AZIZ KHONDKER V WAYNE CO TREASURER
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STATE OF MICHIGAN
COURT OF APPEALS
AZIZ KHONDKER,
UNPUBLISHED
March 23, 2004
Plaintiff-Appellant,
v
No. 246296
Wayne Circuit Court
LC No. 02-234046-CZ
WAYNE COUNTY TREASURER,
Defendant-Appellee.
Before: Zahra, P.J., and Saad and Schuette, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order denying his motion for a preliminary
injunction regarding the sale of real property. We affirm.
I. Facts and Procedure
On June 14, 2001, defendant filed a petition for the foreclosure of approximately eight
thousand properties for the failure to pay property taxes for the year 1999. One of the properties
included in the petition was 2001 East Grand Boulevard in Detroit, which was owned by Kevin
Pitts. Plaintiff, who was a former owner of the property and claims that he again acquired
interest in the property by paying taxes, cleaning, and removing debris from the property, alleges
that defendant did not provide any notice of foreclosure to Pitts or him. However, defendant’s
process server filed an affidavit stating that she personally visited the property, which was
unoccupied when she arrived. The process server stated that, in accordance with the foreclosure
notice provisions of MCL 211.78i(3), she posted a notice to show cause hearing, the foreclosure
petition, and other relevant documents on the property in a conspicuous manner. She also took a
photograph of the house after she posted the notice. On March 4, 2002, the circuit court entered
a judgment of foreclosure for approximately five thousand properties, including 2001 East Grand
Boulevard. In the judgment, the trial court found that defendant provided proper notice and
opportunity to be heard to all parties interested in the forfeited properties. When plaintiff
subsequently approached defendant to pay the balance of unpaid taxes on the house, he was told
that the property had been foreclosed and would be sold at a public auction between September
25, 2002, and September 27, 2002.
On September 25, 2002, plaintiff filed a complaint against defendant, seeking a
preliminary injunction and an ex parte temporary restraining order preventing defendant from
placing his foreclosed property in a public auction and compelling defendant to accept full
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payment from plaintiff for the delinquent taxes. The trial court treated plaintiff’s complaint as a
motion and held hearings regarding the matter, where it found that defendant had complied with
the forfeiture notice requirements of MCL 211.78. The court explained that in Smith v Cliffs on
the Bay Condo Ass’n, 463 Mich 420; 617 NW2d 536 (2000), on remand 245 Mich App 73; 626
NW2d 905 (2001), the Supreme Court determined that the prior statutory notice requirements
were constitutional, and because the statutory notice requirements had been expanded since the
Supreme Court decision, the present notice requirements were sufficient to satisfy due process.
The court also rejected plaintiff’s argument that the notice statute was unconstitutional as applied
to this case because the legislative purpose of the statute was frustrated. Finally, the court added
that equitable relief was not available in a foreclosure context. The court then entered an order
denying plaintiff’s motion for a preliminary injunction. The court subsequently denied
plaintiff’s motion for reconsideration.
II. Analysis
Plaintiff argues that this Court should set aside the auction sale of his property and award
the property to him, because defendant did not give him proper statutory notice of the foreclosure
proceedings and thus violated his right to due process. In response, defendant argues that this
Court lacks jurisdiction to decide plaintiff’s appeal, because plaintiff is not appealing the circuit
court’s final order.
MCL 211.78k(7) provides for an appeal of a judgment of foreclosure:
The foreclosing governmental unit or a person claiming to have a property
interest under section 78i in property foreclosed under this section may appeal the
circuit court’s order or the circuit court’s judgment foreclosing property to the
court of appeals. An appeal under this subsection is limited to the record of the
proceedings in the circuit court under this section and shall not be de novo. The
circuit court’s judgment foreclosing property shall be stayed until the court of
appeals has reversed, modified, or affirmed that judgment. If an appeal under this
subsection stays the circuit court’s judgment foreclosing property, the circuit
court’s judgment is stayed only as to the property that is the subject of that appeal
and the circuit court’s judgment foreclosing other property that is not the subject
of that appeal is not stayed. 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 to the county treasurer under the judgment within 21
days after the circuit court's judgment is entered, together with a notice of appeal.
If the circuit court’s judgment foreclosing the property is affirmed on appeal, the
amount determined to be due shall be refunded to the person who appealed the
judgment. If the circuit court’s judgment foreclosing the property is reversed or
modified on appeal, the county treasurer shall refund the amount determined to be
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due to the person who appealed the judgment, if any, and retain the balance in
accordance with the order of the court of appeals.[1]
Here, plaintiff did not follow the appeal procedures set forth in MCL 211.78k(7), but instead
filed the complaint in this suit, which is essentially an original action attempting to enjoin
enforcement of the judgment of foreclosure. Plaintiff’s original action in this case amounts to a
collateral attack on the judgment of foreclosure. “[A] decision of a court having jurisdiction is
final and cannot be collaterally attacked.” In re Waite, 188 Mich App 189, 197; 468 NW2d 912
(1991). Plaintiff does not allege that the circuit court lacked jurisdiction to enter the judgment of
foreclosure, so he may not attack the judgment by bringing an original suit. SS Aircraft Co v
Piper Aircraft Co, 159 Mich App 389, 393; 406 NW2d 304 (1987).
In regard to whether plaintiff could properly file an original action against defendant for
failure to provide notice of foreclosure, the General Property Tax Act, MCL 211.1 et seq.,
provides:
The failure of this state or a political subdivision of this state to follow a
requirement of this act relating to the return, forfeiture, or foreclosure of property
for delinquent taxes shall not be construed to create a claim or cause of action
against this state or a political subdivision of this state unless the minimum
requirements of due process accorded under the state constitution of 1963 or the
constitution of the United States are violated. [MCL 211.78(2).]
In Smith, supra at 428-429, our Supreme Court held that the “extensive set of procedures for
notice of the steps in the tax sale process . . . meet the requirements set forth in Dow [v Michigan,
396 Mich 192; 240 NW2d 450 (1976)] and thus provide a constitutionally sound procedure for
sale of property because of the nonpayment of taxes.” Plaintiff does not argue that the postSmith amendments to the General Property Tax Act caused the statutory notice requirements to
become constitutionally inadequate.2 Here, the trial court found that defendant had complied
with the notice requirements of MCL 211.78 because defendant’s process server filed an
1
This version of MCL 211.78k was amended by Pub Act 2003, No. 263, imd eff January 5,
2004.
2
In amending the General Property Tax Act in 2003, the Legislature stated, “This amendatory
act is not intended to and shall not be construed to modify or alter the ruling of the Michigan
[S]upreme [C]ourt in Smith v Cliffs on the Bay Condominium Association, docket no. 111587.”
2003 PA 263.
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affidavit stating that she followed the statutory requirements for notice under MCL 211.78i(3).
Therefore, plaintiff’s present suit against defendant could not permissibly challenge the judgment
of foreclosure or the adequacy of notice of foreclosure.
Affirmed.
/s/ Brian K. Zahra
/s/ Henry William Saad
/s/ Bill Schuette
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