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STATE OF MICHIGAN 

COURT OF APPEALS 

JPMORGAN CHASE BANK, N.A., 

 Plaintiff-Appellee, 

UNPUBLISHED 

January 29, 2015 

v No. 318763 

Oakland Circuit Court 

FIRST MICHIGAN BANK and PEOPLES 

STATE BANK, 

LC No. 2011-118087-CH 

 Defendants-Appellees, 

and 

KAYS ZAIR and PATRICE ZAIR, 

 Defendants-Appellants. 

Before: SHAPIRO, P.J., and GLEICHER and RONAYNE KRAUSE, JJ. 

PER CURIAM. 

 This case began as a priority dispute between two mortgagees regarding the real property 

of defendants Kays and Patrice Zair. After one mortgagee successfully foreclosed, the other 

filed suit. The mortgagees reached an agreement and the circuit court entered a consent 

judgment at their request. The Zairs appealed and had the judgment set aside based on the 

mortgagees’ failure to secure their consent as well. Following that appeal, the plaintiff 

mortgagee decided it no longer wanted to pursue its priority claim and sought voluntary 

dismissal of this action. The circuit court granted that request, dismissing the action without 

prejudice and without costs to any defendant. The Zairs’ contention that the circuit court should 

have imposed limitations on the voluntary dismissal is without merit and we affirm. 

I. BACKGROUND 

 Kays and Patrice Zair had two mortgages on their residential property: (1) a $250,000 

mortgage loan from Peoples State Bank (PSB) that was recorded in 2002, and (2) a $1,321,000 

mortgage loan with JPMorgan Chase Bank (Chase) that was recorded in 2007. The banks 

disputed whether PSB signed an effective subordination agreement making its first-recorded lien 

junior to that of Chase. At some point, the Zairs stopped making payments on both their 

mortgage loans. As a result PSB foreclosed on March 30, 2010. PSB placed the winning bid at 

the sheriff’s sale and recorded its sheriff’s deed. The Zairs did not redeem the property within six 
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months as required by MCL 600.3240(8), but negotiated an option agreement that would allow 

the Zairs’ daughter, Tiffany Zair, to purchase the home free and clear from PSB for $850,000. 

However, Tiffany never signed the option agreement, which expired on October 31, 2010. The 

agreement was therefore rendered “null and void.”1

 In February 2011, First Michigan Bank 

(First Michigan)2

 purchased PSB’s interest in the property. 

 On March 29, 2011, Chase filed suit against First Michigan and PSB to resolve the 

priority dispute. Chase named the Zairs in the complaint, but claimed that it did so for notice 

purposes only. First Michigan and Chase subsequently reached an agreement under which First 

Michigan would set aside the foreclosure and sheriff’s deed. The banks filed a consent judgment 

to this effect. The Zairs objected, but the circuit court ruled that the Zairs had no interest in the 

property and were named in the complaint for notice purposes only. As the Zairs were not truly 

interested parties, the court determined that their consent was unnecessary to the entry of the 

judgment. 

 The Zairs appealed and this Court reversed the entry of the consent judgment, holding: 

 Chase and First Michigan assert that the judgment actually benefited the 

Zairs. However, any beneficial effect of the judgment on the Zairs is not a matter 

for the Zairs’ creditors to decide. Even if it could be established that from a 

pecuniary perspective, the Zairs gain from the restoration of their property rights 

and accompanying liens, that evaluation does not eliminate the necessity of 

obtaining their consent to the purported consent order. 

 We reject the related arguments by Chase and First Michigan that the 

Zairs are not “aggrieved” by the order . . . . To be aggrieved by a judgment, a 

party must have a legal right that was invaded, or some interest of a pecuniary 

nature in the outcome of the case, and not a mere possible interest arising from 

some unknown and future contingency. Here, the purported consent order voided 

the sheriff’s sale. This restored the Zairs’ interest in the property and also 

restored liens against the property that had been extinguished. The Zairs have a 

pecuniary interest related to the restoration of their property rights and the liens 

against the property. . . . [JPMorgan Chase Bank, NA v First Michigan Bank, 

unpublished opinion per curiam of the Court of Appeals, issued June 27, 2013 

(Docket No. 309857), unpub op at 2-3 (citation omitted) (Chase I).] 

