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### STATE OF MICHIGAN

COURT OF APPEALS

NANCY J. GARDNER,

Plaintiff-Appellant, UNPUBLISHED December 20, 2016

v No. 328185
St. Clair Circuit Court POTESTIVO & ASSOCIATES P.C., FEDERAL NATIONAL MORTGAGE ASSOCIATION, QUICKEN LOANS, INC., FLAGSTAR BANK FSB, and SHERIFF TI M DONNELLON, LC No. 15-000435-PZ

Defendants-Appellees.

NANCY GARDNER,

Plaintiff-Appellant,

v No. 329752
St. Clair Circuit Court UNITED STATES OF AMERICA, FLAGSTAR BANK, QUICKEN LOANS, FEDERAL NATIONAL MORTGAGE ASSOCIATION, POTESTIVO & ASSOCIATES P.C., ST. CLAIR COUNTY SHERIFF DEPARTMENT, and STATE OF MICHIGAN, LC No. 15-001505-CH

Defendants-Appellees.

Agent Nancy on behalf of NANCY J. GARDNER and Agent Don on behalf of DONALD M. GARDNER,

Plaintiffs-Appellants,

v No. 330964
St. Clair Circuit Court
CHIEF EXECUTIVE OFFICER FOR THE
UNITED STATES and CHIEF EXECUTIVE LC No. 15-002607-CZ-2- OFFICER FOR THE FEDERAL NATIONAL MORTGAGE ASSOCIATION,

Defendants-Appellees.

Before: S ERVITTO , P.J., and S TEPHENS and R ONAYNE K RAUSE , JJ.

P ER C URIAM

.
In Docket No. 328185, plaintiff, Nancy Gardner, appeals as of right an order entered by St. Clair Circuit Court Judge Dan iel J. Kelly, granting summary disposition of plaintiff’s declaratory judgment action in favor of defendants, Potestivo & Associates P.C., Federal National Mortgage Association (“Fannie Mae”), Quicken Loans, In c. (“Quicken”), Flagstar Bank, FSB, and Sheriff Tim Donnell on, and discharging and relea sing a claim of lien executed by plaintiff against real prope rty located at 7221 State Road, Burtchville, Michigan.

In Docket No. 329752, plaintiff appeals as of right an order e ntered by St. Clair Circuit Court Judge Michael L. West, gran ting summary disposition of pl aintiff’s foreclosure action in favor of defendants, the United States of America, Flagstar Ban k, Quicken, Fannie Mae, Potestivo & Associates, P.C., th e St. Clair County Sheriff’s De partment, and the State of Michigan.

In Docket No. 330964, plaintiffs, “Agent Nancy on behalf of Na ncy J. Gardner” and “Agent Don on behalf of Donald M. Gardner,” appeal as of right another order entered by Judge Kelly dismissing a quitclaim deed action filed against defendan ts, the Chief Executive Officer
for the United States of America and the Chief Executive Office r for Fannie Mae. The court
dismissed the action be cause “Agent Nancy” and “Agent Don” are not legally recogn ized entities and neither had the capacity to br ing an action before the court.

We affirm in all three appeals.

I. BACKGROUND FACTS

The current cases represent three of many legal actions, broug ht in both state and federal court, related to the real property located at 7221 State Road, Burtchville, Michigan (“the property”). The Sixth Circuit C ourt of Appeals summarized the historical facts l eading up to the
instant cases as follows:

On May 18, 2007, Gardner executed a note in the amount of $215 ,200.00 to obtain a loan from Flagstar t o purchase real property common ly known as 7221 State Road, Burtchville, Michigan 48059. As security for the l oan, Gardner executed a mortgage on the property. On May 22, 2007, the mortg age was recorded with the St. Clair County Register of Deeds, in Liber 3723 Page 10. Both the note and mortgage were in favor of Flagstar, as lender , with Mortgage Electronic Registration Systems, Inc. (MERS) acting solely as t he nominee for Flagstar and its successors and assigns. The mortgage provided that MERS is the-3- mortgagee under the mortgage. O n March 4, 2013, the mortgage w as assigned from MERS, as nominee for Flagstar and its successors and assig ns, to Quicken. The assignment was recorded with the St. Clair County Register of Deeds.

