                             STATE OF MICHIGAN

                              COURT OF APPEALS



JACQUELINE NOWICKI-HOCKEY,                                             UNPUBLISHED
                                                                       June 29, 2017
                 Plaintiff-Appellant,

v                                                                      No. 331584
                                                                       Montmorency Circuit Court
BANK OF AMERICA,                                                       LC No. 11-002674-CH

                 Defendant-Appellee.


Before: SAWYER, P.J., and MURRAY and GLEICHER, JJ.

MURRAY, J. (dissenting).

       For the reasons articulated below, the trial court order granting defendant’s motion for
summary disposition on all counts pursuant to MCR 2.116(C)(10) should be affirmed as there
was no genuine issue of material fact regarding whether plaintiff first substantially breached the
contract.

                                              I. FACTS

       Plaintiff purchased a second home in 1993 by “obtain[ing] a mortgage through First
America Bank.”1 Plaintiff refinanced in 1996.2 The relevant contract terms appear to be as
follows:

                Defendant gave plaintiff a loan for her property.

                Plaintiff promised to pay defendant:

                             o a $45,750 principal balance as of March 14, 1996;

                             o interest at a 7.375 annual rate “charged on [the] unpaid principal
                               until the full amount of [the] principal has been paid;” and




1
 Numerous transfers of the mortgage and note occurred over the years, with the note and
mortgage ultimately being assigned to defendant.
2
    Plaintiff refinanced with her ex-husband; he later quitclaimed the property to her.

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                          o “Escrow Items,” including “yearly taxes and assessments,” “yearly
                            leasehold payments or ground rents on the Property, if any,”
                            “yearly hazard or property insurance premiums,” “yearly flood
                            insurance premiums, if any,” and “yearly mortgage insurance
                            premiums, if any.”

                  Plaintiff promised to pay for these items with a monthly payment of:

                          o $315.98 per month, on the first day of each month, from May 1,
                            1996, through September 1, 2002:

                          o $429.57 per month, on the first day of each month, from October 1,
                            2002, through March 1, 2005;

                          o $784.21 per month, on the seventh day of each month, from April
                            7, 2005, through September or October 2006; and

                          o $820.98 per month, on the seventh day of each month, beginning
                            October 25, 2006.

                  Plaintiff would be in “default” if she failed to “pay the full amount of each
                   monthly payment on the date it [wa]s due.”

                  Defendant must discharge the mortgage once plaintiff pays “all sums secured
                   by” the mortgage.

       Over the years, each party alleged that the other failed to comply with the terms of the
note and mortgage: plaintiff claimed that defendant failed to timely apply and credit payments,
and defendant claimed that plaintiff failed to make timely payments. Ultimately, plaintiff
alleged that defendant “declared a default,” “invoked the power of sale pursuant to . . . the
mortgage document,” and scheduled a “sheriff’s sale” for the home on January 6, 2011. She
moved for a temporary restraining order (TRO) to stop the sale, and the trial court granted her
motion.

        Plaintiff also filed a complaint that asserted, amongst other claims, a breach of contract.
She argued that defendant breached the “Note and/or mortgage” (1) “by failing to post and credit
documents and/or note” and/or by (2) “revers[ing plaintiff’s] payments . . . without legal
authority to do so,” causing plaintiff damages.3



3
  Defendant filed a notice of removal to the United States District Court for the Eastern District
of Michigan, arguing that the federal court had “original diversity jurisdiction” pursuant to 28
USC 1332. The Court entered an order granting summary judgment for defendant on the basis
that plaintiff was the first to substantially breach the contract. Nowicki-Hockey v Bank of
America, unpublished order of the United States District Court for the Eastern District of
Michigan, entered January 31, 2014 (Case No. 11-cv-10482), pp 4-7, 10, 12. Plaintiff appealed
to the Sixth Circuit. Nowicki-Hockey v Bank of America, NA, 593 Fed Appx 420 (2014). It held

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       Defendant moved for summary disposition on all counts pursuant to MCR 2.116(C)(8)
and (C)(10). It argued that “no material questions of fact remain” because plaintiff failed to
meet her burden to show that defendant breached the note or mortgage and, instead, the evidence
showed that plaintiff breached the note and mortgage 15 times. Further, it asserted that the party
“who first breaches a contract cannot maintain an action against the other contracting party for
his subsequent breach or failure to perform,” and that plaintiff first breached the note when she
missed her April 2005 payment. Then, defendant argued, plaintiff admitted to “numerous”
subsequent breaches and had still failed to pay off her loan.