 While the prior appeal was pending, the PSB/First Michigan foreclosure and sheriff’s 

deed had been set aside and property rights automatically returned to the Zairs. Chase took the 

 

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 The Zairs insist that Tiffany exercised her option to purchase the property. However, the lower 

court record contains no signed copy of the option agreement and no evidence that any funds 

were paid toward the purchase of the property. 

2

 First Michigan is now known as “Talmer Bank.” The parties never changed First Michigan’s 

title in the lower court or appellate clerk’s office. 
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opportunity to foreclose on the property. It was the successful bidder at the sheriff’s sale and 

recorded its deed in 2012. The Zairs filed suit against Chase, alleging that the redemption period 

under the Chase mortgage should be extended to allow their appeal in Chase I. The Zairs further 

raised challenges to the foreclosure proceedings based on Chase’s failure to recognize the Zairs’ 

qualification for a mortgage modification. 

 The circuit court summarily dismissed the Zairs’ claims and imposed sanctions against 

them. The Zairs appealed that decision to this Court. After the resolution of Chase I, Chase and 

the Zairs filed a joint circuit court motion to vacate that court’s judgment in the Zairs’ lawsuit, 

but the circuit court refused. The parties also submitted a joint motion to vacate the lower court 

judgment in the pending Zair appeal. Given the reversal in Chase I, Chase conceded that it was 

proper to set aside its foreclosure sale and withdraw its filed sheriff’s deed. This Court agreed 

and entered an order vacating the lower court judgment. Zair v JPMorgan Chase Bank, NO, 

unpublished order of the Court of Appeals, entered September 9, 2013 (Docket No. 315074) 

(Zair). 

 The proceedings on remand after Chase I are now at issue. Chase decided to voluntarily 

dismiss its lawsuit on remand. This decision would leave intact the First Michigan/PSB 

foreclosure and sheriff’s deed. First Michigan concurred in this motion. 

 The Zairs opposed the voluntary dismissal motion without prejudice and without costs 

and attorney fees. The Zairs contended that voluntary dismissal would deprive them of their 

right “to fully vindicate their rights after incurring thousands of dollars in legal fees and over two 

years of aggravation.” They further contended that Chase only sought voluntary dismissal 

because “its prospects of obtaining a favorable judgment . . . were slim or non-existent.” 

Accordingly, the Zairs requested that the dismissal be granted with prejudice and after awarding 

their costs and fees. 

 At the October 2013 hearing on this matter, the parties agreed that the only issue before 

the court was the Zairs’ “claim that they are entitled to full fees and costs based on this motion.” 

Chase argued that the Zairs’ property rights had been lost during the PSB foreclosure proceeding 

and had never been restored. Yet, the Zairs were trying to “raise claims related to the property 

that had never been made before in this Court during the pendency of the underlying case.” 

While the Zairs asserted that “they stand on the cusp of prevailing in this lawsuit,” all they 

sought was “a finding that the [First Michigan/PSB] mortgage had priority.” And that was 

exactly the relief that would remain after Chase’s lawsuit was voluntarily dismissed. Chase 

further noted that Chase I made no discussion of the merits of the case, and was based solely on 

the procedural issue of whether the Zairs were an interested party that had to stipulate to the 

consent judgment. Accordingly, there was no appellate decision that the Zairs had been harmed. 

 The Zairs’ attorney noted that they had no objection to dismissing in relation to First 

Michigan. They did, however, object to any dismissal of Chase’s claims without prejudice and 

without costs. Counsel conceded that the Court of Appeals had not awarded the Zairs costs or 

fees, but made no further elaboration on the defense arguments. 

 Ultimately, the circuit court granted the voluntary dismissal without prejudice and 

without costs. This appeal followed. 
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II. ANALYSIS 

 MCR 2.504(A) is the court rule governing the voluntary dismissal of actions. It provides 

in relevant part: 

 (2) By Order of Court. Except as provided in subrule (A)(1), an action may not 

be dismissed at the plaintiff’s request except by order of the court on terms and 

conditions the court deems proper. 