Gardner defaulted on the note for nonpayment. On February 11, 2013, Potestivo, a debt collector acting on behalf of Quicken, served a pre-foreclosure notice on Gardner notifying her that default was made for nonpayment and that
the amount due under the note was $207,350.35. On March 6, Gard ner responded, requesting a meeting with Potestivo to attempt to work out a mo dification of the mortgage loan. On March 12, Pote stivo replied, informing Gardn er that it was the designee for Quicken with regard to her loan pursuant to sectio n 600.3205(a)(1)(c) of the Michigan Compiled Laws. Potestivo adv ised that to initiate a modification, Gardner would need to complete and ret urn certain financial paperwork along with any supporting documentation wit hin seven days. Potestivo also advised that the ninety-day hold on foreclosure proceedings would expire on May 13, 2013. Gardner responded on March 16. Instea d of providing the documentation Potestivo requested, Gardner requested docume ntation of Potestivo’s legal right to negotiate with her and to enter into a modification agreement under the terms of the mortgage. On March 25, Potest ivo replied, stating that its response was in connection with Gardner’s requ est that Quicken review the loan for a possible modification and again requestin g that Gardner complete and return certain financial paperwork along with supp orting documentation within seven days. The letter again advised that the ninety-day hold on foreclosure proceedings would expire on May 13, 2013. On April 8, Potestivo again wrote to Gardner, noting the receipt of her Mar ch 16 letter, explaining that it was the designee for Quicken, and advising t hat it must receive Gardner’s documentation by April 12, 2013. On May 23, Potestiv o again wrote to Gardner, responding to her request for information about the mortgage loan. Potestivo reiterated that it was the designee for Quicken and i nformed Gardner that on March 4, 2013, the mortgage was assigned from MERS as n ominee for Flagstar to Quicken. Potestivo enclosed copies of the note, mo rtgage, assignment, and correspondence from its office. The letter also informed G ardner that Quicken was entitled to enforce the mortgage as the mortgagee o f record, that the outstanding balance of the loan was $210,270.10, and that a for eclosure sale was scheduled for May 30, 2013. The foreclosure notice was posted on the door of the property and published four times in the Port Huron Times H erald on April 19, April 25, May 3, and May 10, 2013. A sheriff’s sale was he ld on May 30, 2013. Quicken was the highest bidder and received the sheriff’ s deed to the property. Gardner had six months to redeem the property, and t he redemption period expired on November 30, 2013.

A day before the sheriff’s sal e, on May 29, 2013, Gardner file d a lawsuit in St. Clair County circuit court against Flagstar, Quicken, an d Potestivo. Gardner framed her complaint in three counts. Count I sought a declara tory judgment of no debt owed the defendants because they “failed to satisfy the ir burden of showing they are entitled to enforce the debt.” In Count I, Ga rdner alleged multiple challenges to the foreclosure sale: (1) that the defen dants failed to-4- comply with Article 3 of the UCC; (2) that they lacked “standin g” to foreclose on her mortgage because the defendants failed to endorse the note and were not a holder in due course; (3) that she was entitled to a copy of th e original note before Quicken could foreclose; and (4) that Flagstar violated section 6 of the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2605, bec ause it sold the note shortly after it was originated. Count II alleged that th e mortgage was an unenforceable contract of adhesion. Count III sought injunctiv e relief barring the defendants from proceeding with the foreclosure. On June 19, Q uicken and Potestivo timely removed the case to federal district court bec ause Gardner alleged that Flagstar violated the REPSA, 12 U.S.C. § 2605. Fl agstar consented to the removal. Quicken and Potestivo moved to dismiss pursuan t to Rule 12(b)(6). Flagstar concurred in the motion. On August 27, 201 3, the district court granted the defendants’ motion and dismissed Gardner’s ca se for failure to state a claim upon which relief can be granted pursuant to Fed. R.Civ.P. 12(b)(6). Gardner timely appealed. [ Gardner v Quicken Loans, Inc , unpublished opinion of the Sixth Circuit Court of App eals, issued June 2, 2014 (Docket No. 13-2257) (citation omitted).]

