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

revision until final publication in the Michigan Appeals Reports.

-1-

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

SEE VENTURE FUND, LLC, THEODORE BASH, 

and PATTI ANN BASH,

Plaintiffs-Appellants,

UNPUBLISHED

August 15, 2024

v No. 363166

Saginaw Circuit Court

MERCANTILE BANK CORPORATION, LC No. 20-041433-CB

Defendant-Appellee.

Before: REDFORD, P.J., and GADOLA, C.J., and RIORDAN, J.

PER CURIAM.

Plaintiffs, See Venture Fund, LLC (SVF), Theodore Bash (TB), and Patti Ann Bash (PB), 

appeal as of right a judgment of no cause of action entered after a bench trial. The trial court ruled 

in favor of defendant, Mercantile Bank Corporation (the bank). Plaintiffs also appeal an earlier 

ruling by the court granting summary disposition in favor of the bank under MCR 2.116(C)(10) 

on a breach-of-bailment claim, which was one of four causes of action alleged by plaintiffs. We 

affirm.

TB is a physician and attempted to start a medical business with a man named Andy Park. 

TB formed SVF for this purpose and was its sole member. And Park was the business manager. 

SVF obtained two loan products from the bank: (1) a term loan for $120,000 (at times referred to 

as the “610 account”); and (2) a line of credit (LOC) for $130,000 (at times referred to as the “602 

account”). In order to secure the funding, TB and his wife, PB, granted the bank a future advance 

mortgage on their vacation home in Traverse City. Eventually, both loans went into default, and 

the bank commenced foreclosure proceedings on the Traverse City property. TB and PB, without 

admitting liability and expressly denying an accord and satisfaction, paid $248,769.78 to the bank 

to stop the foreclosure proceedings.

Plaintiffs asserted that Park committed fraud and stole the loan monies. They contended 

that the bank was civilly liable for allowing funds from the 602 and 610 accounts to be deposited 

into checking accounts at the bank. It was from these checking accounts that Park allegedly stole 

the money. Plaintiffs maintained that they never authorized any disbursements of the loan funds 
-2-

into the checking accounts. The bank contended that at all times it had observed best practices for 

secure banking and that the disbursements occurred at TB’s direction or the direction of someone 

to whom TB had granted banking access. In essence, the bank asserted that plaintiffs were 

targeting the wrong person or entity and that it was Park, not the bank, who had harmed plaintiffs. 

The trial court ultimately agreed with the bank following a bench trial. On appeal, plaintiffs argue 

that the trial court clearly erred by finding that TB had allowed for the transfer of funds into the 

checking accounts. Plaintiffs also take issue with the court’s dismissal, by way of a pretrial ruling 

on a motion for summary disposition, of plaintiffs’ breach-of-bailment claim.1

In a civil bench trial, the court must make factual findings in relation to whether the plaintiff 

proved the elements of his or her civil action, including damages, by a preponderance of the 

evidence. See Jackson v Bulk AG Innovations, LLC, 342 Mich App 19, 20; 993 NW2d 11 (2022). 

“ ‘This Court reviews a trial court’s findings of fact following a bench trial for clear error and 

reviews de novo the trial court’s conclusions of law.’ ” Knight Enterprises, Inc v RPF Oil Co, 299 

Mich App 275, 279; 829 NW2d 345 (2013), quoting Redmond v Van Buren Co, 293 Mich App 

344, 352; 819 NW2d 912 (2011). “A finding is clearly erroneous if there is no evidentiary support 

for it or if this Court is left with a definite and firm conviction that a mistake has been made.” 

Chelsea Investment Group, LLC v City of Chelsea, 288 Mich App 239, 251; 792 NW2d 781 (2010) 

(citations omitted). “De novo review means that we review the legal issue independently, without 

required deference to the courts below.” Wright v Genesee Co, 504 Mich 410, 417; 934 NW2d 

805 (2019). “This Court is especially deferential to the trial court’s superior ability to judge . . . 

the relative credibility of witnesses.” Smith v Straughn, 331 Mich App 209, 215; 952 NW2d 521 

(2020) (quotation marks, citation, and brackets omitted).2 “[W]e must scrutinize the trial court’s 

factual findings and, while according those findings deference as required by the court rule, we are 

not to tacitly endorse obvious errors, or omissions, under the guise of that deference.” People v 

McSwain, 259 Mich App 654, 683; 676 NW2d 236 (2003).

