ROBERT L BOWEN V ROY BRADLEY
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT L. BOWEN and GENEVA L. BOWEN,
UNPUBLISHED
May 21, 2009
Plaintiffs-Appellants,
v
No. 285052
Saginaw Circuit Court
LC No. 06-062821-CH
ROY BRADLEY and TAMMY BRADLEY,
Defendants-Appellees.
Before: Fitzgerald, P.J., and Talbot and Shapiro, JJ.
PER CURIAM.
Plaintiffs appeal as of right from the trial court’s order granting defendants’ motion for
summary disposition. We reverse and remand for further proceedings consistent with this
opinion. This appeal has been decided without oral argument pursuant to MCR 7.214(E).
The following facts are not in dispute. Defendants were buying real estate from plaintiffs
on a land contract. Defendants were required to make monthly payments, including interest, and
to pay the property taxes. By the time plaintiffs filed their complaint in November 2006,
defendants had never paid the property taxes and had been in default on the contract since May
15, 2005. The complaint alleged four counts: foreclosure, breach of contract, ejectment, and
eviction. In paragraph 10, the complaint alleged that the total amount due as of September 2006
was $40,934.40, consisting of the entire remaining principal, interest, and unpaid property taxes.
The remedies sought included foreclosure, immediate possession, costs and fees, and “other and
further relief.” After the complaint was filed, defendants tendered partial payments in an attempt
to bring the account current. Plaintiffs held the payments in escrow.
Defendants moved for summary disposition, asserting that plaintiffs had not exercised
their option to accelerate and that defendants had cured by paying enough to make the account
current. They stated that acceleration “requires a formal act,” citing Sindlinger v Paul, 428 Mich
161; 404 NW2d 212 (1987), and Kent v Pipia, 185 Mich App 599; 462 NW2d 800 (1990), for
this principle. Plaintiffs argued that the contract included an acceleration clause and that the
complaint was sufficient to provide notice that they were exercising the clause. No money was
tendered within 45 days of being past due, so the option was exercised by filing the complaint
and at that point defendants could only tender the entire amount owing to avoid foreclosure. The
trial court agreed that the contract included an acceleration clause, but found that plaintiffs had
taken no action to exercise the acceleration option. The trial court found that unlike the
complaint in Dumas v Helm, 15 Mich App 148; 166 NW2d 306 (1968), plaintiffs’ complaint did
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not include an express request to accelerate the unpaid balance, and that because the option had
not been exercised, defendants only had to make the payments current and not pay the
accelerated indebtedness.
We find the trial court erred in concluding that the complaint itself was insufficient to
exercise the option to accelerate. The cases cited by defendant do not require a separate act. In
Sindlinger, supra at 163, our Supreme Court expressly stated:
We agree with the Court of Appeals that the vendors were not required to provide the vendees
“with notice or to allow them a period of time in which to bring their payments current” before
exercising the option to accelerate, that no particular form or type of notice is prescribed for
exercising the right to accelerate, and that commencement of an action for foreclosure would
evidence the vendors’ desire to exercise, and constitute an exercise of, the right and option to
accelerate. [Emphasis added.]
The trial court in this case focused on the language in Dumas, where this Court noted, “In
paragraph 9 of their complaint filed in this cause, plaintiffs exercised their option under
paragraph 3g of the contract, declaring the entire unpaid balance due and payable forthwith.”
Dumas, supra at 150. The trial court found that plaintiffs’ complaint lacked such a request to
accelerate the unpaid balance. However, Sindlinger does not require an express declaration.
Moreover, paragraph 10 of the complaint states, “The total amount due and owing as of
September 15, 2006, is $40,934.40,” which reflects the accelerated debt. The language used by
plaintiffs, “total amount due and owing” is nearly identical to “entire unpaid balance due and
payable forthwith.” Dumas does not indicate that the plaintiffs in that case made any more
express request for acceleration.
Plaintiffs’ complaint was sufficient under Dumas and Sindlinger to invoke the
acceleration clause. Because plaintiffs accelerated before defendants attempted to cure the
default, foreclosure is appropriate unless defendants tender the entire amount owed under the
acceleration clause.
We reverse and remand for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
/s/ Douglas B. Shapiro
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