On June 2, 2014, the Sixth Circuit Court of Appeals affirmed th e federal district court’s order granting the motion to dismiss. On June 12, 2014, Quicken tran sferred the property to Fannie Mae by quitclaim deed for “the full consideration of One Dollar ($1.00).”

The instant appeals arise from cases filed in the St. Clair Ci rcuit Court after the Sixth
Circuit’s decision.

II. DOCKET NO. 328185

Plaintiff first argues that Judge Kelly erred by granting summ ary disposition to
defendants on the basis of a l ack of standing in her declarator y judgment action. We disagree.

“This Court reviews de novo a circuit court’s summary disposit ion ruling.” Dalley v Dykema Gossett, PLLC , 287 Mich App 296, 304; 788 NW2d 679 (2010). Whether a party has standing to assert a claim also poses a question of law that we review de novo. Heltzel v Heltzel

, 248 Mich App 1, 28; 638 NW2d 123 ( 2001). Likewise, questions o f law related to declaratory judgment actions are reviewed de novo, but a decision regarding declaratory relief is reviewed
for an abuse of discretion. Barrow v Detroit Election Comm , 305 Mich App 649, 662; 854 NW2d 489 (2014). “[A]n abuse of discretion occurs only when th e trial court’s decision is outside the range of reasonabl e and principled outcomes.” Id. (citation omitted).

A motion for summary dispositi on asserting as its basis the do ctrine of standing invokes a prudential doctrine that “focuses on whether a litigant ‘is a p roper party to request adjudication of a particular issue and not whe ther the issue itself is justi ciable.’ ” Pontiac Police & Fire Retiree Prefunded Group Health & Ins Trus t Bd of Trustees v Pontiac No 2 , 309 Mich App 611, 620-621; 873 NW2d 783 (2015) (citations omitted). “A motion ba sed on such a defense would be within MCR 2.116(C)(8) or MCR 2.116(C)(10), depending on the pleadings or other circumstances of the particular case.” Id. (citation omitted). Here, defendants brought motions pursuant to MCR 2.116(C)(8), a nd Judge Kelly cited MCR 2.116(C) (8) in his opinion.-5- However, Judge Kelly’s opinion was in part based upon an analy sis of documentary evidence beyond the pleadings. Therefore, we treat the motions as having also been brought, and granted, pursuant to MCR 2.116(C)(10), and we too examine the p leadings and documents on which the parties and the court relied. Kefgen v Davidson , 241 Mich App 611, 616; 617 NW2d 351 (2000).

A motion for summary disposition pursuant to MCR 2.116(C)(10) “tests the factual sufficiency of the complaint.” Joseph v Auto Club Ins Ass’n , 491 Mich 200, 206; 815 NW2d 412 (2012). “In evaluating a motion for summary disposition brough t under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to th e party opposing the motion.”
Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999). Summary disposition is proper under MCR 2.116(C)(10) where there is no “genuine issue regardi ng any material fact.” Id

.
MCR 2.605 governs actions seeking a declaratory judgment. “In a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory ju dgment, whether or not other relief is or could be sought or granted.” MCR 2.605(A)(1). A judgmen t for declaratory relief is not precluded where there exists a nother adequate remedy. MCR 2.60 5(C). A declaratory judgment is a procedural remedy that constitutes a binding and conclusiv e adjudication of the rights and status of the litigants. Associated Builders & Contractors v Dep't of Consumer & Indus Servs

Dir , 472 Mich 117, 124; 693 NW2d 374 (2005), overruled in part on other grounds in Lansing Sch Ed Ass’n v Lansing Bd of Ed , 487 Mich 349, 371 n 18; 792 NW2d 686 (2010). MCR 2.605 incorporates traditional restrictions on justiciability, such a s standing, ripeness, and mootness.
Id . at 125.