We review de novo a trial court’s ruling on a motion for summary disposition. Champine 

v Dep’t of Treasury, 509 Mich 447, 452; 983 NW2d 741 (2022).3

 

1 The bench trial concerned plaintiffs’ three remaining claims, which consisted of (1) an alleged

breach of the debtor-creditor relationship between SVF and the bank, (2) an alleged breach of the 

future advance mortgage between TB/PB and the bank, and (3) the alleged unjust enrichment by 

the bank in connection with its collection of $248,769.78 from TB and PB.

2

“Findings of fact by the trial court may not be set aside unless clearly erroneous. In the application 

of this principle, regard shall be given to the special opportunity of the trial court to judge the

credibility of the witnesses who appeared before it.” MCR 2.613(C).

3

In Anderson v Transdev Servs, Inc, 341 Mich App 501, 506-507; 991 NW2d 230 (2022), this 

Court recited the principles that govern the analysis of a motion brought pursuant to MCR 

2.116(C)(10):

MCR 2.116(C)(10) provides that summary disposition is appropriate when, 

“[e]xcept as to the amount of damages, there is no genuine issue as to any material 
-3-

Plaintiffs contend that the trial court’s factual findings were clearly erroneous and that it 

was lax security measures at the bank, as opposed to any actions by TB, that resulted in a transfer 

of funds from the 602 and 610 accounts into the checking accounts.4 Plaintiffs argue that TB’s 

testimony that he never accessed the online-banking portal or gave anyone else permission to do 

so, along with log information showing that online access was associated with an IP (internet 

protocol) address distant from West Branch, where TB lives, and an internet provider, Comcast, 

that TB does not use, establishes that the trial court clearly erred by concluding that it was TB’s 

own actions that led to the disbursement of loan funds into the checking accounts.

The loan officer, Alan Bruder, testified that he, TB, and Park were together right after the 

execution of the term-loan documents, that TB stated that “they wanted to get going with things” 

and “would need the money,” and that TB requested disbursement of the term-loan funds into two 

checking accounts. Bruder explained that $70,000 was to go to SVF and $50,000 to a second TBowned company. Bruder asserted that TB signed the disbursement authorization in his presence. 

 

fact, and the moving party is entitled to judgment or partial judgment as a matter of 

law.” A motion brought pursuant to MCR 2.116(C)(10) tests the factual support for 

a party’s action. “Affidavits, depositions, admissions, or other documentary 

evidence in support of the grounds asserted in the motion are required . . . when 

judgment is sought based on subrule (C)(10),” MCR 2.116(G)(3)(b), and such 

evidence, along with the pleadings, must be considered by the court when ruling on 

the (C)(10) motion, MCR 2.116(G)(5). “When a motion under subrule (C)(10) is 

made and supported . . ., an adverse party may not rest upon the mere allegations 

or denials of his or her pleading, but must, by affidavits or as otherwise provided in 

this rule, set forth specific facts showing that there is a genuine issue for trial.” 

MCR 2.116(G)(4). 

A trial court may grant a motion for summary disposition under MCR 

2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when 

viewed in a light most favorable to the nonmovant, show that there is no genuine 

issue with respect to any material fact. A genuine issue of material fact exists when 

the record, giving the benefit of reasonable doubt to the opposing party, leaves open 

an issue upon which reasonable minds might differ. The trial court is not permitted 

to assess credibility, weigh the evidence, or resolve factual disputes, and if material 

evidence conflicts, it is not appropriate to grant a motion for summary disposition 

under MCR 2.116(C)(10). Like the trial court’s inquiry, when an appellate court 

reviews a motion for summary disposition, it makes all legitimate inferences in 

favor of the nonmoving party. Speculation is insufficient to create an issue of fact. 

