CITIBANK WEST FSB V NEIL P LUND
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STATE OF MICHIGAN
COURT OF APPEALS
CITIBANK WEST FSB, successor by merger to
CALIFORNIA FEDERAL BANK, f/k/a
CALIFORNIA FEDERAL BANK FSB,
UNPUBLISHED
June 26, 2007
Plaintiff-Appellee,
v
No. 272690
Oakland Circuit Court
LC No. 2005-070215-CH
NEIL P. LUND and DENISE LUND,
Defendants-Appellants,
and
EMIGRANT MORTGAGE COMPANY,
Defendant-Appellee,
and
RICK HERBERT, CHARLES BROWN, and
UNITED STATES OF AMERICA,
Defendants.
Before: Meter, P.J., and Kelly and Fort Hood, JJ.
PER CURIAM.
Defendants Neil and Denise Lund, in propria persona, appeal as of right from a circuit
court order granting summary disposition to plaintiff pursuant to MCR 2.116(C)(10) in this
action for judicial foreclosure. We affirm. This case is being decided without oral argument
pursuant to MCR 7.214(E).
On appeal, the Lunds argue that the trial court “should have granted
Defendant’s/Appellant’s request for Trial and Nul Tiel Record Plea evidentiary hearing as
required.”
“Nul tiel record” is “[a] plea denying the existence of the record on which the plaintiff
bases a claim.” Black’s Law Dictionary (7th ed). The Lunds did not plead “nul tiel record”
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below and did not request a “nul tiel record plea evidentiary hearing.” Because this issue was
not raised before and considered by the trial court, it is not preserved for appeal. Adam v Sylvan
Glynn Golf Course, 197 Mich App 95, 98; 494 NW2d 791 (1992). This Court may review an
issue if the question is one of law and the facts necessary for its resolution have been presented.
Id., pp 98-99. However, the Lunds do not adequately brief the issue. They do not identify what
aspect of the record does not exist, and they do not cite any authority, much less Michigan
authority, that addresses the showing necessary for a “nul tiel record plea evidentiary hearing.”
“It is not enough for an appellant in his brief simply to announce a
position or assert an error and then leave it up to this Court to discover and
rationalize the basis for his claims, or unravel and elaborate for him his
arguments, and then search for authority either to sustain or reject his position.
The appellant himself must first adequately prime the pump; only then does the
appellate well begin to flow.” [Mudge v Macomb Co, 458 Mich 87, 105; 580
NW2d 845 (1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388
(1959).]
The issue is unpreserved and inadequately briefed, and this Court will not examine it further.
The Lunds’ brief also includes portions of their arguments from the motion that they filed
in opposition to plaintiff’s motion. Arguably, they are contesting the trial court’s grant of
plaintiff’s motion for summary disposition.
Summary disposition may be granted under MCR 2.116(C)(10) when “there is no
genuine issue of material fact, and the moving party is entitled to judgment . . . as a matter of
law.” A motion under MCR 2.116(C)(10) tests the factual support for a claim. Maiden v
Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). The moving party must specifically
identify the matters that it believes have no disputed factual issues, id.; MCR 2.116(G)(4), and
has the initial burden of presenting affidavits, depositions, admissions, or other documentary
evidence in support of the motion, Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d
314 (1996); MCR 2.116(G)(5). Once the moving party has met this burden, the burden shifts to
the opposing party to show that a genuine issue of material fact exists. Quinto, supra, p 362.
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Maiden, supra, p 118.
In response to plaintiff’s properly supported motion, the Lunds did not present any
evidence showing that there was an issue of fact for trial. At most, they indicated that expert
testimony would be presented at trial to support their position. Because the Lunds did not
present evidence, but merely asserted that they would do so if there were a trial, the trial court
properly granted plaintiff’s motion. “A litigant’s mere pledge to establish an issue of fact at trial
cannot survive summary disposition under MCR 2.116(C)(10).” Maiden, supra, p 121.
Affirmed.
/s/ Patrick M. Meter
/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood
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