In Bryan v JPMorgan Chase Bank , 304 Mich App 708, 713; 848 NW2d 482 (2014), this Court explained:

Pursuant to MCL 600.3240, after a sheriff’s sale is completed, a mortgagor may redeem the property by paying the requisite amoun t within the prescribed time limit. . . . “Unless the premises described in such deed shall be redeemed within the time limited for such redemption as hereina fter provided, such deed shall thereupon become operative, and shall vest in t he grantee therein named, his heirs or assigns, all the right, title, and interest which the mortgagor had at the time of the execution of the mortgage, or at any tim e thereafter . . . .” MCL 600.3236. If a mortgagor fails to avail him or herself of the right of redemption, all the mortgagor’s rights in and to the property a re extinguished. [Citation omitted.]

In Bryan , the plaintiff sued the defendant bank, which was both the len der of the loan that secured the mortgage and the purchaser of the property followin g the sheriff’s sale, to quiet title and for unjust enrichment, deceptive or unfair practices, and w rongful foreclosure, alleging that
the defendant was not the owner of the indebtedness secured by the mortgage or the servicing agent as required by Michigan law because the defendant failed to record its interest in the property before the sheriff’s sale. Id . at 710-711. The plaintiff argue d that the sheriff’s sale was
void ab initio. Id . at 711. The plaintiff filed her complaint after the expirati on of the redemption-6- period, but the plaintiff argued that she had standing to sue b ecause of fraud or irregularity in the foreclosure process due to the defendant’s failure to record it s mortgage interest before the sale.
Id . The Bryan Court held that summary disposition for the defendant was prop er because the plaintiff lacked standing to bring her claims. Id . at 715. Moreover, the plaintiff failed to demonstrate how any irregularity in the recording of the mortga ge prejudiced her position to preserve an interest in the property. Id. at 717-718.

As Judge Kelly found, this case is analogous to Bryan . There is no genuine issue of material fact that plaintiff di d not redeem the property within the statutory redemption period and the redemption period expired before she filed this declaratory judgment action. Thus, pursuant

to Bryan , plaintiff never had standing t o bring her claims. Once the r edemption period ended, the sheriff’s deed vested in Quicken, and Quicken was assigned all the “right and title” of plaintiff that existed at the time she executed the mortgage. Hanson v Huetter , 339 Mich 130, 133-134; 62 NW2d 663 (1954); see also MCL 600.3236. Fannie Mae later acquired that right and title by quitclaim deed. Because plaintiff lacked standing to raise any questions about the property in the declaratory judg ment action (i.e., the relation ship between defendants, the identity of the noteholder, and whether she was entitled to a f inancial remedy from defendants), summary disposition of plaintiff’ s claim was proper pursuant to MCR 2.116(C)(10). 1

Plaintiff makes numerous unpres erved claims on appeal, includi ng allegations that: (1) she did not sign the note, “Agent Nancy” signed it, (2) the def ault notice mailed to her was unsigned, and (3) default was not proven beyond a reasonable do ubt at a trial by jury. “This Court will generally decline to a ddress unpreserved issues unle ss a miscarriage of justice will result from a failure to pass on them, . . . the question is on e of law and all the facts necessary for its resolution have been presented, or [it is] necessary for a proper determination of the case.” Autodie, LLC v City of Grand Rapids , 305 Mich App 423, 431; 852 NW 2d 650 (2014) (quotation marks and citation omitted). No miscarriage of justice will re sult from the failure to address plaintiff’s claims because, again, there is no genuine issue of material fact that plaintiff lacked standing to bring them after the expiration of the redemption p eriod.

