STATE OF MICHIGAN
COURT OF APPEALS
TIMOTHY and MARCI COMMAND,
UNPUBLISHED
April 26, 2012
Plaintiffs-Appellants,
v
No. 304438
Kent Circuit Court
LC No. 2011-001894-CH
MACATAWA BANK,
Defendant-Appellee.
Before: METER, P.J., and SERVITTO and STEPHENS, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial courtâs order granting summary disposition in favor
of defendant and dismissing plaintiffsâ complaint in its entirety. We affirm.
On June 17, 2004, plaintiffs borrowed money from defendant, securing the loan with a
mortgage on their home. In 2010, the parties entered into a loan modification agreement,
whereby plaintiffs acknowledged that they had defaulted on the loan. According to a January 14,
2010, payment letter, the new loan would be an interest-only home equity line of credit with a
monthly payment amount that would vary from month to month âdepending on number of days
in the cycle, any principal reductions, or actual date of payment.â The first date of payment was
set as January 31, 2010.
In January 2011, defendant noticed foreclosure proceedings on plaintiffsâ home due to a
default on the modified loan. Plaintiffs initiated the instant action in March 2011 asserting that
they were not in default on the loan and alleging various theories of recovery against defendant
including breach of contract, conversion, extortion, mail fraud, and violation of the statutory
foreclosure procedure. Plaintiffs also sought a temporary restraining order to halt the foreclosure
proceeding, which was denied.1 In lieu of answering plaintiffsâ complaint, defendant moved for
summary disposition pursuant to MCR 2.116(C)(8) and (10) setting forth grounds for dismissing
each of the 15 counts contained in plaintiffsâ complaint. The trial court granted the motion and
plaintiffs now appeal that decision.
1
Defendant did, however, voluntarily withdraw the foreclosure proceeding after the lawsuit was
filed.
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We review de novo a trial court's decision on a motion for summary disposition.
Coblentz v City of Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). A motion brought under
MCR 2.116 (C)(8) tests the legal sufficiency of the complaint on the basis of the pleadings alone.
Dalley v Dykema Gossett, 287 Mich App 296, 304; 788 NW2d 679 (2010). âA court may grant
summary disposition under MCR 2.116(C)(8) if the opposing party has failed to state a claim on
which relief can be granted.â Id. When deciding a motion under (C)(8), the trial court must
accept all well-pleaded factual allegations as true, construing them in a light most favorable to
the nonmoving party. Cummins v Robinson Twp, 283 Mich App 677, 689; 770 NW2d 421
(2009).
A motion for summary disposition under MCR 2.116(C)(10) tests the factual support of
the plaintiff's claim and should be granted when no genuine issue of any material fact exists to
warrant a trial. Spiek v Mich Dep't of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). The
party moving for summary disposition is required to specifically identify the issues as to which
there are no genuine issues of material fact and provide support for the motion in the form of
affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(4); Maiden v
Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999). âWhen a motion under subrule
(C)(10) is made and supported as provided in [the] rule, an adverse party may not rest upon the
mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise
provided in [the] rule, set forth specific facts showing that there is a genuine issue for trial.â
MCR 2.116(G)(4); see also Maiden, 461 Mich at 120â121. In reviewing a motion under subrule
(C)(10), the court considers the pleadings, affidavits, depositions, admissions and other evidence
submitted by the parties in a light most favorable to the nonmoving party. Walsh v Taylor, 263
Mich App 618, 621; 689 NW2d 506 (2004).
Plaintiffs first assert that the trial court erred in granting summary disposition in
defendantâs favor on their claim of illegal violation of statutory foreclosure procedure. In
support of this argument, plaintiffs simply state that the foreclosure was initiated based upon
manufactured misrepresentations by defendant. Plaintiffsâ brief does not, however, provide
citation to any relevant authority in support of this argument and, thus, does not conform to the
requirements of MCR 7.212(C)(7). âIt is not enough for an appellant to simply announce a
position or assert an error in his or her brief and then leave it up to this Court to discover and
rationalize the basis for the claims, or unravel and elaborate the appellant's arguments, and then
search for authority either to sustain or reject the appellant's position.â DeGeorge v Warheit, 276
Mich App 587, 594-595; 741 NW2d 384 (2007) (citation omitted). While we typically afford a
degree of leniency to litigants engaged in self representation, plaintiff's â[a]ppearance in pro per
does not excuse all application of court rules.â Bachor v Detroit, 49 Mich App 507, 512; 212
NW2d 302 (1973).
We do note that plaintiffsâ general argument is that a factual dispute remains as to
whether they were in default on their payments and thus whether foreclosure was inappropriate.
However, the letter attached to the partiesâ modification agreement indicated that a payment
would be due on the last day of each month in a varying amount. It appears from the documents
attached to plaintiffsâ response to defendantâs motion for summary disposition, submitted after
an August 18, 2010, payment âcatching upâ past due payments, another payment was not made
on the account until October 1, 2010, in the amount of $690.91. Plaintiffs have not disputed that
there was no payment made on the account for September 2010. They have also submitted no
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affidavit attesting to the claim of a lack of default on their part, despite the fact that defendant
provided the affidavit of its authorized representative swearing that plaintiffs have failed to make
payments on the account when due and have failed to pay in the correct amount. And, while
plaintiffs contend that they have made the âquoted payment dueâ of $1153.83 every month since
December 31, 2010, in a timely manner, there has been submitted no documentary evidence that
this amount is the accurate and owed monthly amount, given that the amount due was previously
represented to fluctuate on a monthly basis. Given the lack of documentary evidence provided
by plaintiffs in response to the affidavit and other documentary evidence provided by defendant
in support of their claim of default, the trial court did not err in granting summary disposition in
defendantâs favor on this claim.
