**Court of**  **Appeals, State**  **of Michigan** 

**ORDER**

**In re**  **Forfeiture of**  **Bail Bond**  **(People of**  **Stanford)**

**Docket No.**  **328784**

**LC No.**  **14-020293-FH Amy**  **Ronayne Krause**  **Presiding Judge** 

**Peter D.**  **O'Connell**

**Elizabeth L.**  **Gleicher Judges** 

**On the**  **Court's own**  **motion, the**  **Court orders**  **that the**  **November 22,**  **2016 opinion**  **is hereby**  **VACA TED,**  **and a**  **new opinion**  **is attached.** 

**A true**  **copy entered**  **and certified**  **by Jerome**  **W. Zimmer**  **Jr., Chief**  **Clerk, on** 



## DEC **15 2016** 

**Dale**-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

In re FORFEITURE OF BAIL BOND,

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION December 15, 2016 9:05 a.m.

v No. 328784 Eaton Circuit Court ANTOINE J. STANFORD, LC No. 14-020293-FH

Defendant, and

LEO’S BAIL BONDS AGENCY COMPANY, INC., as Agent in Fact of ROCHE SURETY AND CASUALTY COMPANY, INC.,

Appellant.

Before: R ONAYNE K RAUSE , P.J., and O’C ONNELL and G LEICHER , JJ.

P ER C URIAM

. Appellant, the agent for the surety on a bail bond provided fo r defendant in a criminal matter, appeals as of right the circuit court’s decision denyin g its motion to vacate forfeiture of bond. The court concluded that appellant had received timely n otice of defendant’s default, and also concluded that a late penalty assessed against appellant f or failure to timely pay the judgment was proper. We conclude that the notice was not timel y, so we reverse and remand for further proceedings.

I. BACKGROUND FACTS

Defendant Antoine Stanford was charged with uttering and publi shing, MCL 750.249, and operating with a suspende d license, MCL 257.904. Appellant , as agent for Roche Surety and Casualty Company, Inc. (“Roche”), became defendant’s surety on a bail bond for this matter in the amount of $10,000. On or about January 14, 2015, defend ant defaulted on his bond obligation when he failed to appear at a pretrial hearing. On January 20, 2015, the circuit court issued an order revoking defenda nt’s release and forfeiting the bond. It served notice to-2- appellant via first-class mail. The certificate of mailing att ached to the order stated that it was served on appellant on January 21, 2015, seven days after defen dant’s default, as required by MCL 765.28(1) 1 . However, appellant asserted that the notice was postmarked J anuary 22, 2015, which was eight days after defendant’s default, i n violation of the statute. Moreover, appellant asserted that it was without “actual notice” of defendant’s def ault and entry of the order until it received the notice i n the mail on January 23, 2015.

Appellant failed to appear at a show cause hearing held on Feb ruary 20, 2015. On February 24, 2015, the circuit c ourt entered judgment against a ppellant for $10,000, the full amount of bail. Appellant was late r notified that a 20 percent late fee had been added to its obligation as a result of its f ailure to timely pay the judgmen t, raising appellant’s obligation to $12,000.

Appellant filed a motion to vacate the judgment of bond forfei ture, arguing that notice was not provided within seven day s of defendant’s default as re quired by MCL 765.28(1), so it was untimely. The court denied the motion on the grounds that notice was timely pursuant to MCR 3.604(I)(2) 2 , and that the date of service of notice was January 21, 2015, as stated on the judgment’s certificate of mailing, rather than January 22, 2015 , the date that the notice was postmarked. The court also concluded that there was a conflict between MCR 3.604(I)(2) and MCL 765.28(1) as to “the procedural requirements for service,” and that the court rule was controlling over the statute. The court’s decision was based i n part on a memorandum from the State Court Administrator’s Office (SCAO), in which the SCAO co ncluded that the court rule controlled because the subject of the conflict was procedural i n nature, citing Donkers v Kovach
, 277 Mich App 366, 373; 745 NW2d 154 (2007). The court also con cluded that the 20 percent late fee on the judgment was proper under MCL 600.4803(1) becau se the penalty was “separate” from the judgment, so the judgmen t was not for more than the “f ull amount of the surety bond” in violation MCL 765.28(1).

