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### STATE OF MICHIGAN

COURT OF APPEALS

BANK OF NEW YORK MELLON, formerly known as BANK OF NEW YORK AS TRUSTEE,

Plaintiff-Appellant, UNPUBLISHED September 22, 2015

v No. 321840 Wayne Circuit Court ROBERT L. CARMACK, LC No. 13-013058-AV

Defendant-Appellee.

Before: K.F. K ELLY , P.J., and C AVANAGH and S AAD , JJ.

P ER C URIAM

.
Plaintiff appeals by leave granted a circuit court order rever sing the district court’s judgment of possession entered in favor of plaintiff, and reman ding this matter to the district
court for an eviction trial. We reverse the circuit court and reinstate the judgment of possession entered by the district cour t in plaintiff’s favor.

This litigation follows a forecl osure action that was challeng ed by defendant, Robert Carmack, in federal court, as explained by our Sixth Circuit Co urt of Appeals:

In October 2001, Carmack obtained a mortgage loan from Country wide Home Loans (Countrywide or Lende r) to finance his purchase of p roperty in Woodhaven, Michigan. He executed a promissory note in the amou nt of $348,000 and granted a mortgage against the property to Mortgag e Electronic Registration Systems (MERS) in its capacity as “nominee for Len der and Lender’s successors and assigns.” The mortgage granted MERS, i ts successors and assigns the power of sale as to the property for the purpos e of securing the loan’s repayment. In January 2002, the mortgage was recorded w ith the Wayne County Register of Deeds.

Thereafter, the note was transf erred to a securitized trust na med CWALT,
Inc. Alternative Loan Trust 2005–J 12 Mortgage Pass–Through Cert ificates, Series 2005–J12 (the “CWALT Trust”), which is governed by a pooling an d serving agreement. In October 2009, MERS, in its capacity as nominee f or “Lender and Lender’s successors and assigns,” assigned the mortgage to The Bank of New York Mellon (“BNYM”), which accepted the mortgage in its role a s trustee for-2- the CWALT Trust. In November 2009, this assignment was recorde d with the Wayne County Register of Deeds.

Meanwhile, Carmack defaulted on his loan payments. BNYM issue d a notice of mortgage foreclosure sale by advertisement. On Septe mber 7, 2011, the property was sold at a sheriff’s sale, at which BNYM purchased the property with a credit bid of $503,456.08. Later that month, the sheriff's de ed was recorded with the Wayne County Register of Deeds.

In March 2012, Carmack filed this action in Michigan state cou rt against BNYM, as well as his original lender, Countrywide, and the loan servicer, Bank of America (collectively, Defendants). He asserted a wrongful foreclosure claim against BNYM, seeking a declaration that the assignment of the mortgage and
sheriff’s deed are void ab initio , as well as an order setting aside the foreclosure sale and vesting title in his favor. Defendants removed the ca se to federal court on diversity grounds. In June 2012, the district court granted Defendants’ motion to dismiss, concluding that, beca use Carmack failed to redeem h is property within the statutory redemption period a nd his allegations do not fall within the clear showing of fraud or irregularity exception under Michigan law, he failed to allege a plausible claim that the foreclosure sale should be set aside

. Carmack v. The Bank of N.Y. Mellon , No. 12-cv-11669, 2012 WL 2389863 (E.D. Mich. June 25, 2012). Carmack timely appealed [to the United States Court of Appeals for the Sixth Circuit]. [ Carmack v Bank of New York Mellon , 534 F Appx 508, 509-510 (CA 6, 2013) (footnote omitted).]

The Sixth Circuit affirmed the district court’s holding, reason ing that “Carmack’s claims challenging the mortgage assignment [to plaintiff], which are h is grounds for alleging fraud or irregularity in the foreclosure- by-advertisement process, are w ithout merit.” Id. at 513.

Thereafter, plaintiff instituted summary proceedings in the Th irty-Third District Court seeking a judgment of possession for the subject property. Fol lowing a hearing on the matter, the district court granted a j udgment of possession in plaintif f’s favor, holding that plaintiff acquired a valid Sheriff’s Deed, the redemption period expired, and defendant fully litigated his challenges to the foreclosur e in the federal court.

Defendant appealed the district court’s decision to the circui t court. Defendant argued that plaintiff was not the foreclosing entity; rather, Bank of America was the foreclosing entity, but it was never assigned the mor tgage as required under MCL 60 0.3204(3). Plaintiff was assigned the mortgage, but the m andatory written notice of fore closure served on defendant pursuant to MCL 600.3205a stated that the foreclosing party was “BAC Home Loans Servicing, L.P.,” not plaintiff. Thus, def endant argued, only BAC Home Lo ans Servicing, which became Bank of America, could complete the foreclosure and only Bank o f America had standing to evict him from the property following the “fake foreclosure.” Defendant also argued that he had standing to raise these claims challenging the validity of the foreclosure sale in this summary proceeding even though the redemption period expired. See Reid v Rylander , 270 Mich 263, 267; 258 NW 630 (1935). And res j udicata did not bar his claim s, defendant argued, because MCL 600.3205a(5) states that a cha llenge to the notice provided by the foreclosing entity must-3- be brought in the circuit court for the county where subject pr operty is located, not in the federal

court.

Plaintiff argued that, under MCL 600.3204, if there is a chang e in mortgagee after the notice was provided to defendant, there must be an assignment b y the time of the sale which occurred in this case. Here, BAC Home Loans Servicing, which b ecame Bank of America, was the loan servicer for Mortgage Electronic Registration Systems, Inc., the holder of the mortgage. But before the sheriff’s sale, the mortgage was assigned from M ERS to plaintiff; thus, there was no statutory violation. In any case, plaintiff argued, res jud icata applied to bar all of defendant’s challenges to the foreclosure because any such issues were, or could have been, litigated in the federal court. Moreover, plaintiff argued, the issues defendan t raises on appeal were not raised in the court presiding over the summary proceeding; thus, they were not preserved.

