* The Honorable David L. Bunning, United States District Judge for the Eastern District of Kentucky, sitting by designation. 1 NOT RECOMMENDED FOR PUBLICATION File Name: 06a0336n.06 Filed: May 11, 2006 No. 04-2396 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

LASALLE BANK, N.A, Plaintiff-Appellant,

v. MICHELLE S. LEGACY, MICHAEL JOUBRAN, YVONNE WILLIAMS, COURT STREET, INC. and KEITH CALLAN, Defendants-Appellees,

_________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN OPINION

Before: MOORE, SUTTON, Circuit J udges; and BUNNING, District Judge. * DAVID L. BUNNING, District Judge . This is an appeal from the district court’s dismissal of Plaintiff’s complaint on the basis of res judicata. Plaintiff LaSalle Bank (“LaSalle”) was the assignee of a mortgage on a parcel of property located in Flint, Michigan. Defendant Michelle Legacy (“Legacy”) acquired the property at a tax sale, and subsequently obtained a state court judgment quiet ing title to the property in her. Two years later, LaSalle filed a comp laint for foreclosure in federal district court, to recover on the outstanding mortgage. LaSalle argued that it was never se rved with notice of its right2 The terms “reconveyance” and “redemption” are used interchangeably in this Opinion.

3 The address of the property is 6420 North Genesee Road, Flint, Michigan 48506. (J.A. at 12). 2 to redemption, which is required by Michi gan statute, and thus retained its right of reconveyance. 2Legacy moved to dismiss, pursuant to Federal Rule of Civil Procedure 12(c), on the ground that LaSalle’s foreclosure action was barred by the prior state court judgment under the doctrine of res judicata. The district court found Legacy’s moti on well-taken, and dismissed LaSalle’s complaint on the basis of res judicata. LaSa lle filed its notice of appeal on November 8, 2004. (J.A. at 33). For the reasons that follow, we AFFIRM the district court’s dismissal of LaSalle’s claim. I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

On December 20, 1995, Ke ith Callahan executed a prom issory note and a mortgage in favor of Centennial Mortgage Company in the amount of $112,000.00, for property located in Flint, Michigan. 3(J.A. at 12, 15). Centennial assigned the mortgage to Plaintiff, LaSalle Bank, N.A., on January 3, 1996. (J.A . at 22). Callahan subsequently defaulted on the mortgage, as well as the property taxes. (J.A. at 9-10). A tax sale was held on May 4, 1999, where Defendant Michelle Legacy purchased the property and obtained a tax deed with regard to the 1996 taxes. (J.A. at 52). The property wa s not redeemed, and the State Treasurer conveyed the property to Legacy on May 25, 2000. (J.A. at 51).4 Legacy seems to dispute the allegation that it did not provide LaSalle with the requisite notice in its brief: “There is no record of oral or documentary evidence that Legacy did not give LaSalle Bank statutory notice of its right to redemption.” (Br. Appellee Legacy at iv). However, the Court finds that the converse is also true.

5 She had previously obtained a quiet title judgment against Callahan, Hall, and Centennial Mortgage. (J.A. at 90).

6 According to the district court’s opinion, “[o]n July 19, 2001, a representative of Plaintiff LaSalle, Heather Fellows, contacted Defendant Legacy’s attorney by telephone stating that LaSalle had no knowledge or information about the property.” (J.A. at 27). 3 Before she was able to perfect her tax deed, Legacy was required to give notice of the right to redeem the property to six parties: Keith Callahan, Tim Hall, d/b/a Root Away, Centennial Mortgage Company, the Internal Revenue Service, the Michigan Employment Security Commission, Yvonne Williams, and LaSalle . She properly notif ied all the parties, except LaSalle. 4(J.A. at 99, 100, 102-104, 106, 109-110, 113-14, 117-18). On July 2, 2001, Legacy filed a quiet titl e action against LaSalle in Michigan state court in order to obtain mark etable title. (J.A. at 51). 5LaSalle did not answer or otherwise respond to the complaint. 6Legacy then moved for default judgment. (J.A. at 53). The Circuit Court for the County of Genes ee entered a judgment quieting title in Legacy on August 27, 2001. The judgment stated, “Plaintiff, Michelle S. Legacy, by virtue of a perfected tax deed, is the owner of the following described real estate in fee simple by a title perfect as against the Defendant L ASALLE NATIONAL BANK, Trustee for AFC Mortgage Loan Asset Backed Certificate Series 1996-1.” (J.A. at 56). Legacy subsequently sold the property vi a warranty deed to Court Street, Inc. (“Court Street”), and Court Street, in turn , conveyed the property via warranty deed to Michael Joubran. (J.A. at 80-81).7 Procedurally, Joubran filed a cross claim against Court Street; Court Street filed a cross claim against Legacy; and Legacy filed a third-party complaint against First American Title Company. ( See District Court docket report, J.A. at 3-4).