       Plaintiff argued that the trial court should have granted summary disposition for her, not
defendant. Again, she alleged that defendant and its predecessors “failed to post and credit [her]
account with . . . payments made pursuant to the note and mortgage and reversed payments made
without legal authority to do so” “for years,” as discussed above. By doing so, plaintiff argued,
defendant first breached the note and mortgage. Plaintiff also argued that she fully paid her
mortgage.

        In a written opinion and order, the trial court granted summary disposition for defendant.
It found that the case involved “one basic issue: Whether . . . plaintiff has paid off her mortgage,”
and concluded that plaintiff had not. The trial court found reliance on Karl Haiser’s forensic
accounting reports to be “misplaced” and “insufficient to establish any material question of fact”
because the report “is admittedly incomplete” as it “concedes that ‘several open items . . . need to
be reconciled to bring complete closure.’ ” The trial court concluded that plaintiff substantially
breached the note first, with a missed payment constituting a “default” in April 2005, and
because plaintiff was the first party to substantially breach the parties’ agreement, she could not
maintain a breach of contract action against defendant.

       This appeal followed.

                                          II. ANALYSIS

       We review de novo trial court decisions on summary disposition motions under MCR
2.116(C)(10), Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999), and issues of
contract interpretation, Bank of America, NA v Fidelity Nat’l Title Ins Co, 316 Mich App 480,
488; 892 NW2d 467 (2016).

       The trial court granted summary disposition for defendant pursuant to MCR
2.116(C)(10), as it found that defendant’s evidence was “uncontradicted.” An MCR
2.116(C)(10) motion tests the factual sufficiency of a complaint. Joseph v Auto Club Ins Ass’n,
491 Mich 200, 206; 815 NW2d 412 (2012). The nonmoving party has the burden to provide
evidence of a genuine issue of material fact by providing “some statement of specific fact”
providing the basis for each element of the case. Skinner v Square D Co, 445 Mich 153, 160-
161; 516 NW2d 475 (1994), overruled in part on other grounds by Smith v Global Life Ins Co,
460 Mich 446, 455 n 2; 597 NW2d 28 (1999). “Affidavits, depositions, admissions, and
documentary evidence offered . . . shall only be considered to the extent that the content or
substance would be admissible as evidence to establish or deny the grounds stated in the
that the action did not “satisfy the $75,000 amount-in-controversy requirement for diversity
jurisdiction,” and vacated the district court’s judgment. Id. at 421-422. The District Court
remanded the case to the circuit court.

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motion.” MCR 2.116(G)(6). The evidence must be plausibly admissible in substance. Barnard
Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 373; 775 NW2d 618
(2009). The evidence need not be admissible in form. Id. All foundation for admission need not
be laid at the summary disposition stage. Id. Finally, the trial court reviews the then-existing
record in the light most favorable to the nonmoving party. Maiden, 461 Mich at 118; Joseph,
491 Mich at 206.

        To sustain a breach of contract claim, a plaintiff must “ ‘establish by a preponderance of
the evidence that (1) there was a contract, (2) [the defendant] breached the contract, and (3) the
breach resulted in damages to [the plaintiff.]’ ” Fidelity Nat’l Title Ins Co, 316 Mich App at 489,
quoting Bank of America, NA v First American Title Ins Co, 499 Mich 74, 100; 878 NW2d 816
(2016).

       Defendant does not dispute that the parties had a contract or dispute any of plaintiff’s
characterizations of its terms, which are outlined in their note and mortgage. The parties also
agreed to modify the note and mortgage’s repayment terms through the 2002, 2005, and 2006
repayment plans. See Adell Broadcasting v Apex Media Sales, 269 Mich App 6, 11; 708 NW2d
778 (2005) (explaining “that parties to a contract may contract to modify the contract by a later
agreement”).

        Plaintiff argues that defendant breached this agreement (1) “by failing to post and credit
[her] payments in a manner consistent with the recorded mortgage and/or other recorded
documents and/or note” and by (2) “revers[ing plaintiff’s] payments . . . without legal authority
to do so.” As a result, plaintiff argues, she has now paid off her mortgage and yet, defendant has
failed to discharge it.

