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### STATE OF MICHIGAN

COURT OF APPEALS

In re PETITION OF ISABELLA COUNTY

TREASURER

.

ISABELLA COUNTY TREASURER,

Petitioner-Appellant/CrossAppellee, UNPUBLISHED April 18, 2017

v No. 329858
Isabella Circuit Court ESTATE OF TIMOTHY SCOTT PUNG, LC No. 2104-011664-CF

Respondent-Appellee/CrossAppellant.

Before: M. J. K ELLY , P.J., and S TEPHENS and O’B RIEN , JJ.

P ER C URIAM

.

Petitioner, the Isabella County Treasurer, appeals as of right the circuit court’s opinion and order setting aside a judgment of foreclosure against respo ndent, the Estate of Timothy Scott Pung, claiming that the circuit court erred in finding that res pondent’s due-process rights were violated. Respondent cross-appeal s the same opinion and order, claiming that the circuit court erred in finding that petitioner had complied with the statutor y-notice requirements of the General Property Tax Act (GPTA), MCL 211.1 et seq ., and concluding that it lacked jurisdiction to set aside the judgment of foreclosure on grounds other than a due-process violation. We

reverse.

This matter is before this Court for the second time in the pa st several years, In re Petition of Isabella Co Treasurer , unpublished opinion per curiam, issued February 10, 2015 (Docket No. 318616), and we need not delve into the ongoing tax disputes between petitioner and respondent. Suffice it to say that petitioner has repeated ly sought, and respondent has repeatedly denied, a principal-residence exemption (PRE) for th e subject property, which is located at 3176 St. Andrews Drive in Mt. Pleasant, Michigan. U ltimately, this Court, in affirming the Tax Tribunal, held that respondent was entitled t o a PRE for the subject property for the 2007, 2008, 2009, 2010, and 2011 tax years. At issue i n this case is the 2012 tax year.-2- While litigation with respect t o the 2010 and 2011 tax years r emained pending, petitioner issued and respondent received the 2012 tax bill. According to that bill, a PRE was granted for the subject property for the 2012 tax year. However, when Mich ael W. Pung, respondent’s personal representative, went to pay the bill, he was informed that a PRE was actually denied, and a revised tax bill denying a PRE was issued shortly thereaf ter. Respondent paid the amount owed according to the original bill but refused to pay the addi tional amount owed according to the revised bill. As a result, pe titioner pursued foreclosure on the subject property.

The record reflects that, over the next several months, petiti oner sent a variety of notices to “Timothy S Pung” at Michael’s address, 5475 Blue Heron in Al ma, Michigan. A May 2013 notice sent to that address provided that non-payment of the ad ditional amount would result in loss of the property. An August 2013 notice provided the same information. A January 2014 notice, which is accompanied by a return receipt signed by “Tho mas Ducheny” in the record, provided the same information as well. The January 2014 notice also appears to have been sent to the subject property, 3176 St. Andrews Drive, and addressed to the “current resident.” In April 2014, petitioner recorded a c ertificate of forfeiture wit h the register of deeds with respect to the subject property. Two months later, in June 2014, petition er filed a foreclosure petition with respect to the 2012 tax year, and that petition identified the subject property as subject to
foreclosure. Several months lat er, in November 2014, Steven Pi ckens, the Isabella County Treasurer, personally visited the subject property to inform th e occupants of the pending forfeiture. When no one answered the door, Pickens conspicuous ly placed a copy of the notice in a bright red packet on the front door, and a photograph of t he placed packet is available in the record. In December 2014, petitioner sent two more notices via certified mail to “Timothy S. Pung” and “Michael Pung” at Mich ael’s address, and both were si gned as having been received by “Allison Pung.”