A court may only consider substantively admissible evidence actually proffered by 

the parties when ruling on the motion. [Quotation marks, citations, and brackets 

omitted.]

4 Plaintiffs’ attorney repeatedly insisted at trial that the basis of the complaint was not the departure

of the money from the checking accounts but the transfer of the money to the checking accounts in 

the first instance.
-4-

A statement for the SVF checking account, dated February 29, 2016, was sent to TB’s home 

address, and it showed the $70,000 deposit. A February 29, 2016 statement for the second 

company that was also mailed to TB’s home address reflected the $50,000 deposit.

The upshot of this evidence is that plaintiffs’ argument related to online banking is not even 

pertinent to the disbursement of the term-loan monies because Bruder’s testimony indicated that 

the disbursement took place in accordance with in-person directions from TB. The trial court did 

not make a separate factual finding regarding disbursement of the term-loan funds as opposed to 

the LOC funds, but plaintiffs do not raise this as an issue on appeal. Moreover, the court did make 

this general statement:

In any event after reviewing all of the evidence the [c]ourt is not persuaded 

that the bank breached its debtor/creditor relationship with See Venture or breached 

its obligations under the Bashes[’] future advance[] mortgage, or has been unjustly 

enriched. Accordingly the [c]ourt will grant a judgment of no cause of action.

The court’s conclusion in this regard with respect to the term loan is amply supported by Bruder’s 

testimony.

Money from the LOC, however, was disbursed into checking accounts by way of online 

banking. And it is true that TB testified that he did not access the bank’s online system or authorize 

anyone else to do so. But there was ample evidence in the record to support the trial court’s finding 

that TB must have, at a minimum, allowed third-party access.

Bruder testified that during a meeting with TB and Park, it was agreed that TB would be 

the “company system administrator” (CSA) for purposes of online banking associated with the 

two loan products. The CSA is the person “in charge of all the online banking.” Bruder explained 

that an e-mail address was needed to set a person up as a CSA, and he was directed to use 

<apark@wellteckusa.com>. Bruder testified that TB was present at the time and that he raised no 

objections or concerns regarding the use of that e-mail address. Indeed, Bruder stated that TB 

signed the online-banking form with that e-mail address in Bruder’s presence. The form indicated 

that “the account owner understands the importance of maintaining password confidentiality and 

will not disclose log-in and password information to others.” The form further provided that the 

account owner “understands the importance of regularly reviewing account statements for 

irregularities.”

John Schulte, a supervisor in online banking for the bank, explained that the bank uses an 

outside vender, Q2 E-Banking (Q2), to implement its online-banking procedures and that this 

vendor is used by “40 of the top 100 banks” in the country. Schulte contended that Q2 uses a 

“layered” and “multifactor” approach to security. He stated that once a CSA is identified in a 

written form, a bank employee sets up an account and sends a letter to the CSA with instructions 

on how to enroll in online banking. The letter itself does not provide sufficient information for a 

person to enroll; instead, one must have a six-digit security code that is sent by way of a text 

message or connected voice call (not a voicemail) to the cellular telephone number that was 

provided to the bank. In other words, a person who simply intercepted the letter would not be able 

to obtain online-banking access. The code is valid for 15 minutes, and the CSA must then create 

a password.
-5-

TB’s online-banking form listed his home address and a “login ID” of “TABash.” Schulte 

testified that according to a log of records, user TABash logged in for the first time on March 2, 

2016. The log listed TB’s cellphone number as the number used during the process. It also 

indicated that a voice call was employed to obtain the security code. Schulte expressed that the 

log revealed that the TABash user transferred various monies from the LOC into internal checking 

accounts starting on May 9, 2016. TB testified that he had had the same cellphone number 

throughout the proceedings and had not lost his cellphone. He further testified that he did not think 

he had given his telephone to “somebody else to use for a period of time.”

