtion at the hearing or at any time thereafter.

BNY asserted that a settlement agreement did not exist because neither party had had a meeting of the minds, or provided consideration for the agreement. Th e trial court rejected BNY’s argument, and found that the parties had entered into a bindi ng settlement agreement. It accordingly issued an order in December 2012, which granted defendant’s motion to enforce settlement. 1

On appeal, 2 BNY argues the trial court erred when it found the ex istence of a settlement agreement. It also asserts that, even assumi ng an agreement exists, any settlement agreement between it and defendants cannot be valid becaus e the agreement would not comply with the requirements of MCR 2.507(G) and MCL 566.132.

II. STANDARD OF REVIEW

A settlement agreement is in the nature of a contract. Kloian v Domino’s Pizza LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006). The existe nce and interpretation of a contract are questions of law that are reviewed de novo, 3 as are matters of statutory interpretation. Titan Ins Co v Hyten, 491 Mich 547, 553; 817 NW2d 562 (2012). Ho wever, a trial court’s decision to enforce a settlement agreem ent is reviewed for an abuse of discretion. Groulx v Carlson, 176 Mich App 484, 493; 440 NW2d 644 (1989).

1 The trial court subsequently de nied plaintiff’s motion to vacate the order of December 3, 2012, based on a finding that it was an untimely motio n for reconsideration that lacked merit.

2 Our Court initially denied plaintiff’s delayed a pplication for leave to a ppeal the trial court’s order. Bank of New York Mellon v Jaafar, unpublished order of the Court of Appeals, entered November 21, 2013 (Docket No. 316521). The Michig an Supreme Court, in lieu of granting leave to appeal, remanded the action to our C ourt for consideration as on leave granted, and offered no further instruction on th e disposition of this case. Bank of New York Mellon v Jaafar, 495 Mich 991; 845 NW2d 493 (2014).

3 Kloian , 273 Mich App at 452.-3- The primary goal of statutory interpretation is to discern and give effect to the intent of the Legislature as expr essed in the actual wo rds of the statute. Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002). The words of a statute are to be given their plain and ordinary meaning. Id. Only where the statutory language is ambiguous should a court look outside the statute to ascertai n the Legislature’s intent. Id

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III. ANALYSIS

A. THE EXISTENCE OF A SETTLEMENT AGREEMENT

1. BNY’S ASSENT

An agreement to settle a pending lawsuit is in the nature of a contract and is governed by the legal principles applicable to the cons truction and interpreta tion of contracts. Kloian

, 273 Mich App at 452. It is axiomatic that before a contract can be completed there must be an offer and an acceptance. Id. at 452-453. An “offer” is “the manifesta tion of willingness to enter into a bargain, so made as to justify another person in understanding that his asse nt to that bargain is invited and will conclude it.” Eerdmans v Maki, 226 Mich App 360, 364; 573 NW2d 329 (1997). “Acceptance must be unambiguous and in strict conformance with the offer.” Id.

Here, BNY wrongly says that the trial court er red when it enforced th e alleged settlement agreement because BNY did not assent to the se ttlement agreement. As noted, after defendants offered to pay BNY $260,000 to settle this case, the parties exchanged emails in which BNY’s attorney stated that the offer was “still to low” and asked defendants’ lawyer if his client would be “willing to increase the o ffer by $5 K?”—i.e., to $265,000. B NY’s counsel added: “Please advise me of your client’s decision.”

The only possible interpretation of these statements is that BNY presented a counteroffer for settlement of a sum certain ($265,000) and e xplicitly asked for a “decision” from defendants as to that counteroffer. In response to BNY’s e- mail, defense counsel replied: “yes.” As such, defendants accepted BNY’s counteroffer to settle the case at $265,000. Accordingly, BNY manifested its “willingness to enter into a barg ain, so made as to ju stify [defendants] in understanding that [their] assent to that bargain is invited and will conclude it.” Eerdmans , 226 Mich App at 364. BNY’s claims that it did no t assent to the agreem ent are without merit—it instigated the agreement by making the $26 5,000 counteroffer, which was unequivocally accepted.

