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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

FAMILY TRADITIONAL HOLDINGS, LLC,

Plaintiff-Appellant,

UNPUBLISHED

November 14, 2017

v No. 333349

Wayne Circuit Court

WAYNE COUNTY TREASURER, LC No. 15-011612-CH

Defendant-Appellee.

Before: BECKERING, P.J., and O’BRIEN and CAMERON, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court’s order granting summary disposition in favor 

of defendant pursuant to MCR 2.116(C)(4) and (10). We affirm.

In 2014, defendant initiated foreclosure proceedings against plaintiff’s real property for 

unpaid forfeited 2012 taxes, interest, penalties, and fees (TIPF). On January 6, 2015, plaintiff 

and defendant entered into a Stipulated Payment Agreement (SPA). In the SPA, plaintiff 

acknowledged that defendant “filed a Petition for Foreclosure . . . seeking a Judgment of 

Foreclosure against” the property for forfeited 2012 TIPF. Pursuant to the SPA, defendant 

agreed to “extend the redemption date” in exchange for plaintiff entering into a payment 

schedule to pay the full amount of the 2012 TIPF by December 9, 2015. The agreement included 

a provision stating that if plaintiff failed to pay at least 60% of its 2012 TIPF by June 10, 2015, 

then plaintiff’s property would be foreclosed on and fee simple title would vest in defendant. 

The SPA also stated that defendant would offer the property “to the State of Michigan, local 

municipality, and/or county,” and that if all entities refused to exercise their purchase options, 

then the property may be auctioned. Also, pursuant to the SPA, plaintiff “knowingly and 

voluntarily waived” its “right, if any, to a hearing.” Lastly, the SPA provided that any 

modification to the agreement must be in writing.

Plaintiff failed to follow through with the pay schedule, so defendant foreclosed on the 

property. Following foreclosure, plaintiff filed the action now on appeal on September 3, 2015. 

In its complaint, plaintiff alleged that after the foreclosure, defendant’s Chief Deputy Treasurer, 

David Szymanski, contacted plaintiff and offered it “the opportunity to redeem” the property. 

But, according to plaintiff, when it went to redeem the property, defendant refused to honor 

plaintiff’s agreement with Szymanski.
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In response, defendant moved for summary disposition. In its motion, defendant argued 

that the trial court lacked jurisdiction to grant the relief requested by plaintiff. Defendant argued 

that the trial court could only grant plaintiff’s requested relief if plaintiff was denied due process, 

and that because the SPA afforded plaintiff due process, the trial court was without jurisdiction. 

In the alternative, defendant argued that (1) the alleged verbal agreement was disputed by an 

affidavit by Szymanski stating that he did not remember any agreement with plaintiff and that

there was no record of a verbal agreement in defendant’s files, and (2) the SPA specifically 

stated that any modification to their agreement needed to be in writing.

Plaintiff filed a response, arguing that the trial court had jurisdiction to hear this case 

because plaintiff was asserting that the SPA and subsequent verbal agreement did not provide 

plaintiff with sufficient notice of the foreclosure. Plaintiff asserted that defendant was required 

to provide plaintiff with actual notice and that the SPA did not accomplish that purpose. Plaintiff 

further submitted that there was a question of fact regarding the verbal agreement, and if it 

existed, then it established that plaintiff did not have sufficient notice of when its full TIPF was 

due so it could redeem its property.

At a hearing on defendant’s motion, the trial court ruled that the SPA provided plaintiff 

with actual notice of the foreclosure proceedings. The trial court further found that plaintiff’s 

assertions regarding the verbal agreement were “immaterial” because the parties agreed that the 

SPA could only be modified in writing. As such, a verbal agreement was nonbinding on the 

parties. The trial court then granted defendant’s motion for summary disposition pursuant to 

MCR 2.116(C)(4) and (10).

