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### STATE OF MICHIGAN

COURT OF APPEALS

LLANOS E. VENEGAR and FRANCES VENEGAR,

Plaintiffs-Appellants, UNPUBLISHED January 26, 2017

v No. 330565
Kent Circuit Court FIFTH THIRD MORTGAGE COMPANY, LC No. 15-006600-CH

Defendant-Appellee.

Before: M URPHY , P.J., and M ETER and R ONAYNE K RAUSE , JJ.

P ER C URIAM

.
Plaintiffs appeal by right the trial court’s order granting su mmary disposition in favor of defendant and denying plaintiffs’ motion for leave to amend the ir complaint. This matter arises
out of defendant’s foreclosure on plaintiffs’ mortgage and subs equent sheriff’s sale of plaintiffs’ house. At the very end of the redemption period, plaintiffs co mmenced the instant action, along with a request for an injunc tion, seeking to prevent their evic tion. We affirm.

Defendant’s motion for summary disposition asserted MCR 2.116( C)(8) and (10). A grant or denial of summary disposition is reviewed de novo on t he basis of the entire record to determine if the moving party is entitled to judgment as a matt er of law. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion un der MCR 2.116(C)(10),
which tests the factual sufficien cy of the complaint, all evide nce submitted by the parties must be evaluated in the light most fa vorable to the non-moving party, and summary disposition is proper only where the evidence fails to establish a genuine issue rega rding any material fact. Id . at 120.
The trial court did not state which subrule was the basis for i ts grant of summary disposition, but because it clearly considered more than just the pleadings, sum mary disposition was presumably not granted pursuant to MCR 2.116(C)(8). See Id . at 119-120. A party responding to a motion under MCR 2.116(C)(10) must establish more than a mere possibil ity that a claim could be supported at trial. Id . at 121.

Plaintiffs initially asserted a variety of causes of action, b ut they are all premised on two underlying factual allegations: t hat defendant had failed to p ost proper conspicuous notice of the impending sheriff’s sale pursuant to MCL 600.3208, and that def endant had in some way induced plaintiffs to believe that the loan would be modified a nd the sheriff’s sale postponed during that process. In support of the former, plaintiffs pres ented an unsigned and un-notarized-2- affidavit purportedly from plaintiff Llanos Venegar literally s tating nothing more than boilerplate preliminaries and that he had r ead the pleadings and that they were true to the best of his knowledge. Defendant presented a properly signed and notarized affidavit from the process server and a photograph of plaintiffs’ house with what appears to be a notice affixed to the front door. The trial court found plaintiffs’ affidavit “unavailing” and that plaintiffs’ proposed amended complaint would not add any new relevant factual allega tions, so it granted summary disposition. Plaintiffs have presented no argument on appeal r egarding their second factual allegation, so it is abandoned. See People v King , 297 Mich App 465, 474; 824 NW2d 258 (2012). 1

Plaintiffs purchased their house in 2009 and mortgaged it in f avor of defendant. Plaintiffs did not expressly admit as such, but apparently plai ntiffs fell behind in their mortgage payments for several years. It is undisputed that a sheriff’s sale was held on January 21, 2015. A redemption amount was established, and although again not exp ressly stated, plaintiffs apparently did not pay it. Instead, exactly six months to the day after the sheriff’s sale, plaintiffs commenced the instant action. Plaintiffs simultaneously filed an ex parte motion for a temporary restraining order that was in most respects identical to the co mplaint. Both were poorly
articulated but nevertheless alle ged that defendant had failed to conspicuously post notice of the foreclosure sale on the premises, and that defendant had in som e way promised plaintiffs that no foreclosure sale would occur while a loan modification process was undertaken. As noted, in support plaintiffs attached to the motion for TRO an unsigned, undated, un-notarized affidavit that contained no actual facts and only a conclusory statement to the effect that the complaint

was true.

Defendant asserted that it had c omplied with the required noti ce provisions. It attached a copy of a notice and affidavit st ating that it had been publish ed in the Grand Rapids Legal News
on December 19 and 26, 2014, and January 2 and 9, 2015. It als o attached a copy of a notice and affidavit from Todd L. Rogers that he had posted it conspicuous ly on plaintiffs’ house on December 26, 2014. Defendant subsequently filed another sworn and notarized affidavit from Rogers reiterating his prior affi davit and further stating that he had posted the notice to the front door of the premises and taken a photograph of it at the time. A computer-printed color copy of a photograph, date-stamped 12/26/ 2014 13:06, of a two-story lig ht-green house with dark-green trim and a document affixed to the front door was attached, although the document itself is illegible. Defendant sou ght summary disposition.

Plaintiffs responded to defendant ’s motion for summary disposi tion by largely reiterating arguments already made, but adding that the affidavits providedby defendant must be perjured, that it was common practice to sign such documents without conf irming their accuracy, and

1 Plaintiffs additionally repeat an utterly frivolous argument, which the trial court properly rejected, premised on defendant’s alleged failure to provide no tice of a right to a financial accommodation meeting pursuant to MCL 600.3204(4) and MCL 600.3 205(a)(3), both of which were repealed either in whole or in relevant part by 2012 PA 52 1, effective June 30, 2013, long
before the instant foreclosure occurred.-3- plaintiff therefore needed the benefit of discovery. Plaintiff s attached another copy of plaintiff Llanos’s unsigned, undated, un- notarized affidavit. Plaintiffs also sought to amend their complaint to add “additional Facts and Counts.” We have compar ed plaintiffs’ proposed amended complaint to the complaint as originally filed; the pro posed amended complaint is slightly more detailed but substantively relies on the same fac tual allegations and presents the same theories. Plaintiffs argued that because they did not see any posted notice, defendant must not have posted any, and because defendant contended that it ha d posted notice, there must therefore be a genuine question of fact. Plaintiffs further as serted that “they would have reacted a lot differently” if they ha d received notice. The trial cour t recognized that “it’s always tricky to prove a negative,” but that plai ntiffs’ contentions were “simpl y unavailing” and their proposed amendment futile. Plaintiffs attached, for the first time, a s igned, dated, and notarized copy of
their affidavit to a motion for consideration, which the trial court denied.