8 Joubran concurred in this motion. (J.A. at 124).

9 Joubran also concurred in this motion. (J.A. at 124). 4 On August 1, 2003, LaSalle filed a complaint for foreclosure in United States District Court for the Eastern District of Michigan. (J.A. at 8). Factually, LaSalle argued that Callahan owed $110,278.16 in mortgage payments, and $48,636.49 in interest. (J.A. at 9). Legally, LaSalle argued that Legacy failed toperfect her tax title because she did not provide it with the required not ice of its right to redeem the property. LaSalle further asserted that the right to r edemption continued until such notic e was given, and that the subsequent warranty deeds to Court Street and Joubran were void. (J.A. at 10). 7 Legacy moved to dismiss under Federal Ru le of Civil Procedur e 12(c), arguing that LaSalle’s claim was barred under res judicata. 8Court Street mov ed for summary judgment, arguing that the doctrines of res judicata and laches applied, and that it was not a proper party. 9Finally, LaSalle moved for summary j udgment, arguing that, due to Legacy’s failure to comply with M.C.L. § 211.140, it retai ned its rights to reconveyance and foreclosure. (J.A. 82-97). On September 27, 2004, the district court entered a Memorandum Opinion and Order granting Legacy’s motion to dismiss and Court Street’s motion for summary judgment; and denying LaSalle’s motion for summa ry judgment. The court concluded that res judicata applied to preclude LaSalle’s claim. (J.A. 24-31). This appeal followed. II. ANALYSIS5 A. Standard of Review “The applicability of res judicata to bar a s ubsequent suit is a question of law that this Court reviews de novo.” Morse v. First of Am. Bank-Michigan , Nos. 212197, 215324, 2001 WL 921171, at *1 (Mich. Ct. App. Aug. 1, 2001). This court reviews a district court’s dismissal of a claim and denial of summary judgment de novo. Golden v. City of Columbus , 404 F.3d 950, 954, 958 (6th Cir. 2005). B. Discussion In this appeal, LaSalle’s primary argument is that Legacy failed to strictly comply with the statutory notice require ments, and thus, its right to redemption has not been extinguished. Legacy, by contrast, argues that the judgment ent ered by the Genesee County Circuit Court has a preclusiveeffect on LaSalle’s present claim. Michigan Compiled Laws § 211.72 provides, in pertinent part, that “tax deeds convey an absolute title to land sold, and constitute conclusive evidence of title ....” See Equivest Ltd. Partnership v. Foster , 656 N.W.2d 369, 371 (Mich. Ct. App. 2002)

. The statute authorizes a person holding a st ate tax deed to bring an action to quiet title against all parties who have a recorded interest in the property. Id . However, under M.C.L. § 211.141, interested parties are a fforded a redemption period that lasts for six months after the tax deed holder complies with the notice requirements of M.C.L. § 211.140. Id

