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### STATE OF MICHIGAN

COURT OF APPEALS

MICHAEL J. BAKER a nd SUZIE C. BAKER,

Plaintiffs-Appellants, UNPUBLISHED August 18, 2015

v No. 321902
Washtenaw Circuit Court RESIDENTIAL FUNDING COMPANY, L.L.C., and ORLANS ASSOCIATES, P.C., LC No. 11-001260-CH

Defendants-Appellees.

Before: S AWYER , P.J., and M. J. K ELLY and S HAPIRO , JJ.

P ER C URIAM

.

Plaintiffs appeal from an order o f the circuit court denying t heir motion to reopen this case that had been administratively closed following an automat ic stay due to bankruptcy court proceedings. We affirm.

In 2006, plaintiffs gave a mortgage on their residence in Wash tenaw County in the amount of $937,500. That mortgage was subsequently assigned to defendant Residential Funding Company (RFC). Plaintiffs were unable to make their mo rtgage payments and in 2007, the property went into foreclosur e. RFC retained defendant Orl ans Associates to represent them in the foreclosure process and the subsequent eviction proceedi ngs. A sheriff’s sale was conducted in February 2007 and plaintiffs were unable to redeem the property by the February 2008 deadline. Following the expiration of the redemption peri od, RFC filed an action in district court for eviction to gain possession of the property. This ul timately resulted in plaintiffs entering into a consent judgment of eviction. Meanwhile, plain tiffs had filed for bankruptcy in 2008 under Chapter 7, which was concluded in August 2008.

Plaintiffs filed an action under the Michigan Consumer Protect ion Act. Summary disposition in that case was granted in favor of the defendants , which decision was upheld on appeal. See Baker v Homecomings Financial, LLC , unpublished opinion per curiam (No. 296471, issued 7/26/2011). Despite the 2008 consent judgment o f eviction, and a subsequent 2011 eviction action, plaintiffs r emained in possession of the property. According to defendants,-2- plaintiffs did not finally surrender possession of the property until April 2014, in compliance with a bankruptcy court order.

In 2011, plaintiffs filed the instant action, alleging various counts against defendants. The crux of plaintiffs’ claims, however, is that the original f oreclosure action was invalid because the assignment document was fraudulent. Furthermore, p laintiffs alleged that the failure
to disclose this fact in the foreclosure action as well as the subsequent eviction proceedings
constituted a fraud on the courts involved.

Part of defendants’ response wa s to move in bankruptcy court t o reopen plaintiffs’ 2008 bankruptcy. Defendants’ position was that, even assuming that plaintiffs had a valid claim, any such claim arose prior to their filing for bankruptcy and, ther efore, the claim was an asset of the bankruptcy estate and plaintiffs. With one exception, the bank ruptcy court agreed. That exception was the claim regarding a fraud on the court in conne ction with the eviction proceedings. The bankruptcy court concluded that that claim, u pon which the court gave no opinion of its validity, arose af ter the conclusion of the bank ruptcy proceedings and, therefore, was not an asset of the bankruptcy estate. In addition to orde ring plaintiffs to surrender possession of the property within one week, the court explicitl y restricted plaintiffs’ ability to
maintain the fraud on the court claims:

Therefore, the Debtors will not be entitled to seek title to t he Property, possession of the Property, an e xtension of their possession of the Property, or damages related to their loss of the Property or of an interest in the Property. Nor may the Debtors seek damages based on any claim or allegation t hat the prepetition foreclosure of the mortgage on the Property was wrongf ul or defective, except insofar as such a claim or allegation is part of the FOC Claim.

The FOC Claim referenced by the bankruptcy court in its order i s the fraud claim related to the eviction proceedings. The court also directed the bankruptcy t rustee to release the litigation
claims related to the foreclosure and ruled that those claims w ould cease to exist. The court further found that title to the property “transferred to RFC pu rsuant to the Sheriff’s Deed
recorded with the Washtenaw C ounty Register of Deeds on March 8 , 2007 . . . .”

Thereafter, plaintiffs moved in the circuit court to reopen th is case in light of the conclusion of the bankruptcy pro ceedings. The trial court deni ed the motion and plaintiffs now appeal.

While there are a number of issu es presented in this appeal, t here is one that is clearly and easily dispositive of this matter: this case is moot. In ligh t of the bankruptcy court’s order, plaintiffs are unable to have the foreclosure set aside, obtain damages based upon a claim of an improper foreclosure, or regain possession of the house. There fore, no remedy can be fashioned,-3- even assuming that plaintiffs can establish fraud, and this cas e is moot. See Kieta v Thomas M Cooley Law School , 290 Mich App 144, 147-148; 799 NW2d 579 (2010). 1

Affirmed. Defendants may tax costs.

/s/ David H. Sawyer /s/ Michael J. Kelly /s/ Douglas B. Shapiro

1 Plaintiffs argue that, if they could establish fraud in the ev iction proceedings, they would be entitled to seek sanctions and punitive damages for that fraud perpetrated upon the district court. While this is possibly true, it would be in the form of damages awarded to a litigant in the court because of the fraud committed against the court in those proce edings. Therefore, even assuming that plaintiffs would be entitled to such damages, a v ery large assumption indeed, it would have to have been awarded by the district court in the ev iction proceedings, not by the circuit court in an independent action.