As an initial matter, we agree with defendant that plaintiffs’ brief is so substantively poor
that we could deem this entire a ppeal inadequately presented to the point of warranting peremptory affirmance with no further consideration. Defendant ’s description of the brief as only “vaguely rais[ing] several legal arguments” may even be a generous one. Furthermore, it is suspect whether plaintiffs even have standing to challenge the foreclosure sale. This Court has held, in seemingly no uncertain terms, that a party who fails t o redeem their property within the statutory time after a sheriff’s sale loses “standing” to bring a claim. Bryan v JPMorgan Chase
Bank , 304 Mich App 708, 713-715; 848 NNW2d 482 (2014). However, it has also been established that although setting aside such a sale is difficul t, a sufficiently egregious showing of fraud or irregularity can warrant doing so. Kubicki v MERS , 292 Mich App 287, 289; 807 NW2d 433 (2011). Furthermore, it is at least theoretically possible for a mortgagor to have the redemption period extended or to lled on the basis of a similar showing. See Schulthies v Barron

, 16 Mich App 246, 247-248; 167 NW2d 784 (1969); Manufacturers Hanover Mortgage Corp v
Snell , 142 Mich App 548, 553-554; 370 NW2d 401 (1985). We have foun d no cases decided
after Bryan allowing a mortgagor to challeng e a foreclosure sale after the expiration of the redemption period. However, alth ough plaintiffs’ articulation and presentation of their case are extremely poor, they do seek extension of the redemption period and assert that defendant’s alleged misconduct deprived them of the ability to launch an ea rlier challenge. We therefore give plaintiffs the benefit of the doubt and presume, although we do not decide , that they do have the requisite standing in thi s matter and should be afforded su bstantive consideration.

We note that plaintiffs legally presented no evidence in opposition to defendant’s motion for summary disposition. First, at the time the trial court de cided the motion, the affidavit was unsigned and not notarized, desp ite plaintiffs apparently being made aware of the deficiency.
Such a document is not considered to be an affidavit at all, an d the trial court was not even permitted to consider it. See Rataj v City of Romulus , 306 Mich 735, 755 n 8; 858 NW2d 116 (2014). However, even presuming the trial court had been permi tted to consider it, the affidavit literally stated nothing more than the bald and conclusory aver ment that the contents of the complaint were true, which is in no way “set[ting] forth specif ic facts showing that there is a genuine issue for trial.” MCR 2.116(G)(4). Merely conclusoril y stating that the substance of a pleading is true renders an affidavit legally insufficient even if its form was otherwise proper. Kozak v City of Lincoln Park , 499 Mich 465, 468, 468 n 6; 885 NW2d 443 (2016); Durant v
Stahlin , 375 Mich 628, 638-639; 135 NW2d 392 (1965); Soderberg v Detroit Bank & Trust Co

, 126 Mich App 474, 478; 337 NW2d 364 (1983); Miller v Rondeau , 174 Mich App 483, 487; 436-4- NW2d 393 (1988). In other words, plaintiffs’ affidavit would n ot have constituted evidence even theoretically capable of showi ng a genuine question of fact irr espective of its technical sufficiency.

Having resolved to address the merits of this case, extending to plaintiffs the widest possible latitude, at most their argument amounts to claiming t hat defendant must have failed to post notice because they did not see it . Strictly speaking, if true, this is only indirect evidence tending to suggest that no notice was posted, presumably on the grounds that because they live in the house, they would have seen a ny such notice. However, defe ndant provided evidence that plaintiffs could not have been unaware of the impending foreclo sure sale or that they were in
default of their loan. Plaintiffs have not even attempted to refute that evidence, and their alternate loan-modification argum ent that they have abandoned o n appeal necessarily shows that they were aware. All things considered, pl aintiffs’ contention is highl y suspicious.

Presuming the trial court could accept as “evidence” plaintiff s’ assertion that they did not see any notice posted and should have if it had been there to s ee, the general rule is that “summary disposition is rarely appropriate in cases involving q uestions of credibility;” but, critically, if the record shows that reasonable minds would nev ertheless not be able to differ, summary disposition may be approp riate despite the presence of a credibility-based question of
fact. See In re Handelsman , 266 Mich App 433, 438-439; 702 NW2d 641 (2005). Additionally

, plaintiffs’ argument that defendant should have submitted an or iginal of the photograph was raised for the first time not merely on appeal, but in their re ply brief on appeal. In any event, their argument that the photograph could have been altered is t echnically true but entirely speculative, especially at this stage of the proceedings. We a re not persuaded that the trial court was wrong to conclude that plain tiffs had utterly failed to dem onstrate even a possibility of establishing at trial that defendant had failed to comply with the notice-posting requirement of
MCL 600.3208.

We appreciate that losing one’s home is traumatic. However, t he trial court properly, for a number of reasons, found that plaintiffs had failed to presen t competent evidence or argument to refute defendant’s evidence that it had properly posted noti ce in compliance with the statute. To the minimal extent plaintiffs have presented anything to thi s Court at all, nothing even suggests that summary dispositi on was anything other than appro priate and necessary.

Affirmed. Defendant, being the p revailing party, may tax cost s. MCR 7.219(A).

/s/ William B. Murphy
/s/ Patrick M. Meter /s/ Amy Ronayne Krause