Plaintiff also raises the additional unpreserved claim that th e transfer between Quicken and Fannie Mae for one dollar was constructive fraud and argues that fraud constitutes grounds for relief from judgment under MCR 2.612(C)(1). Indeed, after the redemption period, a court may equitably extend a mortgagor’s ability to file suit asserti ng rights or interest in the property

1 On appeal, defendants focus on the alternative basis for Judge Kelly’s dismissal that plaintiff failed to satisfy the pleading requirements under the court rul es. Given the lack of supporting facts required by MCR 2.111(B)(1) and plaintiff’s failure to am end her complaint, Judge Kelly did not err by concluding that summary disposition was also war ranted on this basis under MCR 2.116(C)(8). Although defendants a ssert that summary dispositi on may also be affirmed on the alternative grounds of collateral estoppel and res judicata, th eir arguments are unpreserved and
we decline to review them. Ligon v Detroit , 276 Mich App 120, 129; 739 NW2d 900 (2007) (noting that an appellate court may decline to review an issue that was not raised in or decided by the trial court).-7- only upon a strong showing of fraud or irregularity. Sweet Air Investment, Inc v Kenney , 275 Mich App 492, 497; 739 NW2d 656 (2007); Schulthies v Barron , 16 Mich App 246, 247-248; 167 NW2d 784 (1969). “[D]efects or irregularities in a foreclo sure proceeding result in a foreclosure that is voidable, not void ab initio .” Kim v JPMorgan Chase Bank, NA , 493 Mich 98, 115; 825 NW2d 329 (2012). Thus, parties seeking to set asi de a foreclosure sale must show not only fraud or irregularity in the foreclosure process, they also “must show that they were prejudiced” by the alleged fraud or irregularity. Id . “To demonstrate such prejudice, they must show that they would have been in a better position to preserve their interest in the property absent” the fraud or irregularity. Id . at 115-116.

The allegedly fraudulent transf er plaintiff cites occurred wel l after the sheriff’s sale and after expiration of the redemption period. Constructive fraud requires a misrepresentation to induce detrimental reliance, Gen Electric Credit Corp v Wolverine Ins Co , 420 Mich 176, 188- 190; 362 NW2d 595 (1984), but plaintiff does not allege that de fendants made a representation of any kind to her regarding this deed transfer. She also make s no argument establishing that she would have been in a better posit ion to preserve her interest a bsent this transfer or the alleged fraud. Therefore, even if plaintiff had properly preserved her claim, she has failed to demonstrate the requisite prejud ice to set aside the foreclosur e sale.

Plaintiff also argues on appeal that Judge Kelly lacked author ity to discharge the lien because only the declaratory judgment action was before him and nobody raised the issue of the claim of lien. Again, we disag ree. MCR 2.605(F) provides that “[f]urther necessary or proper relief based on a declaratory judgment may be granted, after re asonable notice and hearing, against a party whose rights have been determined by the declar atory judgment.” Shuler v Mich Physicians Mut Liability Co , 260 Mich App 492, 520; 679 NW2d 106 (2004). “[T]he language of MCR 2.605 is permissive rather than mandatory; thus, it rest s with the sound discretion of the court whether to grant declaratory relief.” PT Today, Inc v Comm’r of the Office of Fin & Ins

Servs , 270 Mich App 110, 141; 715 NW2d 398 (2006). “Actions for dec laratory relief are intended to minimize avoidable losses and the unnecessary accru al of damages.” Durant v Michigan , 456 Mich 175, 208-209; 566 NW2d 272 (1997).

Once the trial court ruled that plaintiff lacked any standing related to the property, it had discretion under MCR 2.605(F) to grant further necessary relief to minimize further losses or damages. Specifically, because plaintiff’s rights in the prope rty were extinguished, she was not entitled to reimbursement for investments in the property. Dis charge of the claim of lien related to those investments therefore avoided further damages to defen dants by the cloud on the title to the property. Plaintiff had noti ce of the discharge of the cla im of lien, and a chance to object to the discharge in a written pleading and at a hearing. Thus, Ju dge Kelly did not abuse his discretion by discharging the c laim of lien pursuant to MCR 2.6 05(F).