Plaintiffs next assert that summary disposition was inappropriate with respect to their
claims of honest services fraud and mail fraud. Again, plaintiffs provide no citation to any
relevant authority in support of their argument and their brief lacks coherent explanation of the
basis for their claims. MCR 7.212(C)(7); DeGeorge v Warheit, 276 Mich App at 594-595.
Giving this issue cursory review in any event, count V of plaintiffsâ complaint is entitled âHonest
Services Fraudâ but specifically references violations of the Fair Debt Collection Practices Act.
This federal act, found at 15 USC § 1692 et seq., sets forth as its intended purpose, âto eliminate
abusive debt collection practices by debt collectors, to insure that those debt collectors who
refrain from using abusive debt collection practices are not competitively disadvantaged, and to
promote consistent State action to protect consumers against debt collection abuses.â 15 USC §
1692(e). The term âdebt collectorâ is specifically defined in the act to mean âany person who
uses any instrumentality of interstate commerce or the mails in any business the principal
purpose of which is the collection of any debts, or who regularly collects or attempts to collect,
directly or indirectly, debts owed or due or asserted to be owed or due another.â 15 USC §
1692a(6). The term specifically excludes from definition, however, âany officer or employee of
a creditor while, in the name of the creditor, collecting debts for such creditor.â 15 USC §
1692a(6)(A). Thus, any âdebt collectionâ activities of the creditor itself are not subject to the Fair
Debt Collection Practices Act. See, e.g., Walker v Michael W. Colton Trust, 33 F Supp 2d 585,
593 (ED Mich, 1999). Here, defendant was plaintiffsâ creditor and initiated debt collection
activities on its own behalf. It is thus not subject to the Fair Debt Collection Practices Act and
summary disposition was appropriate on this count.
Count XII of plaintiffsâ complaint sets forth a claim of mail fraud. 18 US § 1341
provides a criminal penalty for, âWhoever, having devised or intending to devise any scheme or
artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses
. . . [and] for the purpose of executing such scheme or artifice or attempting so to do, places in
any post office or authorized depository for mail matter, any matter or thing whatever to be sent
or delivered by the Postal Service . . .â In this matter, defendant provided an affidavit and
documentary evidence establishing that plaintiffs were late on and/or submitted insufficient
payments owing on a loan owed to defendant. Plaintiffs did not counter with a contradictory
affidavit and, in fact, their documentary evidence confirmed that they were, in fact, late on
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and/or submitted insufficient payments. Summary disposition was therefore appropriate on this
count. 2
Finally, plaintiffs claim that the trial courtâs grant of summary disposition in defendantâs
favor violated their right to equal protection under the 14th Amendment of the United States
Constitution. In their complaint, plaintiffs claimed that defendant violated various amendments
of the United States Constitution, including the 14th Amendment right to Equal Protection. The
Equal Protection Clause âis essentially a direction that all persons similarly situated should be
treated alike.â City of Cleburne v Cleburne Living Ctr, Inc, 473 US 432, 439; 105 S Ct 3249; 87
L Ed 2d 313 (1985). As correctly pointed out by the trial court, however, the 14th Amendment
affords protection only against state action and no state action was alleged by plaintiffs.
âEmbedded in our Fourteenth Amendment jurisprudence is a dichotomy between state action,
which is subject to scrutiny under the Amendmen[t] . . . , and private conduct, against which the
Amendment affords no shield, no matter how unfair that conduct may be.â Georgia v
McCollum, 505 US 42, 63; 112 S Ct 2348 (1992), quoting National Collegiate Athletic Assn v
Tarkanian, 488 US 179, 191; 109 S Ct 454; 102 L Ed 2d 469 (1988).
Plaintiffsâ argument on this issue now appears to be that the trial court violated their
equal protection rights because it considered defendantâs evidence in its entirety, but did not
adequately consider the evidence submitted by plaintiffs which, they argue, sufficiently created
questions of fact. Plaintiffs thus appear to argue that defendant, and its evidence, was given
preferential treatment. Again noting plaintiffsâ lack of citation to authority, the problem appears
to be plaintiffsâ difficulty understanding the Michigan court rules. Defendant submitted an
affidavit of its agent attesting to plaintiffsâ delinquency, coupled with documentary evidence
showing plaintiffsâ payment history through December 2010. Plaintiffs submitted letters they
had sent to defendant questioning the amount they owed, a payment history showing the exact
payment history defendant submitted, and no affidavit contradicting plaintiffsâ sworn statement
that plaintiffs had defaulted on the loan. The trial court held both parties to the same evidentiary
standard under the Michigan court rules and ruled appropriately based upon the evidence before
it. We find no error.
Affirmed.
/s/ Patrick M. Meter
/s/ Deborah A. Servitto
/s/ Cynthia Diane Stephens
2
Plaintiffs repeatedly point to their allegations that defendantâs agent is untruthful or acted in a
deceitful manner as creating questions of fact. However, absent sworn statements in the form of
an affidavit or deposition testimony, the allegations are just that. As previously stated, MCR
2.116(G)(4), requires that when a motion is made and supported under subrule (C)(10), an
adverse party may not rest upon mere allegations but must, by affidavits or otherwise set forth
specific facts showing there is a genuine issue for trial.
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