If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

US BANK TRUST NATIONAL ASSOCIATION, 

AS TRUSTEE OF AMERICAN HOMEOWNER 

PRESERVATION TRUST SERIES 2014B,

Plaintiff-Appellant,

UNPUBLISHED

November 17, 2022

v No. 358213

Oakland Circuit Court

OAKLAND COUNTY and OAKLAND COUNTY 

TREASURER,

LC No. 2021-185542-CZ

Defendants-Appellees.

Before: K. F. KELLY, P.J., and LETICA and RICK, JJ.

PER CURIAM.

Plaintiff appeals as of right the order granting partial summary disposition in favor of

defendants under MCR 2.116(C)(7) (statute of limitations) and (C)(8) (failure to state a claim). 

On appeal, plaintiff argues that the trial court erred by concluding that its claim was untimely and 

by holding that the decision in Rafaeli, LLC v Oakland County, 505 Mich 429; 952 NW2d 434 

(2020), applied prospectively. Plaintiff further argues the trial court erred by considering 

inadmissible evidence. Because we conclude that plaintiff’s claim was barred by the statute of 

limitations, we affirm.

I. BACKGROUND

In May 2016, plaintiff was assigned a mortgage for real property owned in Oakland County 

(the Property). The mortgage had previously been granted to a different corporation and assigned 

one other entity before it was assigned to plaintiff. The Property was tax-delinquent for the tax 

years 2010, 2011, and 2012.

The Property was foreclosed and sold at a public auction. Subsequently, a deed for the 

Property was issued to the purchaser on September 26, 2014. Defendants retained the full sale 

proceeds, including the sums in excess of the delinquent taxes actually owed.
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On January 6, 2021, plaintiff filed a complaint, asserting that, by retaining the excess sales 

proceeds, defendants took plaintiff’s property for public use without the payment of compensation 

required by the Fifth Amendment of the United States Constitution and Article 10, § 2 of the 

Michigan Constitution. Plaintiff asserted that it was entitled to recover the excess sales proceeds 

from the sale of the Property from defendants.

In February 2021, defendants filed a motion for summary disposition, arguing that 

plaintiff’s claim was barred by the six-year statute of limitations. Specifically, defendants argued 

that plaintiff’s property right—the mortgage—was extinguished in the foreclosure on March 31, 

2014, under MCL 211.78k(5)(c). Therefore, plaintiff’s complaint was untimely because it was 

filed more than six years after the claim accrued. Defendants also argued that plaintiff, as a 

lienholder, did not have a property right in the surplus proceeds from a tax auction, asserting that 

Rafaeli stood for the proposition that only the “former property owner” had such a right. 

Additionally, defendants argued that Rafaeli should only apply prospectively for surplus proceeds 

resulting after July 17, 2020.

In response, plaintiff argued that summary disposition was improper. Plaintiff complained 

that defendants failed to support their motion with admissible evidence, asserting that the 

documents attached to defendants’ motion were inadmissible hearsay. Plaintiff argued that, under 

MCL 211.78k(5)(c), the foreclosure did not extinguish its rights granted to it by the mortgage; 

rather, it extinguished only the lien created by the mortgage. Plaintiff asserted that its claim did 

not accrue until the sale of the real property on September 26, 2014. Relying on Rafaeli, Plaintiff 

also argued that it was entitled to the surplus sale proceeds, which was “a separate property right 

that survives the foreclosure process,” as a result of the assignment of the mortgage.

The trial court issued an order granting defendant’s motion for summary disposition under 

MCR 2.116(C)(7) and (8). The court held that “[t]he general six year statute of limitations 

applie[d] to taking actions” and concluded that plaintiff’s claim was time-barred because plaintiff’s 

“alleged right to the surplus arose only through its Mortgage, which was extinguished on March 

31, 2014,” and plaintiff had filed its claim more than six years after the foreclosure. The court 

further concluded that the Rafaeli decision applied only prospectively as of July 17, 2020.

This appeal followed.

II. STATUTE OF LIMITATIONS

Plaintiff argues that the trial court erred by concluding that its claim accrued on 

September 4, 2013, and by granting summary disposition under MCR 2.116(C)(7) in favor of 

defendants. We disagree.

A trial court’s decision on a motion for summary disposition is reviewed de novo. Dell v 

Citizens Ins Co of America, 312 Mich App 734, 739; 880 NW2d 280 (2015). In reviewing a trial 

court’s decision that a claim is time-barred under MCR 2.116(C)(7),

[t]his Court must accept all well-pleaded factual allegations as true and construe 

them in favor of the plaintiff, unless other evidence contradicts them. If any 

affidavits, depositions, admissions, or other documentary evidence are submitted, 

the court must consider them to determine whether there is a genuine issue of 
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material fact. If no facts are in dispute, and if reasonable minds could not differ 

regarding the legal effect of those facts, the question whether the claim is barred is 

an issue of law for the court. However, if a question of fact exists to the extent that 

factual development could provide a basis for recovery, dismissal is inappropriate. 

[Hutchinson v Ingham Co Health Dep’t, 328 Mich App 108, 123; 935 NW2d 612 

(2019) (quotation marks and citations omitted).]

For claims stemming from a party’s former property ownership based on their 

constitutional right to just compensation, the applicable statute of limitations is six years. Hart v 

Detroit, 416 Mich 488, 503; 331 NW2d 438 (1982); see MCL 600.5813. Plaintiff does not dispute 

that the applicable statute of limitations is six years.

Plaintiff asserts that its claim did not accrue until title to the Property was transferred by 

the issuance of a deed on September 26, 2014. On the other hand, appellees argue that any alleged 

claim by appellant accrued as of March 31, 2014, when the foreclosure judgment became final and 

appellant’s lien was extinguished. Plaintiff did not file its claim until January 6, 2021.

We conclude that the trial court properly granted summary disposition under 

MCR 2.116(C)(7) in favor of defendants because the claim was untimely. Appellant’s claim 

accrued when it suffered harm, not when it was damaged. See MCL 600.5827 (“The claim accrues 

at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim 

accrues at the time the wrong upon which the claim is based was done regardless of the time when 

damage results.”). Under the General Property Tax Act, MCL 211.1 et seq., if the property is not 

redeemed by March 31 of the year of foreclosure, all liens are extinguished, and title is vested in 

the foreclosing governmental unit. MCL 211.78k(5)(c). Therefore, any alleged claim for a taking 

accrued when the foreclosure judgment became final and appellant’s lien was extinguished on 

March 31, 2014. During oral arguments, appellant, for the first time below or on appeal, asserted 

that Administrative Order No. 2020-18, 505 Mich clxi, clxi (2020), which tolled the statutory 

limitation periods as a result of the COIVD-19 pandemic from March 10, 2020, until June 20, 

2020, affected the timeliness of their complaint. Considering AO 2020-18, appellant was required 

to file their claim by July 13, 2020, and their January 6, 2021 claim was time barred. Having 

decided that summary disposition was proper under MCR 2.116(C)(7), we need not decide if 

summary disposition was also proper under MCR 2.116(C)(8) or address plaintiff’s arguments 

regarding the application of Rafaeli, LLC, 505 Mich at 429.

1

Affirmed.

/s/ Kirsten Frank Kelly 

/s/ Anica Letica 

/s/ Michelle M. Rick 

 

1 We note that this Court recently held in Proctor v Saginaw Co Bd of Comm’rs, ___ Mich App___, 

___; ___ NW2d ___ (2022) (Docket No. 349557); slip op at 13, that Rafaeli, LLC, 505 Mich 

at 429, applies retroactively “to pending cases . . . in which a challenge has been raised and 

preserved.”