JOY L EBERLINE V NATIONAL CITY MORTGAGE INC
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STATE OF MICHIGAN
COURT OF APPEALS
JOY L. EBERLINE,
UNPUBLISHED
July 28, 2011
Plaintiff-Appellant,
and
WAYNE JOHNSON,
Plaintiff,
and
FARM BUREAU MUTUAL INSURANCE
COMPANY,
Intervening Plaintiff,
v
No. 292022
Livingston Circuit Court
LC No. 06-022513-NZ
NATIONAL CITY MORTGAGE, INC. and
DEFAULT SERVICING, INC.,
Defendants-Appellees,
and
DISTRESS SERVICES and GENE ESSE,
Defendants/Cross-Defendants,
and
MICHAEL AYOUB d/b/a REMAX TEAM 2000,
Defendant/Cross-Plaintiff,
and
MUSTAPHA ESSE,
Defendant.
Before: SAAD, P.J., and JANSEN and DONOFRIO, JJ.
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JANSEN, J. (concurring).
I concur in the result reached by the majority. However, I write separately to make clear
that if plaintiff had truly been a holdover tenant, National City Mortgage, Inc. (NCM) would not
have been able to escape liability merely by attempting to delegate to an independent contractor
the responsibility of evicting plaintiff from the premises.
Under Michigan’s anti-lockout statute, MCL 600.2918, “self-help is generally not
available to dispossess a tenant who is wrongfully in possession and has not abandoned or
voluntarily surrendered the premises.” Deroshia v Union Terminal Piers, 151 Mich App 715,
717; 391 NW2d 458 (1986). Instead, in order to evict a holdover tenant, a landlord must resort
to judicial process. Id. The anti-lockout statute “prohibit[s] forceful self-help regardless of
whether or not the tenant [i]s in rightful possession of the premises.” Id. at 718. “[U]nder the
antilockout law a tenant who is unlawfully dispossessed is entitled to recover actual damages
suffered as a result of the landlord’s use of self-help rather than judicial process.” Id. at 722.
Without question, NCM resorted to “self help” in the present case by improperly delegating to
Default Servicing, Inc. the responsibility of evicting plaintiff from the premises. Therefore, I
conclude that if plaintiff had been a holdover tenant, she would have been entitled to proceed
against NCM for damages. See id.
The problem, of course, is that the record contains no evidence to establish that plaintiff
ever had a landlord-tenant relationship with NCM. Nor have I located any authority to support
plaintiff’s contention that she became a holdover tenant by signing the deed and subsequently
remaining on the property. Accordingly, although I continue to believe that NCM’s delegation
of the responsibility of evicting plaintiff constituted unlawful self help, I must concur in the
result reached by the majority in this case.
/s/ Kathleen Jansen
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