. Subsection (1) requires that notice be giv en to the following individuals/entities: (a) The last grantee or grantees in the regular chain of title of the property, or of an interest in the property, a ccording to the reco rds of the county register of deeds. (b) The person or persons in actual open possession of the land. (c) The grantee or grantees under the tax deed issued by t he state treasurer for the latest year's taxes according to the records of the county register of deeds.10 Adair v. Bonninghausen , 9 N.W.2d 35, 37 (Mich. 1943) (internal citation omitted); United States v. Varani, 780 F.2d 1296, 1302 (6th Cir. 1986); Burkhardt v. Bailey , 680 N.W.2d 453, 460 (Mich. Ct. App. 2004) (“Even actual notice to Bond was insufficient to commence the running of the six-month period with regard to Bond because strict compliance with the statutory notice is required.”); Detroit Tax Lien Co. v. Paul, No. 29905, 2003 WL 21921179, at *3 (Mich. Ct. App. Aug. 12, 2003) (holding that plaintiff’s publication of not ice prior to giving it to the sheriff’s department rendered the notice insufficient according to a strict reading of the statute); Equivest Ltd. P’ship v. Foster , 656 N.W.2d 369, 372 (Mich. Ct. App. 2002) (finding the notice insufficient); Stein v. Hemminger , 419 N.W.2d 50, 53 (Mich. Ct. App. 1988) (“[T]he Supreme Court may very well wish to consider whether the policy reasons for a strict construction of the statute still exist.”). 6 (d) The mortgagee or mortgagees named in all undischarged recorded mortgages, or assignees of record. (e) The holder of record of all undischarged recorded liens. M.C.L. § 211.140(1) (1999) . The statute also prescribes the content and fo rm of the notice. Id . § 211.140(2). If proper statutory notice is notserved, the six-month redemption period never begins to run, and the right to redemption continues to exist. Equivest , 656 N.W.2d at 371 citing Ottaco, Inc. v. Kal port Dev. Co., Inc. , 607 N.W.2d 403 (Mich. Ct. App. 1999).

Strict compliance with the notice require ment of M.C.L. § 211.140 is required because the effect of the proceedi ngs under the tax law is to dive st the true owners of the title to their property. Andre v. Fink, 447 N.W.2d 808 (Mich. Ct. App. 1989). To that end, Michigan courts closely scrutinize and strictly construe tax title proceedings, holding that unless notice to redeem is served within the st atutory period, a purchaser cannot assert title under a tax deed. 10 In this case, LaSalle maintains that Lega cy failed to properly se rve it with notice of its right to redemption, in violation of the statute. In support, LaSalle relies on Equivest Ltd. Partnership v. Foster , 656 N.W.2d 369 (Mich. Ct. App. 2002), which it claims is factually analogous. (Br. Appellant at 16-19).11 It was undisputed that the defendants resided in Wayne County, and the property at issue was located in Oakland County. Equivest , 656 N.W.2d at 372, n.2. Notice was published in an Oakland County newspaper. Id . at 372, n.3. On appeal, the court concluded that M.C.L. § 211.140(5), which permitted notice by publication, did not apply because the whereabouts of the 7 In Equivest , the property owner defaul ted on her taxes, a tax sale was held, and the defendants received tax deeds from the State of Michigan wit h regard to the 1991 and 1992 taxes. Equivest, 656 N.W.2d at 370. The plaint iff’s predecessor in interest, Equifunding, Inc., subsequently obtained a tax deed with regard to the 1993 taxes, and sought to quiet title to the property. Id . Equifunding attempted to serve the defendants with notice at their residence, to no avail. Id. After receiving a letter from the local sheriff’s office indicating that it attempted service nine times, but the defendants refused to answer their door, Equifunding resorted to publis hing notice in the county newspaper. Id. In the interim, Equifunding conveyed its interest in t he property to the plaintiff, Equivest Limited Partnership. Id

. When the defendants failed to respond to t he published notice, Equivest filed a complaint to quiet title and a request for a writ of assistance to take possession. Equivest , 656 N.W.2d at 370. The defendants answer ed and asserted an affirmative defense, claiming that they were not properly notified of their rightto redemption under M.C.L. § 211.40. Id . The trial court disagreed, noting that the letter from the sheriff’s office was sufficient to constitute a return of service. Id . The court awarded summary judgment in Equivest’s favor. Id. On appeal, the defendants argued tha t: 1) the sheriff was required to file an affidavit or return of service, indicating his failure to ascertain their whereabouts, and 2) Equivest did not strictly comply with the not ice provisions of M.C.L. § 211.140. 11 Id . Based upondefendants were known. The specific question presented, therefore, was whether notice by publication was sufficient where the sheriff’s office in the county where the defendants resided was unable to serve them because they deliberately evaded service. 8 these deficiencies, the def endants claimed that the six -month redemption period never began to run. Id . at 370-71. Relying on cases adopting a literal reading of M.C.L. § 211.140, the Michigan Court of Appeals held that Equivest’s notice attemp ts were insufficient, and did not serve to commence the six-month redemption period. Equivest, 656 N.W.2d at 374. More specifically, the court concluded that “[t]he statute simply does not allow for publication notice in the county where the property is located in response to frustrated attempts at personal service upon residents of another county.” Id . The court also extended an invitation to the Legislature to revisit the prov isions of M.C.L. § 211. 140 in order to provide alternatives for situations where a party whose whereabouts are known obstinately refuses service. Id