III. DOCKET NO. 329752

In Docket No. 329752, plaintiff ag ain asserts that Judge Kelly erred by discharging the claim of lien and, therefore, the discharge was not a proper ba sis for Judge West’s dismissal of
the foreclosure of the claim of lien action. As we concluded e arlier, Judge Kelly did not abuse his discretion by discharging th e claim of lien. In the forecl osure action, defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). Judge West decided-8- this case under MCR 2.116(C)( 10) looking beyond the pleadings, specifically at Judge Kelly’s order discharging the claim of lien. Kefgen , 241 Mich App at 616. As a result of the discharge, there was no genuine issue of material fact remaining regarding the claim of lien and defendants were entitled to judgment as a matter of law. Judge West did n ot err by granting defendants’ motion for summary disposition. 2

Plaintiff claims that summary disposition violated her constit utional rights to a jury trial, Const 1963, art 1, § 14, prohibitions against involuntary servi tude, US Const, Am XIII, and Const 1963, art 1, § 9. But “[s]ummary disposition does not vi olate a party’s right to a jury trial because that right extends only to cases in which there are gen uine issues of fact for the jury. Lowrey v LMPS & LMPJ, Inc , 313 Mich App 500, 507; 885 NW2d 638 (2015). Moreover, pursuant to the mortgage, plainti ff had an obligation to mainta in the property to prevent deterioration. To the extent that plaintiff claims that she pe rformed services, such as the removal of trees, painting, and lawn car e, plaintiff had alternatives t o personally performing these services, such as hiring contractors. Thus, even if the altern atives were distasteful or less attractive than the services, she cannot establish involuntary servitude. Blair v Checker Cab Co

, 219 Mich App 667, 673; 558 NW2d 439 (1996). Because plaintiff cannot establish plain error with regard to these constitutiona l claims, reversal is not req uired.

Plaintiff also objects to Judge Kelly’s refusal to recognize h er as “Agent Nancy” at the June 29, 2015 hearing in the declaratory judgment action. The following exchange occurred at that hearing:

Plaintiff . For the record, Agent Nancy respectfully objects to the following:

Trial court . I don’t recognize you as an a gent of yourself. I recognize you as a person that has come before this Court and has submitted t o the Court’s jurisdiction. You may proceed in that fashion.

Plaintiff . Okay. Agent Nancy objects to - -

Trial court . Again, you’re not an Agent.

Plaintiff . Nancy.

Trial court . You’re Mrs. Gardner.

Plaintiff claims that Judge Kelly violated her right to the fre edom of speech, US Const, Am I, and Const 1963, art 1, § 5, and her religious beliefs, Const 19 63, art 1, § 4. She explains that

2 In addition, plaintiff’s lack of standing was a valid alternat ive basis for dismissing the foreclosure action under MCR 2.116( C)(10). Defendants again as sert that summary disposition was appropriate on the grounds of collateral estoppel and res j udicata, but their arguments are unpreserved and we decline to review them. Ligon , 276 Mich App at 129.-9- Agent Nancy is an agent of the Almighty God acting on behalf of “property you refer to as Nancy J. Gardner.”

An “agent” is “ ‘a person having express or implied authority to represent or act on behalf of another person, who is called his principal.’ ” Stephenson v Golden , 279 Mich 710, 734; 276 NW 849 (1937), quoting Bowstead, Agency (4th ed), p 1. Accordi ng to this definition, plaintiff could not serve as an agent for herself, only “another person.” And even if plaintiff could serve as an agent for herself, she could not appear in court in that capacity unless she was a licensed attorney. See MCL 600.916 (unaut horized practice of law); Cobb v Judge of Superior Court of Grand Rapids , 43 Mich 289; 5 NW 309 (1880) (a party to an action in a court of record cannot appear therein by an “agent” not licensed as an attorney). The refore, Judge Kelly did not err by instructing plaintiff to refer to herself as “Mrs. Gardner” ins tead of Agent Nancy. Moreover, even if plaintiff could establis h a violation of her constituti onal rights from this instruction, she
cannot establish that the violati on was prejudicial. She does not argue that she was denied the opportunity to make any arguments. Rather, following this inte rchange, plaintiff reiterated the contents of her complaint and addressed defendants’ arguments. Regardless of her constitutional claim, the claim of lien had already been discharged, plaintiff lacked standing to make claims against the property, and su mmary disposition was proper.

