AARON RICHARD V SCHNEIDERMAN & SHERMAN PC (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
AARON RICHARD,
FOR PUBLICATION
July 3, 2012
9:20 a.m.
Plaintiff-Appellant,
v
SCHNEIDERMAN & SHERMAN, P.C., GMAC
MORTGAGE and MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
Defendants-Appellees.
No. 297353
Wayne Circuit Court
LC No. 10-000273-CZ
Advance Sheets Version
ON REMAND
Before: BORRELLO, P.J., and METER and SHAPIRO, JJ.
PER CURIAM.
This case, involving a nonjudicial foreclosure by advertisement, is before us on remand
from the Supreme Court, which vacated our prior opinion and remanded for reconsideration in
light of Residential Funding Co, LLC v Saurman, 490 Mich 909 (2011). Richard v
Schneiderman & Sherman, PC, 490 Mich 1001 (2012). We now affirm.
In both Saurman and this case, Homecomings Financial Network, Inc., made the
underlying loan. Also in both cases, Homecomings was designated as the lender on the
underlying note and as the lender, but not the mortgagee, on the mortgage. Mortgage Electronic
Registration Systems, Inc. (MERS) was listed as the mortgagee. Because the relationships
between MERS, Homecomings, and the borrowers in both cases are for pertinent purposes
identical, Saurman requires a holding that MERS was authorized to foreclose by advertisement.
Plaintiff also argues that the trial court erred by failing to rule on his motion to amend the
complaint after the court granted defendants’ motion for summary disposition. Plaintiff
primarily claims that a court clerk misinformed him by stating that the court would not hear the
motion to amend in light of the summary disposition ruling; in reliance on the clerk’s statement,
plaintiff states that he failed to appear for a hearing at which the court would have addressed his
motion. Significantly, plaintiff did not raise these claims of error before the trial court. He did
not request a ruling on his motion to amend at the March 26, 2010, hearing on defendants’
motion for summary disposition. He also failed to challenge the factual or legal correctness of
the clerk’s assertion that the motion would not be considered. Accordingly, plaintiff did not
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preserve his arguments for appeal and our review is for plain error. Duray Dev, LLC v Perrin,
288 Mich App 143, 149-150; 792 NW2d 749 (2010). “Plain error occurs at the trial court level if
(1) an error occurred (2) that was clear or obvious and (3) prejudiced the party, meaning it
affected the outcome of the lower court proceedings.” Id. at 150. In this case, even if we accept,
for purposes of argument, that clear errors attributable to the court resulted in the court’s failure
to hear plaintiff’s motion to amend the complaint, reversal is not required because plaintiff has
not shown that he was prejudiced.
In his original complaint, plaintiff centrally claimed that defendants’ debt collection and
foreclosure proceedings against him were flawed because defendants violated the Real Estate
Settlement and Procedures Act (RESPA), 12 USC 2601 et seq., and the Fair Debt Collection
Practices Act (FDCPA), 15 USC 1692 et seq. Plaintiff did not dispute that he had defaulted on
his mortgage. Rather, he alleged that defendants had failed to validate his debt because they had
refused to send him the original promissory note, instead of a copy of the note, associated with
his loan and mortgage. But the trial court implicitly accepted, through its ruling, defendants’
argument that plaintiff had failed to provide a cognizable argument or documentary evidence to
support his claim that the copy was insufficient to validate the debt or to raise a genuine question
regarding the authenticity of the original. 1 The trial court also accepted defendants’ argument
that plaintiff had failed to otherwise specify how the documents supplied to him by defendants
were insufficient to satisfy RESPA and the FDCPA or how any insufficiency invalidated the
foreclosure proceedings and subsequent sheriff’s sale of the property. Accordingly, the trial
court granted defendants’ motion for summary disposition under MCR 2.116(C)(10), concluding
that plaintiff had failed to provide documentary evidence supporting his allegations.