On appeal, plaintiff challenges whether the trial court properly determined that it had 

notice of the foreclosure proceedings. However, before addressing the merits of plaintiff’s 

argument, we must first address defendant’s challenge to this Court’s jurisdiction. Defendant 

asserts that this Court “does not have jurisdiction . . . under MCR 7.203” because the order 

appealed from is a postjudgment order rather than a final order, and the order that should have 

been appealed is the trial court’s judgment of foreclosure in the separate case. In support of its 

assertion, defendant cites to MCL 211.78k(7), which states, “To appeal the circuit court’s 

judgment foreclosing property, a person appealing the judgment shall pay to the county treasurer 

the amount determined to be due . . . within 21 days of the entry of a judgment foreclosing the 

property . . . together with a notice of appeal.” However, in In re Treasurer of Wayne Co for 

Foreclosure, 478 Mich 1, 10-11; 732 NW2d 458 (2007) (Perfecting Church), the Michigan 

Supreme Court held as follows:

[I]n cases where the foreclosing entity fails to provide constitutionally adequate

notice, MCL 211.78k permits a property owner to be deprived of the property 

without due process of law. Because the Legislature cannot create a statutory 

regime that allows for constitutional violations with no recourse, that portion of 

the statute purporting to limit the circuit court’s jurisdiction to modify judgments 

of foreclosure is unconstitutional and unenforceable as applied to property 

owners who are denied due process. [Second emphasis added.]

Thus, the trial court properly considered whether plaintiff received constitutionally adequate 

notice, see In re Ingham Co Treasurer, 495 Mich 1001 (2014) (remanding the case to the circuit 
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court “for consideration of whether the petitioners were given adequate notice prior to the 

foreclosure of the property”), and we can properly review the trial court’s determination with 

respect to that limited issue on appeal, MCR 7.202(6)(a)(i); MCR 7.203(A)(1). Having 

concluded that plaintiff’s appeal is properly before this Court, we hold that the trial court did not 

err by finding that plaintiff received constitutionally adequate notice and granting summary 

disposition in favor of defendant under MCR 2.116(C)(4) and (10).

“We review de novo a trial court’s grant of summary disposition.” Innovation Ventures v 

Liquid Mfg, 499 Mich 491, 506; 885 NW2d 861 (2016). “A motion under MCR 2.116(C)(10) 

tests the factual sufficiency of the complaint.” Maiden v Rozwood, 461 Mich 109, 120; 597 

NW2d 817 (1999). Summary disposition under MCR 2.116(C)(10) is proper if “the affidavits or 

other documentary evidence, viewed in the light most favorable to the nonmoving party, show 

that there is no genuine issue as to any material fact and the moving party is . . . entitled to 

judgment as a matter of law.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5; 890 NW2d 344 

(2016). Summary disposition pursuant to MCR 2.116(C)(4) “is appropriate when the trial court 

‘lacks subject matter jurisdiction.’ ” Packowski v United Food & Commercial Workers Local 

951, 289 Mich App 132, 138; 796 NW2d 94 (2010), quoting MCR 2.116(C)(4). “For 

jurisdictional questions under MCR 2.116(C)(4), this Court determine[s] whether the affidavits, 

together with the pleadings, depositions, admissions, and documentary evidence, demonstrate . . .

[a lack of] subject matter jurisdiction.” Packowski, 289 Mich App at 138-139 (citation and 

quotation marks omitted; alterations in original).

Every property owner has a constitutional right to the due process of law in proceedings 

for tax foreclosure. US Const, Am V and XIV; Const 1963, art I, § 17; Sidun v Wayne Co 

Treasurer, 481 Mich 503, 509; 751 NW2d 453 (2008). “[B]efore forcing a citizen to satisfy his 

debt by forfeiting his property, due process requires the government to provide adequate notice 

of the impending taking.” Jones v Flowers, 547 US 220, 234; 126 S Ct 1708; 164 L Ed 2d 415 

(2006).

On appeal, plaintiff argues that defendant failed to afford plaintiff due process because 

defendant failed to satisfy the notice requirements in MCL 211.78k(5)(f), which provide in 

pertinent part as follows:

A person shall be deemed to have been provided notice and an opportunity to be 

heard . . .if 1 or more of the following apply:

* * *

(iii) Before the hearing under this section, the person had actual notice of 

the hearing.