. The Court finds Equivest’s holding regarding strict stat utory compliance instructive. Nevertheless, the unique procedural history of the instant case dictates a different result. In this case, LaSalle raised the lack of stat utory notice not in a quiet title action as in Equivest , but in a federal foreclosure proceedi ng commenced two years after the tax sale purchaser sought and obtained a j udgment quieting title to the property in her. LaSalle argues that it was under no obligation to res pond to Legacy’s quiet title action, and that its failure to do so had no e ffect on its right of reconveyance. (Br. Appellant at 14). As the following discussion demonstrates, LaSalle’s attemp t to divorce the issue of statutory notice from the effect of the state court j udgment quieting title in Legacy is unavailing.9 Title 211, section 72 of the Michigan Compiled Laws describes the process and effect of a quiet title action with regard to a tax deed: A person holding a state ta x deed of lands executed for nonpayment of taxes may commence an action in the circuit court of the county where the lands lie to quiet his or her title to the land without taking possession of the lands and all parties who have, claim to have, or appear of record in the register’s office in the county where the lands are situated to have, any interest in the land or who may be in possession ofthe land may be made defendants in the action; and no outstandi ng unrecorded deed, mortgage, or claim shall be of any effect as against the title or rightof the plaintiff as fixed and declared by the order made in the case. M.C.L. § 211.72 (1999). The statute also states: The tax deeds convey an absolute title to the land sold, and constitute conclusive evidence of title, in fee, in the grantee, subject, however, to all taxes assessed and levied on the land subsequent to the taxes for which the land was bid off. Id

. A plain reading of section 72 reveals that the state court’s determination that Legacy is the record owner of the pr operty precludes LaSalle, or any other party, from thereafter asserting a competing or superio r interest in the property. In this case, Legacy’s complaint to quiet title expressly indicated that it was brought pursuant to section 72. LaSalle’s argument that it was unaware of the implications of fa iling to defend the action is disingenuous at best. (J.A. at 49-50). Those im plications are two-fold: 1) the August 27, 2001 state court judgment quieting title in Legacy dissolved LaSalle’s interest in the property, and more importantly, 2) LaSalle was no longer a mo rtgagee entitled to statutory notice of its right to redem ption under M.C.L. § 211.140 or t he statutory right to redeem under § 211.141. See Burkhardt, 680 N.W.2d at 461 (“By its pl ain wording, § 141 only12 This was noted by the district court in its Memorandum Opinion and Order. (J.A. at 29). 10 extends the right to redeem to persons or entities having existi ng specified interests in the subject property.”). Furthermore, LaSalle has failed to cite, and the Court has been unable to locate, any cases where a party failed to defend a quiet title action, and subsequently sought to assert its right to redemption bas ed upon the tax deed holder’s a lleged non-compliance with the
statute. 12 To the contrary, the Court’s own research reveals that the sufficiency or insufficiency of notice provided by a tax sale purchaser under M.C.L. § 211.140 is generally, if not exclusively, raised in an action to quiet title. See, e.g., Burkhardt , 680 N.W.2d at 455 (noting that the dispute over not ice of right to redemption aros e out of a complaint to quiet title); Equivest , 656 N.W.2d at 370; Detroit Tax Lien Co. , 2003 WL 21921179, at *1; Stein , 419 N.W.2d at 51. With these cases in mind, the Court conc ludes that whether Legacy properly notified LaSalle of its redemption rightin accordance with M.C.L. § 211.140 is an issue that could have, and indeed should have, been ra ised in the prior quiet titl e action. LaSalle’s failure in that regard is fatal to its present claim. See Dart v. Dart , 597 N.W.2d 82, 88 (Mich. 1999) (noting that Michigan courts broadly apply the doctrine of res judicata to bar claims that already have been, or in the exercise of reasonable diligenc e, could have been litigated). III. CONCLUSION For the reasons stated herein, the dec ision of the district court is AFFIRMED

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