Petitioner also published notices in The Morning Sun , a newspaper published in Isabella, Clare, and Gratiot Counties, on January 7th, 14th, and 21st of 2015. These notices identified the subject property as property sub ject to foreclosure as follows:

Parcel#: 14-120-00-004-00 Amount to Redeem: $2,507.67 Year(s): 2012
Address: 3176 SAI NT ANDREWS MOUNT PLEASANT, MI 48858 Parties of interest according to records of the County Treasure r: PUNG TIMOTHY S
BANK OF ALMA
FIRSTBANK
MUTUAL SAVINGS BANK
PUNG MICHAEL W Legal Description:

T14N R4W SEC 19 POINTE ROYALE
SUBD. LOT 4 Union TWP

According to these notices, show -cause hearings were scheduled for January 22, 2015, and judicial-foreclosure hearings wer e scheduled for February 20, 2 015. Respondent did not appear-3- on either hearing date, and a judgment of foreclosure was enter ed on February 20, 2015. Respondent did not redeem the s ubject property during the redem ption period that followed.

On May 18, 2015, respondent filed a motion to set aside the ju dgment of foreclosure or, in the alternative, f or writ of mandamus to force petitioner to cancel foreclosure. According to respondent, it did not receive any notice of the foreclosure un til a letter dated April 2, 2015, which explained that the subject property had been forfeited du e to nonpayment of property taxes. In a hearing on that motion, the circuit court determin ed that petitioner had complied with all of the applicable statutory-notice requirements set forth u nder the GPTA. However, because it concluded that respondent was deprived of its constitutional right to due process, it nevertheless granted respondent’s motion to set aside the forec losure. Specifically, the circuit court determined that petitioner had constructive knowledge of respondent’s failure to receive any notices with respect to the 2012 tax deficiency and eventua l foreclosure. Thus, it explained, petitioner should have taken further steps to ensure that respo ndent was aware of the foreclosure. As indicated above, petitioner ap pealed as of right, arguing th at no due-process violation occurred; respondent cross-appealed as of right, arguing that p etitioner’s notices failed to satisfy the applicable statutory requirements. Because we agree with p etitioner and disagree with respondent, we reverse the circu it court’s order setting aside the foreclosure.

Constitutional issues, including determinations as to whether a party’s due-process rights have been violated, are reviewed de novo. Sidun v Wayne Co Treasurer , 481 Mich 503, 508; 751 NW2d 453 (2008). The Due Process Clause of the Michigan Co nstitution provides, in pertinent part, as follows: “No person shall be . . . deprived of life, liberty or property, without due process of law.” Const 1963, art 1, § 17. “A fundamental requirement of due process . . . is ‘notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to presen t their objections.’ ” Sidun , 481 Mich at 509, quoting Mullane v Central Hanover Bank & Trust Co , 339 US 306, 314; 70 S Ct 652; 94 L Ed 865 (1950). Our Supreme Court has explained notic e requirements in the dueprocess context as follows:

Interested parties are “entitled to have the [government] emplo y such means ‘as one desirous of actually informing [them] might reasonably adop t’ to notify [them] of the pendency of the proceedings.” Dow v Michigan , 396 Mich 192; 240 NW2d 450 (1976), quoting Mullane

, supra at 315. That is, the means employed to notify interested parties mus t be more than a mere gesture; they must be means that one who actually desires to inform the interested parties might reasonably employ to accomplish actual notice. Mullane

, supra at 315. However, “[d]ue process does not require that a property owner receive actual n otice before the government may take his property.” Jones [ v Flowers , 547 US 220, 226; 126 S Ct 1708; 164 L Ed 2d 415 (2006)]. [ Sidun , 481 Mich at 509 (alterations in original).]

“If the government provides no tice by mail, due process requir es it to be mailed to an address reasonably calculated to reach the person entitled to n otice.” Sidun , 481 Mich at 514 (citation and internal quotation marks omitted). Information t he government possesses may affect whether the mailing address it uses is reasonably calcul ated to reach the intended recipient.

Id . at 510. It follows that the government is required to consid er unique information about the-4- recipient that is known to it. Id . at 511. For example, if a no tice is returned as undeliverabl e, the government must undertake reasonab le additional steps to notify the interested party. Jones , 547
US at 230. What additional measures are required depends on what informat ion the government

possesses. Id . at 234. Generally, reasonable steps may include posting noti ce on the property, addressing the letter to “occ upant,” or publishing notice, id . at 234-235; but, the government “is not required to go so far as to search[] for [an owner’s] new a ddress in the . . . phonebook and other government records such as income tax rolls,” Sidun , 418 Mich at 512 (citation and internal quotation marks omitted; alterations in original). Fu rther, the government cannot be
faulted if no additional r easonable steps exist. Jones , 547 US at 234.