Plaintiff does not challenge the trial court’s ruling under MCR 2.116(C)(10). Rather, as
is most significant to plaintiff’s arguments on appeal, plaintiff moved to amend his complaint in
order to add new claims and supply detail with regard to his original claims. He correctly
observes that, pursuant to MCR 2.116(I)(5), “[i]f the grounds asserted [in support of summary
disposition] are based on subrule (C)(8), (9), or (10), the court shall give the parties an
opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before
the court shows that amendment would not be justified.” Of particular relevance here, MCR
2.118(A)(2) specifies that “a party may amend a pleading only by leave of the court or by written
consent of the adverse party. Leave shall be freely given when justice so requires.” Leave may
still be denied, however, if amendment would be futile. Decker v Rochowiak, 287 Mich App
666, 682; 791 NW2d 507 (2010).
In this case, amendment would have been futile. Plaintiff’s proposed amended complaint
primarily expanded his argument that defendants violated RESPA and the FDCPA by failing to
provide the original promissory note and other documents or information requested by plaintiff.
1
See MRE 1003 (“A duplicate is admissible to the same extent as an original unless (1) a
genuine question is raised as to the authenticity of the original or (2) in the circumstances it
would be unfair to admit the duplicate in lieu of the original.”).
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But the trial court had already determined that plaintiff had failed to support these claims, and
the additions to plaintiff’s proposed amended complaint concerning these claims were essentially
identical to the arguments he had advanced in opposition to defendants’ motion for summary
disposition.
To the extent plaintiff added other discernable claims not entirely dependent on the
success of the RESPA and FDCPA claims, he newly asserted that defendant Schneiderman &
Sherman, P.C. (Schneiderman) had violated MCL 600.3208 2 by failing to provide or post a copy
of the notice of foreclosure within 15 days of the first publication of the notice in a newspaper.
He also newly claimed that defendant GMAC Mortgage had never sent a notice of default or of
its intent to accelerate the mortgage before foreclosure. But because plaintiff raised these same
issues in opposition to defendants’ motion for summary disposition, defendants had already
offered evidence and argument to refute them, and plaintiff did not counter defendants’ offerings
with contrary documentary evidence. In particular, plaintiff offered no evidence or specific
argument to dispute the Affidavit of Posting provided by defendants, which states that
Schneiderman posted notice of foreclosure at the property on November 6, 2009, two days after
the notice of foreclosure was first published, on November 4, 2009, according to defendants’
Affidavit of Publication. Plaintiff also offered no evidence or argument to dispute that GMAC
sent plaintiff a notice of default, which also stated the accelerated amount of debt owed, through
its clearly identified collections agent, Schneiderman; defendants had provided proof of this fact
by offering a copy of the October 9, 2009, notice mailed to plaintiff by Schneiderman. Finally,
the remaining claims in plaintiff’s proposed amended complaint—including that defendants were
unjustly enriched or liable for slander of title—were dependent on plaintiff’s unsupported claims
that defendants had violated RESPA and the FDCPA or had provided improper notice of the
foreclosure proceedings.
In sum, most of the contents of plaintiff’s proposed amended complaint were subject to
dismissal under MCR 2.116(C)(10) for the same reasons his original complaint was subject to
dismissal. Plaintiff’s new claims were similarly subject to dismissal under this rule because he
offered no documentary evidence in support of them that would have been sufficient to challenge
defendants’ otherwise unrebutted evidence at trial. Accordingly, amendment of the complaint
would have been futile. For this reason, plaintiff was not prejudiced by the trial court’s failure to
rule on his motion for leave to amend the complaint or by the alleged misinformation that
plaintiff states caused him not to appear at a scheduled hearing to address his motion. Indeed,
plaintiff does not even argue that he was prejudiced because the trial court likely would have
granted his motion if he had appeared at the hearing; he simply argues that, had he not been
misinformed, he would have had the opportunity to orally argue his motion and would have
received a ruling on it.
2
The pertinent portion of MCL 600.3208 states, “In every case within 15 days after the first
publication of the notice, a true copy shall be posted in a conspicuous place upon any part of the
premises described in the notice.”
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Given that plaintiff has not shown that he was prejudiced because the outcome of the
proceedings likely would have been different absent any error, there is no plain error justifying
reversal. Duray Development, 288 Mich App at 150.
Affirmed.
/s/ Stephen L. Borrello
/s/ Patrick M. Meter
/s/ Douglas B. Shapiro
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