 (a) If a defendant has pleaded a counterclaim before being served with the 

plaintiff’s motion to dismiss, the court shall not dismiss the action over the 

defendant’s objection unless the counterclaim can remain pending for 

independent adjudication by the court. 

 (b) Unless the order specifies otherwise, a dismissal under subrule (A)(2) is 

without prejudice. [Emphasis added.] 

 “Under MCR 2.504(A)(2), an action may not be dismissed at the plaintiff’s request 

except by order of the court on terms and conditions the court deems proper.” Walbridge 

Aldinger Co v Walcon Corp, 207 Mich App 566, 570; 525 NW2d 489 (1994). We review a trial 

court’s decision on a motion for voluntary dismissal “to see whether the decision was without 

justification.” Id. The trial court has discretion to grant a voluntary dismissal motion but “in 

exercising that discretion the trial judge is to weigh the competing interests of the parties along 

with any resultant inconvenience to the court from further delays.” African Methodist Episcopal 

Church v Shoulders, 38 Mich App 210, 212; 196 NW2d 16 (1972). “Normally, such a motion 

should be granted unless defendant will be legally prejudiced as a result. As the purpose of [the 

court rule] is to protect defendant from the abusive practice of dismissal after much time and 

effort has been put into a lawsuit, any dismissal should be on terms and conditions which protect 

defendant.” Id. (citation omitted, emphasis in original). See also Makuck v McMullin, 87 Mich 

App 82, 85; 273 NW2d 595 (1978) (“[T]he court should dismiss an action only if no prejudice to 

defendant will result.”). And voluntary dismissal should not be granted simply to permit the 

plaintiff to avoid losing its suit. See McLean v McElhaney, 269 Mich App 196, 202-203; 711 

NW2d 775 (2005), rev’d on other grounds 480 Mich 978 (2007); Rosselott v Muskegon Co, 123 

Mich App 361, 375-376; 333 NW2d 282 (1983). 

 We discern no abuse of discretion in the circuit court’s decision to grant Chase’s 

voluntary dismissal motion without engrafting “terms and conditions” to benefit the Zairs. The 

Zairs cannot establish that they will be prejudiced as a result of the voluntary dismissal. See 

Makuck, 87 Mich App at 85; African Methodist, 38 Mich App at 212. First and foremost, the 

Zairs no longer have an interest to protect in the subject property. A person’s “rights to 

[disputed] property [are] extinguished when the redemption period expire[s] and the foreclosure 

bec[omes] final.” Ruby & Assocs, PC v Shore Fin Servs, 480 Mich 1107; 745 NW2d 752 

(2008). See also Al-Raeis v Aurora Bank, FSB, ___ Mich App ___; ___ NW2d ___ (Docket No. 

316269, issued December 9, 2014), slip op at 3-4, citing Bryan v JPMorgan Chase Bank, 304 

Mich App 708, 713-715; 848 NW2d 482 (2014). The Zairs failed to challenge the PSB 

foreclosure before the end of the redemption period—September 30, 2010. Absent “a clear 

showing of fraud” or an allegation of irregularity in the proceedings, a timely challenge is 
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required or the mortgagor forever loses his or her property rights and the right to challenge the 

foreclosure procedure. Al-Raeis, slip op at 3-4, quoting Bryan, 304 Mich App at 713-714. 

Accordingly, by the time Chase filed its lawsuit in March 2011, as the Zairs had raised no 

allegations of fraud or irregularity, the Zairs had no property right to vindicate. 

 This Court’s opinion in Chase I does not demand a different result. Prior to the Chase I

appeal, Chase and First Michigan reached an agreement that Chase’s mortgage should take 

priority. As a result, the circuit court entered an order setting aside the PSB/First Michigan 

foreclosure and sheriff’s deed. At that time, the property rights naturally returned to the Zairs. 

This was not completely beneficial to the Zairs, because Chase’s much larger lien was revived. 