II. STANDARD OF REVIEW

1 MCL 765.28(1) provides in relev ant part: “If default is made in any recognizance in a court of record, the default shall be entered on the record by the clerk of the court. After the default is entered, the court shall give each surety immediate notice not to exceed 7 days after the date of the failure to appear. The notice shall be served upon each su rety in person or left at the surety’s last known business address. Each surety shall be given an opp ortunity to appear before the court on a day certain and show cause why judgment should not b e entered against the surety for the full amount of the bail or surety bond. If good cause is n ot shown for the defendant’s failure to appear, the court shall enter judgment against the surety on the recognizance for an amount determined appropriate by the court but not more than the full amount of the bail, or if a surety bond has been posted the full amount of the surety bond.”

2 MCR 3.604(I)(2) provides: “Notice of the hearing on the moti on for judgment must be given to the surety or the owner of the security in the manner prescr ibed in MCR 2.107. The notice may be mailed to the address stated in the bond or stated when the security was furnished unless the surety or owner has given not ice of a change of address.”-3- Questions of statutory interpr etation are questions of law tha t are reviewed de novo. In re McEvoy
, 267 Mich App 55, 59; 704 NW2d 78 (2005). Questions relating to the proper interpretation of court rules are also questions of law that ar e reviewed de novo. Marketos v American Employers Insurance Co
, 465 Mich 407, 412; 633 NW2d 371 (2001). In interpreting a statute, we apply the rule of ordinary usage and common sense. People v Kelly , 186 Mich App 524, 528; 465 NW2d 569 (1990).

III. STATUTE AND COURT RULE DO NOT CONFLICT

MCL 765.28(1) and MCR 3.604(I)(2) do not conflict. MCL 765.28 (1) is the procedure for providing a surety notice of a default. MCR 3.604(I)(2), o n the other hand, is the procedure to provide notice of a hearing on a motion for judgment. These are two separate and distinct events. A default must be entered prior to a hearing to enter judgment on the default. In any event, the court rule itself would resolve any conflict, if suc h a conflict otherwise exists. MCR 3.604(A) states that the “rule applies to bonds given under the Michigan Court Rules and the Revised Judicature Act, unless a rule or statute clearly indicates that a different procedure is to be followed” (emphases added). Therefore, even if MCL 765.28(1 ) set forth a procedure that affected the same event or subject addressed by the court rule, by the court rule’s own terms the statute would still control.

II. NOTICE OF DEFAULT WAS INEFFECTIVE

Service was not timely under MCL 765.28(1) or MCR 3.604(I)(2)3 . Under MCL 765.28(1), a surety must receive i mmediate notice, “not to exce ed seven days after the date of the failure to appear.” See also MCR 6.106(I)(2) (stating that if a defendant has failed to comply with the conditions of release, t he court may order a surety bo nd forfeited and that the court must immediately mail notice of the forfeiture to anyone who posted bond). However, the trial court did not even mail the notice unt il the eighth day. Therefore, the notice was not timely.

In contrast, notice of the hearing on the motion to enter judg ment against the surety was timely pursuant to MCR 3.604(I)(2). A notice of hearing was ma iled by the court on January 22, 2015, for a hearing scheduled for February 20, 2015, which comp lies with the requirements in MCR 3.604(I)(2) and MCR 2.107(3). Nevertheless, although the s urety clearly had proper notice of the motion to enter judgment, that does not obviate t he fact the surety did not receive proper notice of the default itself.

A similar issue was addressed In re Forfeiture of Bail Bond , 496 Mich 320; 852 NW2d 747 (2014). There, our Supreme Court found that MCL 765.28’s p urpose was to protect public interest, as well as the rights of third persons. Moreover, th e difficulty that a surety might face in apprehending a defendant when th e court fails to provide timely notice of the defendant's default increases with time. See Forfeiture of Bail Bond , 496 Mich at 334. As a remedy for this failure this court held:

When a public entity does not per form its statutory obligation s in a timely manner, and fails to respect the s tatutory preconditions to its exercise of authority, it lacks the authority to proceed as if it had. In this case, the consequence is that the court cannot require the sur ety to pay the surety bond beca use the court failed-4- to provide the surety notice within seven days of defendant’s f ailure to appear, as the statute clearly requires. Any other interpretation of the statute would render the seven-day notice requirement entirely nugatory. [ Id. at 336]

Here, the court failed to give the surety immediate notice wit hin seven days, therefore, the court cannot require the sur ety to pay the surety bond. We therefore reverse the trial court and remand for further proceedi ngs consistent with this opinion . We do not retain jurisdiction.

/s/ Amy Ronayne Krause /s/ Peter D. O’Connell /s/ Elizabeth L. Gleicher