WALTER STACK V GMAC MORTGAGE CORP
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STATE OF MICHIGAN
COURT OF APPEALS
WALTER STACK and MICHELLE STACK,
UNPUBLISHED
December 27, 2007
Plaintiffs-Appellants,
v
No. 271186
Bay Circuit Court
LC No. 04-003814-CH
GMAC MORTGAGE CORPORATION,
Defendant-Appellee.
Before: Schuette, P.J., and Borrello and Gleicher, JJ.
GLEICHER, J. (concurring).
I concur with the result reached by the majority, but write separately to set forth my
reasons for doing so.
Defendant initiated foreclosure proceedings. Plaintiffs sued for an accounting, alleging
that the faulty practices of several mortgage service companies caused delays in their mortgage
payments. The trial court issued a preliminary injunction, halting further foreclosure efforts. On
February 23, 2006, the trial court ordered that plaintiffs forward the mortgage arrearage and
future monthly mortgage payments to defense counsel, for deposit in an IOLTA escrow account.
By May 16, 2006, plaintiffs had forwarded approximately half the amount due. On that date, the
trial court dismissed plaintiffs’ case pursuant to MCR 2.504(B)(1), which provides that if the
plaintiff fails to comply with a court order, “a defendant may move for dismissal of an action or
a claim against that defendant.”
Plaintiffs contend on appeal that reversal is required because the trial court failed to
consider the seven factors discussed in Vicencio v Jaime Ramirez, MD, PC, 211 Mich App 501,
506-507; 536 NW2d 280 (1995).1 The majority opinion does not mention the Vicencio factors,
1
The Vicencio factors are: (1) whether the violation was willful or accidental; (2) the party’s
history of refusing to comply with previous court orders; (3) the prejudice to the opposing party;
(4) whether there exists a history of deliberate delay; (5) the degree of compliance with other
parts of the court’s orders; (6) attempts to cure the defect; and (7) whether a lesser sanction
would better serve the interests of justice. Id. at 507.
-1-
and instead premises its analysis on Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
NW2d 809 (2006).
The Supreme Court’s decision in Maldonado provides a framework for this Court’s
review of a trial court decision. In my view, Maldonado did not overrule Vicencio. Recitation of
the Maldonado standard of review, without more, does not resolve the issue presented in this
appeal: whether the trial court should have applied the Vicencio factors.
“Dismissal is a drastic step that should be taken cautiously.” Vicencio, supra at 506. I
believe that a trial court should consider and apply the Vicencio factors when confronted with a
motion for dismissal brought under MCR 2.504(B)(1). Vicencio counsels a trial court to
carefully evaluate options other than dismissal, as well as a plaintiff’s previous conduct, before
concluding that dismissal is appropriate. Id.
The trial court did not specifically refer to the Vicencio factors when it dismissed the
instant case. It did, however, articulate an analysis that closely tracked Vicencio. The trial court
found that plaintiffs deliberately failed to proffer their monthly mortgage payments or the
arrearage, and that plaintiffs had a history of failing to make their payments, or of making
delayed, partial payments. Additionally, the trial court noted that its previous order provided
plaintiffs with several months in which to cure any defects in their mortgage payment process,
but they failed to do so. The trial court expressed its belief that plaintiffs were engaged in a “cat
and mouse game” with their ever-accruing mortgage debt, and would never catch up with their
obligations.
Because the trial court’s decision was fully informed and entirely consistent with
Vicencio, I agree with my colleagues that it did not abuse its discretion when it dismissed
plaintiffs’ case pursuant to MCR 2.504(B)(1).
/s/ Elizabeth L. Gleicher
-2-
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