        Plaintiff’s breach of contract claim would fail if she substantially breached the parties’
contract before defendant. McCarty v Mercury Metalcraft Co, 372 Mich 567, 573-574; 127
NW2d 340 (1964). If a party “ ‘commits the first substantial breach of a contract[, it] cannot
maintain an action against the other contracting party for a subsequent failure . . . to perform.’ ”
Id. at 573, quoting Jones v Berkey, 181 Mich 472, 480; 148 NW 375 (1914). A breach is
substantial if it “effected such a change in essential operative elements of the contract that further
performance by the other party is thereby rendered ineffective or impossible, such as the causing
of a complete failure of consideration . . . or the prevention of further performance by the other
party . . . .” Id. at 574. “To determine whether a substantial breach occurred, a trial court
considers ‘whether the nonbreaching party obtained the benefit which he or she reasonably
expected to receive.’ ” Able Demolition v Pontiac, 275 Mich App 577, 585; 739 NW2d 696
(2007), quoting Holtzlander v Brownell, 182 Mich App 716, 722; 453 NW2d 295 (1990). In a
breach of contract claim involving a mortgage, this Court has concluded that a substantial breach
occurred by a mortgagor “being in default on their taxes,” which could “result in forfeiture of the
property entirely.” See Patrick v Shaw, 275 Mich App 201, 203, 205-206; 739 NW2d 365
(2007).4



4
  Plaintiff argues that the trial court erred in considering whether she substantially breached the
contract because the doctrine only applies in commercial contexts. However, our Supreme Court
placed no such limitation on the doctrine. See McCarty, 372 Mich at 573-574. And the Court in

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        Plaintiff argues that the trial court erred in finding that any breach of the mortgage or note
on her behalf was substantial. The first, uncontested breach of the contract by plaintiff occurred
in June 2005. Plaintiff owed a $784.21 monthly payment on June 7, 2005, but her own evidence
shows that her check was not dated until June 10, 2005, was not captured until June 28, 2005,
and then was later cancelled. Defendant’s accounting has no record of the payment. Other
uncontested breaches appear to have occurred in July 2005, June 2006, and August 2006. All of
plaintiff’s evidence shows that she did not make these payments on time, and defendant’s
accounting has no record of payment. The parties’ Note reads that plaintiff would be in
“default” if she failed to “pay the full amount of each monthly payment on the date it [wa]s due.”
Thus, plaintiff’s breach was substantial. See Patrick, 275 Mich App at 203, 205-206.
Additionally, more recently, plaintiff failed to make property tax payments, which defendant
paid in order to preserve the property. This also constitutes a substantial breach. Patrick, 275
Mich App at 205-206.

        On the other hand, and as the federal judges concluded, the breaches plaintiff asserts
defendant made, even if accurate, cannot be considered substantial because they did not render
further performance of the contract ineffective or impossible. Specifically, plaintiff provided
some evidence that defendant’s predecessors failed to post payments in a timely manner or failed
to post them at all in the following months: March 2004, April 2004, May 2004, June 2004, July
2004, August 2004, September 2004, October 2004, November 2004, December 2004, January
2005, February 2005, April 2005, May 2005, August 2005, September 2005, October 2005,
November 2005, December 2005, February 2007, and June 2008. However, following these
alleged breaches, plaintiff continued to perform under the parties’ agreement by making or
attempting to make mortgage payments. And, she continued to receive the benefit expected from
the transactions—the loan utilized to purchase the property. Able Demolition, 275 Mich App at
585. Thus, the trial court did not err when it granted summary disposition of plaintiff’s breach of
contract claim.

        The majority opinion’s criticism of the trial court’s opinion misses the mark. The trial
court’s reference to plaintiff having to prove she paid off her mortgage to avoid summary
disposition was stated in the context of what plaintiff was alleging, i.e., that she had paid all the
mortgage and was entitled to prevail on her complaint. Naturally, if she could not submit
evidence in support of the breach of contract claim—which obviously was the foundation to her
case—she could not avoid summary disposition of her claims. Contrary to the majority
opinion’s implication, she did not allege in her complaint that she should prevail on her claims
because she had until 2026 to pay off the mortgage.

       For these reasons, I would affirm the trial court’s order.



                                                              /s/ Christopher M. Murray




Patrick, 275 Mich App at 203, 205-206, discussed substantial breaches in the context of a
mortgage breach of contract claim.


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