2. MEETING OF THE MINDS AND CONSIDERATION

A contract requires mutual as sent or a meeting of the mi nds on all the essential terms, 4 which can be found from performance a nd acquiescence in that performance. Sanchez v Eagle Alloy Inc, 254 Mich App 651, 665-666; 658 NW2d 510 (2003). An objective standard is used to judge whether there was a meeting of the minds, a nd the court looks “to the express words of the

4 Eerdmans , 226 Mich App at 364.-4- parties and their visible acts, not their subjective states of mind.” Calhoun Co v Blue Cross Blue Shield Mich, 297 Mich App 1, 13; 824 NW2d 202 (2012).

Here, BNY unconvincingly argues that the se ttlement agreement did not really exist, because the emails that supposedly created the ag reement did not involve an explicit contract to dismiss any of BNY’s claims or discharge its mo rtgage as consideration. Because the agreement was made in the context of settlement negotia tions, the dismissal of BNY’s claims and its discharge of the mortgage were implicit in the offer and acceptance of th e agreement—they were the objects of the parties’ agreement to settle a lawsuit that explicitly involved BNY’s claims (as the plaintiff), and its mortgage on the property.

BNY’s conduct after the email exchange also belies its argument that a settlement agreement did not exist. At trial, defendants’ lawyer noted that defendants complied with BNY’s request to have the property appraised and show proof of funds for th e settlement. If an agreement did not exist, BNY woul d not have asked defendants to engage in either of these activities. And, tellingly, BNY did not deny that the parties engaged in these activities, which demonstrate that a settlement had been reached.

B. MCR 2.507(G) AND MCL 566.132

1. MCR 2.507(G)

“A contract for the settlement of pending litigation that fulfills the requirements of contract principles will not be enforced unless the agreement also satisfies the requirements of [MCR 2.507(G)].” Kloian, 273 Mich App at 456. MCR 2.507(G) provides that an agreement between litigants “is not binding unless it was made in open court, or unless evidence of the agreement is in writing, subscribed by the party against whom the agreement is offered or by that party’s attorney .” (Emphasis added.)

Here, BNY says that the settlement agreem ent between the parties did not satisfy the writing requirements of MCR 2.507(G), 5 because BNY did not “sub scribe” to any e-mail message evidencing the essential elements of a sett lement agreement between the parties. This is simply a reiteration of BNY’s ar gument that the settlement agreement does not exist. It does not demonstrate that the agreement did not satisfy the mandates of MCR 2.507(G).

Again, MCR 2.507(G) requires that “evidence” of the agreement be in writing, and subscribed by the party against whom the agreement is offered—here, BNY. As noted, BNY’s

5 The language of this court rule originally appeared in MCR 2.507(H). At the time this case was decided, the language appeared in MCR 2.507(G ). When MCR 2.507(G) was amended in October 2014, former subsection (G) was moved to subsection (F), but the text of the rule was not changed. All references to this rule in this op inion refer to MCR 2.507(G). The parties do not dispute that an e-mail can sa tisfy the writing requirement of MCR 2.507(G). Similarly, the parties do not seriously dispute that the act of typing one’s na me at the end of an email constitutes “subscribing” to its content. See Kloian, 273 Mich App at 458-459.-5- attorney’s email, which rejected defendants’ offer to settle at $260,000 and suggests $265,000 as a counteroffer, constituted “evidence” of the settlement agreement under MCR 2.507(G). BNY’s attorney’s email is also electronically signed at the bottom by the attorney, and thus satisfies MCR 2.507(G)’s mandate that the “writi ng” evidencing the agreement be “subscribed” to by BNY or its attorney. 6

Accordingly, the parties entered into a valid settlement agreement via an email exchange, and the settlement agreement complied with the requirements of MCR 2.507(G).

2. MCL 566.132

MCL 566.132, which codifies the statute of frauds, provides in relevant part:

(2) An action shall not be brought against a financial institution to enforce any of the following promises or commitme nts of the financial institution unless the promise or commitment is in writing and signed with an authorized signature by the financial institution:

(a) A promise or commitment to lend money, grant or extend credit, or make any other financial accommodation

. (b) A promise or commitment to renew, extend, modify, or permit a delay in repayment or performance of a loan, extension of credit, or other financial accommodation.