This evidence adequately demonstrated that the bank utilized proper security measures, 

and it sufficiently supported the trial court’s finding that TB, as the CSA, must have given Park 

access to the online-banking portal.5 The trial court’s conclusion is further supported by the fact 

that TB himself stated that he willingly went into business with Park and only later discovered that 

Park was not trustworthy. Plaintiffs mention the log of online activities that showed an IP address 

other than in West Branch and an ISP (internet service provider) other than the ISP used by TB. 

But Schulte testified that the IP addresses listed on the log were an “approximation” and that 

sometimes his own telephone showed his IP address as being in Warren even though he lives in 

Grand Rapids. Schulte also explained that if one is using Wi-Fi on a telephone, the IP address 

 

5 The trial court stated:

Without detailing every piece of the expansive evidence that covered many 

months of transactional history, for me, the case ultimately comes down to one 

event, one point in time. 

Dr. Bash claims he never enrolled and activated an online account for See 

Venture, much less processed or authorized electronic withdraws or transfers. But 

somehow it seems that Andy Park did gain access and drained away loan proceeds.

The [c]ourt concludes that online banking that Dr. Bash claims to eschew 

was activated when he logged-on to the bank’s website, entered a temporary ID, 

and completed the enrollment process and activation.

Importantly, the way the bank’s online enrollment process is structured, the 

enrollment and activation process could be accomplished only through Dr. Bash’s 

personal cell phone. A cell phone that Dr. Bash and no one else possessed. The 

implications are obvious.

True, Andy Park may well have ultimately walked away with loan proceeds. 

But Park’s access[] to See Venture’s online banking account could have only come 

through Dr. Bash who singularly had the ability to originate and secrete or share 

the account and password. Although[] Dr. Bash may have no memory of it, the 

court concludes he must have shared the online banking account info with others, 

presumably Andy Park in particular, and in that way did authorize the subsequent 

transactions.
-6-

would show the ISP associated with the Wi-Fi and not necessarily the ISP used by the phone’s 

owner at home. He observed that the IP addresses on the log were not a reliable indication of the 

physical location of the device or the customer. Schulte testified that for someone other than the 

CSA to obtain online-banking access, that person would need authorization from the CSA.

Under all these circumstances, and keeping in mind that the trial court was in the best 

position to assess the credibility of the witnesses, Ambs v Kalamazoo Co Rd Comm, 255 Mich App 

637, 652; 662 NW2d 424 (2003), we conclude that no basis for reversal is apparent in relation to 

the trial court’s findings after the bench trial.6

Plaintiffs also argue that the trial court improperly dismissed their breach-of-bailment 

claim before trial when it granted the bank’s motion for summary disposition under MCR 

2.116(C)(10). The trial court stated the following after the bench trial:

For what it’s worth, although the [court] previously dismissed a bailment 

claim by See Venture[,] [e]ven if that claim had somehow survived the outcome 

would not be different. Assuming for the moment that the relationship could be 

characterized as a bailment, given Dr. Bash’s misstep and effectively authorizing 

others to withdraw loan proceeds, the trial evidence did not demonstrate a breach 

of bailee’s duties.

Our affirmance of the trial court’s findings after the bench trial renders moot an analysis of the 

breach-of-bailment claim because there was no error by the court in finding that the bank did 

nothing improper and that it was TB’s owns actions that led to disbursements to the checking 

accounts. We will nevertheless provide a brief analysis.

Plaintiffs’ theory was that SVF was the bailor with regard to the loan products and that the 

bank, as bailee, breached its duties to safeguard the monies. In Goldman v Phantom Freight, Inc, 

162 Mich App 472, 479-480; 413 NW2d 433 (1987), the Court stated:

“Bailment,” in its ordinary legal signification, imports the delivery of 

personal property by one person to another in trust for a specific purpose, with a 

contract, express or implied, that the trust shall be faithfully executed and the 

property returned or duly accounted for when the special purpose is accomplished. 

Phrased another way, it is a relationship wherein a person gives to another the 

temporary use and possession of property other than money, the latter agreeing to 

return the property to the former at a later time. [Citations omitted; emphasis 

added.]