IV. DOCKET NO. 330964

In Docket No. 330964, plaintiffs argue that Judge Kelly erred by dismissing their quitclaim deed action because they lacked the capacity to sue a s “Agent Nancy” and “Agent Don.” In his order, Judge Kelly d id not cite a c ourt rule as t he basis for his decision. Defendants filed a motion for summary disposition under MCR 2.116(C)(7), ( 8), and (10), not MCR 2.116(C)(5) (capacity to sue). It would therefore appear from this context that Judge Kelly granted summary disposition pursuant to MCR 2.116(I)(1) (“If th e pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits o r other proofs show that there is no genuine issue of material fact, the court shall render judgment without delay.”). Kefgen , 241 Mich App at 616.

MCR 2.201(C) pertains to the cap acity to sue and provides:

(C) Capacity to Sue or be Sued.

(1) A natural person may sue or be sued in his or her own name

.
(2) A person conducting a business under a name subject to cer tification under the assumed name statute may be sued in that name in an a ction arising out
of the conduct of that business.

(3) A partnership, partnership association, or unincorporated voluntary association having a distinguishing name may sue or be sued in its partnership or association name, in the names of any of its members designated as such, or both.

(4) A domestic or a foreign cor poration may sue or be sued in its corporate name, unless a statute provides otherwise.-10- (5) Actions to which the state or a governmental unit (includi ng but not limited to a public, municipal, quasi-municipal, or governmenta l corporation, an unincorporated board, a public body, or a political subdivision ) is a party may be brought by or against the state or governmental unit in its own name, or in the
name of an officer authorized to sue or be sued on its behalf. An officer of the state or governmental unit must be sued in the officer’s offici al capacity to enforce the performance of an official duty. An officer who su es or is sued in his or her official capacity may be described as a party by officia l title and not by name, but the court may require the name to be added.

Likewise, MCL 600.2051(1) provides, “Any natural person may sue or be sued in his own
name.” 3 There is no evidence in the record that “Agent Nancy” or “Age nt Don” are Nancy J.
Gardner’s and Donald G ardner’s own names. Relying on the court rule’s use of the word “may,” plaintiffs argue that the capacities in MCR 2.201(C) do not amo unt to an exclusive list and others have the capacity to sue. The w ord “may” does, in fact, signif y a permissive provision. Walters
v Nadell , 481 Mich 377, 383; 751 NW2d 431 (2008). But the word “may” p ermits the listed persons or entities, including a natural person in his or her o wn name, to be sued. Nothing in the plain language of the court rule suggests that this is a non-ex clusive list. On the contrary, “[t]his Court recognizes the maxim expressio unius est exclusio alterius ; that the express mention in a statute of one thing implies the exclusion of other similar thi ngs.” Bradley v Saranac Community Schools Bd of Ed , 455 Mich 285, 298; 565 NW2d 650 (1997). Because the court rule does not include a provision for plaintiffs to sue or be s ued under the circumstances they allege—persons acting as uncertified agents on behalf of themse lves—they cannot establish the capacity to sue under MCR 2.201(C). 4

Referencing the Bible and thei r service to God, plaintiffs als o claim some capacity to sue as “personal representatives ” under MCR 2.201(B), which provide s, in relevant part:

(B) Real Party in Interest. A n action must be prosecuted in t he name of the real party in inter est, subject to the f ollowing provisions :

3 Black’s Law Dictionary (9th ed) defines the term “natu ral person” as “[a] human being .”

4 Plaintiffs argue that an agent falls within the definition of “person” in the Elliot-Larsen Civil Rights Act, MCL 37.2101 et seq ., and the Uniform Commercial Code (UCC), MCL 440.1101 et

seq ., but even if those definitions apply to MCR 2.201(C), “Agent Nancy” and “Agent Don” are not plaintiffs’ own names. Notably, plaintiff relied on the UC C in the prior Sixth Circuit appeal and that court concluded that the UCC does not apply to mortgag e foreclosures. Gardner , unpub opn at 365.