This Court did not express any thoughts on the underlying priority dispute or the validity of the 

foreclosure process. Rather, this Court merely stated that Chase and PSB/First Michigan could 

not enter a consent judgment without the Zairs’ input and agreement because reviving their 

property interest and the Chase lien affected their interests. Chase I, unpub op at 3. 

 As a result of Chase I, the Chase lien was again extinguished and the PSB/First Michigan 

foreclosure and sheriff’s deed were restored. The Zairs again found themselves with no interest 

in the property. Accordingly, the Zairs had nothing left to vindicate when Chase sought to 

discontinue its priority battle and to allow First Michigan to keep the property at Chase’s 

expense. 

 The Zairs raised no actual argument in connection with the Option Agreement they 

attached to their response to Chase’s voluntary dismissal motion. The Zairs imply, however, that 

if the lawsuit had not been dismissed, they could have raised the document as a defense to any 

claim by PSB/Michigan. “An option is basically an agreement by which the owner of the 

property agrees with another that he shall have a right to buy the property at a fixed price within 

a specified time.” In re Egbert R Smith Trust, 480 Mich 19, 25; 745 NW2d 754 (2008) 

(quotation marks and citation omitted). It is a contract, “an enforceable promise not to revoke an 

offer.” Id. (quotation marks and citation omitted). Here, the property owner (then PSB) 

promised “another,” Tiffany Zair, that it would sell the property to Tiffany for $850,000. Kays 

and Patrice Zair were not parties to this contract. Moreover, Tiffany did not act within the 

“specified time”—by October 31, 2010. Once the option period expires, the property owner no 

longer must honor it and can transfer the property interest to others. Id. at 26. PSB’s rights were 

made even clearer in the subject Option Agreement because that document specifically indicates 

that Tiffany’s failure to exercise the option by the expiration date renders the agreement null and 

void. The Zairs cannot defend against or challenge PSB/First Michigan’s foreclosure with a null 

and void option agreement to which they were never parties. 

 Contrary to the Zairs’ challenge, the voluntary dismissal was not entered to permit Chase 

to avoid a negative result at trial. See McLean, 269 Mich App at 202-203; Rosselott, 123 Mich 

App at 375-376. The only claim raised by Chase was against PSB/First Michigan. Chase sought 

to identify which bank’s lien had priority. The lower court record includes a signed 

subordination agreement, which Chase sought to enforce. Although PSB/First Michigan argued 

at one time that Chase never provided necessary consideration to give the subordination 

agreement effect, it clearly changed its position by agreeing prior to Chase I to enter a consent 

judgment giving the Chase lien priority. PSB/First Michigan’s change of heart could have been 

based on the evidence reviewed during discovery, convincing them that they would not be 
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successful at trial. Chase’s decision to abandon its lawsuit after Chase I and Zair is also not a 

reflection on the merits of the case. The evidence still could have supported the priority of 

Chase’s lien; however, Chase could have conducted a cost-benefit analysis and decided it no 

longer wanted to pursue its rights in this case. 

 And no terms or conditions were required to protect the Zairs. See African Methodist, 38 

Mich App at 212. The Zairs’ position is “no worse than before the circuit court action.” 

McKelvie v City of Mount Clemens, 193 Mich App 81, 86; 483 NW2d 442 (1992). Before Chase 

filed suit, the Zairs had no property interest. That property interest was briefly restored during 

the proceedings. However, the Zairs had done nothing during the proceedings to restore their 

property rights permanently. For example, the Zairs made no attempt to redeem their property 

and have never challenged the propriety of the PSB foreclosure process. Accordingly, the Zairs 

ended the lawsuit in the same position as they began, holding over on property on which they 

had no legal right to reside. And it was the Zairs’ decision to incur any legal fees. They did not 

need to take part in the priority dispute. They chose to do so, filed an appeal, and extended the 

proceedings, only to reach a point where they had absolutely no defense to restore their property 

rights. Chase did not cause the Zairs’ legal fees and costs, they brought those fees on 

themselves. 

 We affirm. Appellees, as the prevailing parties, may tax costs pursuant to MCR 7.219. 

/s/ Douglas B. Shapiro 

/s/ Elizabeth L. Gleicher 

/s/ Amy Ronayne Krause