In this case, the circuit cour t found that petitioner had “con structive notice” that respondent had not received notice of the pending foreclosure a nd should have taken additional steps reasonably calculated to provide that notice. According to the circuit court, these additional steps might have included additional notices via mai l or in-person statements at oral arguments during the litigation with respect to the 2010 and 20 11 tax years. Because petitioner failed to take these additional steps, the circuit court conclu ded, respondent’s due -process rights were violated. The circuit court additionally pointed to the f act “that Michael Pung had not made any response to the foreclosure proceedings, even though M r. Pung had, up until that point, responded to each decision made by petitioner, the Tax Tribunal , and [the circuit] court” as further support for its conclusi on that petitioner had construc tive notice of respondent’s lack of notice in the foreclosure proceedings. We disagree with this c onclusion.

Our review of the record reflects that petitioner mailed four notices to Michael’s address, 5475 Blue Heron, and two notices to the subject property, 3176 St. Andrews Drive, and physically posted notice at the subject property. None of thes e notices were returned as undeliverable, and there is no indication that petitioner had a ny reason to believe that an address other than these two would have proved any more successful. In fact, petitioner had used these
same addresses with success duri ng previous litigation with res pondent, e.g., the litigation involving the 2010 and 2011 tax years, and it was these address es to which the 2012 tax bill and revised tax bill were successfully sent. In our view, petition er had no reason to believe that the notices that were sent or delivered were not being received by respondent. Courts have long held that when a government sends notice and receives no indication in response that something has gone awry, which is precisely the case here, the notice is cons titutionally valid. See, e.g., Jones

, 547 US at 226. We therefore conclude that the notice provided to respondent by petitioner was constitutionally sufficient.

While we appreciate the unfortunate circumstances of this case , the circuit court’s decision is not supported in fact or law. Primarily, we are no t willing to assume that respondent did not receive notice simply because respondent had responded to other notices in the past but did not respond to these. Furthermore, even if we assume that respondent’s past conduct is indicative of whether it received adequate notice, we are unabl e to ascertain what additional steps petitioner might have tak en under the facts and circumsta nces of this case. Multiple notices were sent and delivered to Michael’s address and to the subject property, and the circuit court’s hypothesis that resending one or more of these notices might ha ve made a difference is not supported by the record. Additiona lly, we do not agree that pe titioner was required to mention the pending foreclosure with respect to the 2012 tax year durin g oral argument before this Court with respect to the 2010 and 2011 tax years. In short, due pro cess does not require personal-5- service, Dow , 396 Mich at 211, and petitioner should not be faulted for fai ling to take nonexistent or futile follow-up measures, Jones , 547 US at 234.

Accordingly, we reverse the ci rcuit court’s opinion and order setting aside the foreclosure on due-process grounds because respondent was not deprived of i ts constitutional right to due

process.

Respondent’s cross-appeal present s several alternative argumen ts for affirming the circuit court’s ultimate decision, i.e., its decision to set aside the foreclosure, but each argument is meritless. Respondent argues that the circuit court erred in c oncluding that petitioner complied with the statutory-notice requirements set forth in the GPTA, b ut our conclusion above is dispositive of this issue. See MCL 211.78(2) (providing that n oncompliance with statutorynotice requirements, alone, does not create a claim unless due- process requirements are also violated). Respondent also argues that the circuit court erred in concluding that it could not set aside the foreclosure for various other reasons, but we agree w ith the circuit court’s conclusion that it lacked authority to set the foreclosure aside absent a due-process violation. As the court acknowledged, respondent did not timely redeem the subject prop erty or appeal the foreclosure; rather, respondent elected to move to set aside the foreclosure after the redemption period had expired. Under these circumstances, the only way to invalidate the judgment of foreclosure was through a finding that its due-process rights were violated. In re Petition by Wayne Co

Treasurer , 478 Mich 1, 8-11; 732 NW2d 458 (2007).

Reversed and remanded for the entry of a judgment in petitione r’s favor. We do not retain jurisdiction.

/s/ Michael J. Kelly /s/ Cynthia Diane Stephens
/s/ Colleen A. O'Brien