Plaintiffs cite the definition of “agency” in MCR 7.102(1) (“ ‘agency’ means any governmental entity other than a ‘trial court,’ the decisions o f which are subject to appellate review in the circuit court”) a nd argues that “Agent Nancy” and “Agent Don” are government entities belonging to the United States of America. But again, the record does not establish that “Agent Nancy” and “Agent Don” a re plaintiffs’ own names under M CR 2.201(C).-11- (1) A personal representative, guardian, conservator, trustee of an express trust, a party with whom or in whose name a contract has been m ade for the benefit of another, or a person authorized by statute may sue i n his or her own name without joining the party for whose benefit the action is brought.

But again, there is no evidence in the record that “Agent Nancy ” or “Agent Don” were legally appointed as a personal representative, or to act in some other representative capacity, for Nancy J. Gardner and Donald Gardner. See, e.g., MCL 700.1403, MCL 70 0.3307, and MCL 700.3614. Accordingly, plaintiffs have not demonstrated that they had the capacity to sue in a representative capacity. See Warren v Howlett , 148 Mich App 417; 383 NW2d 636 (1986) (the plaintiff lacked the capacity to sue on behalf of the decedent’ s estate because he was not appointed as personal representative until nine days after fili ng suit).

Plaintiffs claim that they could sue as “Agent Nancy” and “Ag ent Don” because “Agent Nancy” signed the mortgage and note. Plaintiffs’ claim is inco nsistent with the record. The copies of the mortgage and note in the lower court records were signed by “Nancy J. Gardner.” Therefore, neither “Agent Nancy” nor “Agent Don” have any inter est in the controversy by
virtue of those documents.

Plaintiffs claim that Judge Kelly erred by reasoning that only attorneys could represent parties. But MCL 600.916 prohibits the unauthorized practice o f law. By holding themselves out as agents representing Nanc y J. Gardner and Donald Gardner and filing legal documents as such, rather than parties appearing in propria persona , plaintiffs effectively represented themselves as attorneys wit hout license and authority.

In their reply brief on appeal , plaintiffs object to Fannie Ma e’s attorney’s involvement as a third-party intervener. Plaintiffs’ argument is inconsistent with the record on appeal. Nicholas Tatro filed an appearance as an a ttorney for Fannie Mae consist ent with MCR 7.204(G).

In sum, Judge Kelly properly di smissed plaintiffs’ action for lack of capacity to sue under MCR 2.116(I)(1). In addition, just as in Docket Nos. 328185 an d 329752, plaintiffs’ lack of standing was a valid alternative basis for dismissing the actio n under MCR 2.116(C)(10).

V. SANCTIONS

In all three cases, defendants argue that this Court should im pose sanctions for a vexatious appeal. Defendants’ r equests are not properly before this Court, because they were not made in a motion filed under MCR 7.211(C)(8). See MCR 7.216(C) (1); Bonkowski v Allstate

Ins Co , 281 Mich App 154, 181; 761 NW2d 784 (2008). Pursuant to MCR 7.211(C)(8), defendants may file a motion requesting damages or other discip linary action “at any time within 21 days after the date of the ord er or opinion that disposes of the matter that is asserted to have been vexatious.” Therefore, defe ndants’ request is denied with out prejudice.

Affirmed.

/s/ Deborah A. Servitto /s/ Cynthia Diane Stephens /s/ Amy Ronayne Krause