(c) A promise or commitment to waive a provision of a loan, extension of credit, or other financial accommodation. [Emphasis added.]

Accordingly, by its plain language, MCL 566.132( 2) prohibits a plaint iff from bringing an action “against a financial in stitution” in the scenarios enumer ated in subsections (a) through (c). The Legislature adopted MCL 566.132(2) in part to protect:

6 We note the Kloian involved a similar argument over email exchanges and MCR 2.507(G), and our interpretation of the rule follows Kloian ’s approach: The original settlement agreem ent, embodied in the March 18, 2005 email messages, satisfies the subscription requ irement of MCR [2.507(G)]. The March 18, 2005, e-mail containing the terms of the settlement offer was subscribed by plaintiff’s at torney because he typed or appended his name at the end of the e-mail message. Likewise, the March 18, 2005, e-mail from defendant’s attorney containing the acceptance of the offer was subscribed because it, too, contained defendant’s atto rney’s name at the end of the e-mail message. [ Kloian , 273 Mich App at 459 (emphasis added).]-6- financial institutions from potentially fraudulent or spurious claims by disgruntled borrowers. See 1992 PA 245. To that end, the Le gislature provided that no one may bring an “action” against “a financial institution” if the action seeks to “enforce” a promise or commitment by the financial institution “unless the promise or commitment is in writing and signed with an authorized signature by the financial institution.” MCL 566.132(2). [ Huntington Nat’l Bank v Daniel J Aronoff Living Trust, 305 Mich App 496, 509; 853 NW2d 481 (2014).]

In this case, BNY incorrectly contends that the settlement agreement did not comply with MCL 566.132(2) and is thus unenforceable. The pl ain language of MLC 566.132( 2) states that it does not apply to this lawsuit. Here, BNY—the financial institution—is the plaintiff, and launched the action. Defendants did not bring any action against BNY, and thus that MCL 566.132(2) is inapplicable. Nor is defendant a “disgruntled borrower” br inging a “potentially fraudulent or spurious claim” against BNY—BN Y brought suit, and defenda nts are attempting to settle the suit—by providing BNY with close to the full amount of money that they owe on the mortgage. 7

Were we nonetheless to accept that MCL 566.132(2) is applicable to this suit, the types of promises the statute lists as unenforceable absent a writing do not encompass the type of promise defendants seek to enforce. Again, defe ndants do not seek to enforce a promise to: (1) “lend money, grant or extend credit or make any other financial accommodation” 8 ; (2) “renew, extend, modify, or permit a delay in repayment or performance of a loan, extension of credit, or other financial accommodation”; or (3) “waive a provision of a loan , extension of credit, or other financial accommodation.” MCL 566.132 is therefor e inapplicable to this lawsuit and BNY’s arguments to the contrary are without merit.

7 Again, at the time of the default, the out standing principal balance on the mortgage was $274,686.33. The settlement agreement provides BNY with $265,000.

8 BNY argues that the settlement agreement cons titutes a “financial accommodation,” but this argument is unconvincing. Noting that MCL 566.132 does not define “financial accommodation,” our Court has held that “fin ancial accommodation” can encompass an agreement to delay a foreclosure sale and an agreement to temporarily refrain from seizing collateral. Barclae v Zarb, 300 Mich App 455, 469-470; 834 NW2d 100 (2013). We do not think that a settlement agreement is similar to eith er of these arrangements. A contract to delay a foreclosure sale or temporarily refrain from seizing collateral usually benefits only one party— the debtor. By contrast, a settlement agreement, which by definition is a compromise of a disputed claim, always provides benefit to both the creditor and debtor. Accordingly, the term “financial accommodation” as used in MCL 566.132(2) does not encompass the settlement agreement at issue in this case.-7- Affirmed.

/s/ Henry William Saad /s/ Joel P. Hoekstra