However, plaintiff’s argument fails to acknowledge that statutory notice is distinct from 

constitutional notice, and only inadequate constitutional notice entitles plaintiff to title of the 
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property.1 Gillie v Genesee Co Treasurer, 277 Mich App 333, 355; 745 NW2d 137 (2007); see 

also Perfecting Church, 478 Mich at 11 n 19 (“Because the notice provisions [of MCL 211.78k]

provide more notice than is required to satisfy due process, the constitution does not require strict 

compliance with all the statutory notice requirements.”). “[W]ith respect to ownership of the 

property, if constitutionally adequate notice was not provided to [plaintiff], fee simple title” 

would have remained with plaintiff, “but if constitutionally adequate notice was provided to 

[plaintiff], fee simple title” would have transferred to defendant. Gillie, 277 Mich App at 356; 

see also MCL 211.78k(6) (following a foreclosure proceeding, the foreclosing governmental unit 

receives fee simple title to the foreclosed property).

“[D]ue process is flexible and calls for such procedural protections as the particular 

situation demands.” Morrissey v Brewer, 408 US 471, 481; 92 S Ct 2593; 33 L Ed 2d 484 

(1972). “A fundamental requirement of due process in such proceedings is notice reasonably 

calculated, under all the circumstances, to apprise interested parties of the pendency of the action 

and afford them an opportunity to present their objections.” Sidun, 481 Mich at 509 (citation and 

quotation marks omitted).

Here, the SPA provided plaintiff with notice of the foreclosure proceeding. The SPA 

informed plaintiff that defendant was pursuing a foreclosure action against it, and the SPA 

provided plaintiff with a payment plan to pay its overdue TIPF. The SPA was a negotiated 

agreement; defendant agreed to extend the foreclosure proceedings to allow plaintiff to pay its 

overdue TIPF in exchange for plaintiff agreeing to enter into a payment schedule. The 

agreement stated in bold and underline that plaintiff needed to pay 60% of its 2012 TIPF by June 

10, 2015 (which it would have done by following the payment plan), or defendant would 

foreclose on the property. Thus, the SPA notified plaintiff of the proceedings against it and 

offered plaintiff an opportunity to object, negotiate, or otherwise discuss its options regarding the 

foreclosure with defendant. See id. Therefore, we hold that the SPA provided plaintiff with 

constitutionally adequate notice of the foreclosure proceedings. See Perfecting Church, 478 

Mich at 10. And because this notice of the foreclosure proceedings was constitutionally 

adequate, defendant was permitted to foreclosure on the property pursuant to MCL 211.78k. 

Accordingly, because it was undisputed that plaintiff signed the SPA, the trial court properly 

ruled that defendant was entitled to judgment as a matter of law. MCR 2.116(C)(10).

Plaintiff argues that notice was not adequate because the verbal agreement following the 

foreclosure created “a question of material fact as to whether this new agreement provided 

adequate notice to [plaintiff] as to when payment of TIPF in full was actually due.” However, 

after the foreclosure judgment was entered, defendant acquired absolute title to the property 

pursuant to MCL 211.78k(6). See Gillie, 277 Mich App at 355 (recognizing that, pursuant to 

MCL 211.78k(6), “the county would have acquired absolute title through the foreclosure 

judgment” so long as the interest holders had constitutionally adequate notice of the foreclosure). 

 1 If defendant did violate MCL 211.78k, plaintiff would be entitled to monetary damages under 

MCL 211.78l(1). However, “[t]he court of claims has original and exclusive jurisdiction” over 

such actions. MCL 211.78l(2).
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The alleged verbal agreement took place after the foreclosure had concluded and title had 

transferred to defendant. Thus, even assuming that there was a question regarding whether the 

parties entered into a verbal agreement, it was irrelevant to whether plaintiff received 

constitutionally adequate notice of the foreclosure. Because plaintiff could only collaterally 

attack the foreclosure based on whether it received constitutionally adequate notice, Perfecting 

Church, 478 Mich at 10-11, and the trial court properly concluded that plaintiff received 

adequate notice, the trial court correctly dismissed the case for lack of jurisdiction under MCR 

2.116(C)(4), see Perfecting Church, 478 Mich at 8 (“If a property owner does not redeem the 

property or appeal the judgment of foreclosure within 21 days, then MCL 211.78k(6) deprives 

the circuit court of jurisdiction to alter the judgment of foreclosure.”).

Affirmed.

/s/ Jane M. Beckering 

/s/ Colleen A. O'Brien 

/s/ Thomas C. Cameron