The circuit court agreed with d efendant, holding that it was u nclear whether he received proper notice under MCL 600.3205a because the letter did not st ate that plaintiff was the foreclosing entity. Further, pl aintiff failed to show the requ ired chain of title as set forth in MCL 600.3204. That is, there were defic its in the foreclosure proc eeding. The circuit court also held that res judicata did not apply because these issues were not p reviously addressed and this was an eviction proceeding. Accordingly, the circuit court remanded t his matter to the district court for an eviction trial, which was to be limited to the issue whether the foreclosure notice on behalf of
BAC Home Loan Servi cing conformed to MCL 600.3200 et seq . This appeal followed.

Plaintiff argues that res judicata barred defendant from chall enging the validity of the foreclosure-by-advertisement i n this summary proceeding. We ag ree.

We review de novo as a question of law the applicability of re s judicata. Bryan v JPMorgan Chase Bank , 304 Mich App 708, 713; 848 NW2d 482 (2014). Where the origin al
action occurred in federal cour t, “[t]his Court must apply fede ral law in determining whether the doctrine of res judicata” bars a subsequent claim. Beyer v Verizon North, Inc , 270 Mich App 424, 428; 715 NW2d 328 (2006). But where, as here, a federal c ourt exercises diversity jurisdiction over a claim, “federal law incorporates the rules of preclusion applied by the State in which the rendering [federal] court sits.” Taylor v Sturgell , 553 US 880, 891 n 4; 128 S Ct 2161; 171 L Ed 2d 155 (2008). Thus, Michigan law determines the appl icability of res judicata.

As discussed in Bryan , 304 Mich App at 715:

“The doctrine of res judicata is intended to relieve parties o f the cost and vexation of multiple lawsuits, conserve judicial resources, and encourage reliance on adjudication, that is, to foster the finality of litigation. ” Begin v Mich Bell Tel
Co , 284 Mich App 581, 599; 773 NW2d 271 (2009), overruled on othe r grounds by Admire v Auto-Owners Ins, Co , 494 Mich 10; 831 NW2d 849 (2013).

Res judicata bars a subseque nt action between the same parties when the evidence or esse ntial facts are identical. A second action is barred when (1) the fir st action was decided on the m erits, (2) the matter contested in the second action was or could have-4- been resolved in the first, and (3) both actions involve the sa me parties or their privies.

Michigan courts have broadly applied the doctrine of res judicata. They have barred, not only claims already litigated, but every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not. [ Id. , quoting Dart v Dart , 460 Mich 573, 586; 597 NW2d 82 (1999).]

The Bryan Court further explained:

Similarly,

Collateral estoppel bars relitiga tion of an issue in a new acti on arising between the same parties or their privies when the earl ier proceeding resulted in a valid final judgment and the issue in question was actually and necessar ily determined in that prior proceeding. The doctrine bars r elitigation of issues when the parties had a full and fair opportunity to litigate those issue s in an
earlier action. A decision is f inal when all appeals have been
exhausted or when the time ava ilable for an appeal has passed. [ Id

. at 715-716, quoting Leahy v Orion Twp , 269 Mich App 527, 530; 711 NW2d 438 (2006) (citations omitted).]

An order of summary disposition has preclusive effect under res judicata so long as it constitutes
a final decision on the merits. See Washington v Sinai Hosp of Greater Detroit , 478 Mich 412, 417-416; 733 NW2d 755 (2007). Likewise, in federal court, summ ary judgment under FRCP 12(b)(6) can carry preclusive effect. See Heike v Central Mich Univ Bd of Trustees , 573 Fed Appx 476, 480 (CA 6, 2014).

In this case, as discussed abov e, defendant challenged numerou s aspects of the foreclosure by advertisement proceeding in the federal court. In particular, defendant challenged whether Michigan’s foreclosure by advertisement procedure was f ollowed, whether plaintiff was the proper foreclosing party, and whether the requisite chain o f title existed. These challenges
were considered in the federal courts and were deemed without m erit. In this summary proceeding, defendant again challenged the validity of the fore closure by advertisement procedure, but these issues were or could have been decided in the federal court action between the same parties. See Bryan , 304 Mich App at 715-716.

Defendant claims, however, that he could not have sought to en join the foreclosure under MCL 600.3205a(5) because the statute limited such actions to “t he circuit court for the county in which the mortgaged property is situated.” But defendant never disputed the fact that he was served notice of the foreclosure. MCL 600.3205a(5) provides th at a “borrower on whom notice is required to be served under this section who is not served” may bring an action to enjoin foreclosure. Thus, defendant’s r eliance on this argument is wi thout merit. Further, defendant never challenged removal of thi s action to the federal court pu rsuant to 28 USC 1447(c) on the-5- ground that he was entitled to injunctive relief. And while de fendant is correct that the validity of a foreclosure by advertisement sale may generally be tested in a summary proceeding “in so far as invalidity thereof appear s in the procedure,” in this ca se, the matter was already “tested” in
the federal courts. See Reid , 270 Mich at 267. Accordingly, w e conclude that res judicata and collateral estoppel bar defendant from challenging again the va lidity of the foreclosure by advertisement in this summary pro ceeding. By concluding otherw ise, the circuit court erred and that decision is reversed. In light of our dispositive holding , we need not consider plaintiff’s other argument on appeal.

We reverse the circuit court a nd reinstate the district court’ s judgment of possession in favor of plaintiff. We do not retain jurisdiction.

/s/ Kirsten Frank Kelly /s/ Mark J. Cavanagh /s/ Henry William Saad