 

6 The bank sets forth many proposed alternative bases for affirmance. But they need not be relied 

upon in light of the clear infirmity of plaintiffs’ appellate arguments. We find it more prudent to 

rely on the conclusions reached by the trial court as opposed to theories on which the court did not 

rule. That said, we find the alternative bases or theories fairly persuasive but ultimately make no 

ruling on those theories. 
-7-

In Godfrey v Flint, 284 Mich 291, 295-296; 279 NW 516 (1938), the Michigan Supreme Court 

also noted that the law of bailments pertains to property other than money. See also In re George 

L Nadell & Co, 294 Mich 150, 154; 292 NW 684 (1940) (discussing bailments of personal 

property). Plaintiffs have simply not provided any Michigan authority for the proposition that loan 

monies could potentially be the subject of a bailment and instead rely on out-of-jurisdiction 

caselaw.

But even the caselaw plaintiffs provide is not persuasive to prove their assertion that a 

bailment existed. For example, in In re LGI Energy Solutions, Inc, 460 BR 720, 729 (Bankr CA 

8, 2011), the court stated:

Although bailment is most typically thought of in the context of personal 

property or chattels—such as a car, for example—the concept has been held to 

include other types of property, including money . . . . By its nature, the analysis of 

bailment of money is more complicated than that involving a car, for example. 

Either way, however, one of the core principles of a bailment is that the bailee holds 

specific and identifiable property for the bailor. If either by contract or otherwise, 

there is no obligation to restore the specific property, and the bailee is at liberty to 

return another thing of equal value or the money value the transaction is not a 

bailment. [Quotation marks, brackets, and citation omitted.]

The In re LGI court set forth the following passage from a treatise:

While the parties to a bailment of money have the right and authority to 

change their relation, by a later contract, to that of debtor and creditor as parties to 

a loan, a bailment of money is not converted into a loan by reason of the mere fact 

that the bailee is not able to return the identical currency or specie deposited with 

him or her. Whether one who transfers money to another[7]should be considered a 

bailor or a creditor turns on the intent of the parties to the transaction, as manifested 

by their conduct and statements and any other relevant evidence. A bailment of 

money is created when a special or specific bank account is created, title to the 

funds remains with the account holder, and the funds are separated from other 

deposits. [Id. (citations omitted; emphasis added by In re LGI).]

As aptly noted by the trial court in the case at bar:

Here, the parties’ agreement, documented in several writings, makes no 

mention of See Venture depositing any specific money or property with the Bank, 

or of a duty to segregate or return anything in-kind. And See Venture has identified 

no evidence supporting the proposition that its accounts with the Bank were other 

than ordinary. And an ordinary, general account is not a bailment.

 

7 Plaintiffs’ theory here is that they “transferred” the loan-product monies to the bank, for the bank 

to hold as a bailee.
-8-

Plaintiffs emphasize that an ordinary checking account was not at issue,8but that is not dispositive. 

The operative fact is that plaintiffs did not demonstrate that they gave the money in the 602 and 

610 accounts to the bank as part of a special, segregated deposit. We thus conclude that the trial 

court’s determination that there was no bailment as a matter of law did not constitute error.

Affirmed. Having fully prevailed on appeal, the bank may tax costs under MCR 7.219.

/s/ James Robert Redford

/s/ Michael F. Gadola

/s/ Michael J. Riordan

 

8

In Riverview Coop, Inc v First Nat Bank & Trust Co of Mich, 417 Mich 307, 317-318; 337 NW2d 

225 (1983), the Court stated:

When funds are deposited in an ordinary checking account, they become 

the bank’s funds for such use as the bank deems appropriate, subject only to the 

bank’s duty to repay to the creditor-depositor an amount equal to the sums 

deposited upon the call of the depositor or his authorized representative. The 

money, once deposited, becomes the bank’s money, the depositor having only an 

entitlement to recoupment of an equivalent sum upon demand, having loaned the 

bank the amount deposited. Such funds become a fungible part of the bank’s

general assets and retain no separate identity.