                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 14a0060n.06
                                                                                    FILED
                                        No. 12-1794                            Jan 23, 2014
                                                                           DEBORAH S. HUNT, Clerk
                         UNITED STATES COURTS OF APPEALS
                              FOR THE SIXTH CIRCUIT

ARTHUR AND DOROTHY LAUDERDALE,                        )
                                                      )
       Plaintiffs-Appellants,                         )
                                                      )
v.                                                    )
                                                             ON APPEAL FROM THE
                                                      )
                                                             UNITED STATES DISTRICT
WELLS FARGO HOME MORTGAGE, HSBC                       )
                                                             COURT FOR THE EASTERN
BANK, N.A. and FIRST AMERICAN FINANCIAL               )
                                                             DISTRICT OF MICHIGAN
CORPORATION a/k/a FIRST AMERICAN FIELD                )
SERVICES AND PROPERTY PRESERVATION                    )
                                                             OPINION
COMPANY,                                              )
                                                      )
       Defendants-Appellees.                          )
                                                      )

       BEFORE:        MERRITT, SUTTON, and STRANCH, Circuit Judges.

       STRANCH, Circuit Judge.        Arthur and Dorothy Lauderdale brought a number of

statutory and common law claims against Wells Fargo Home Mortgage and HSBC Bank, N.A.

(collectively, “Wells Fargo,” the holder of the mortgage on plaintiffs’ house on Vernor

Highway) and against First American Financial Corporation. The Lauderdales alleged that

defendants improperly removed personal property from their Vernor house. They appeal the

district court’s grant of summary judgment to the defendants. For the reasons set forth below,

we AFFIRM the judgment of the district court.

                                    I. BACKGROUND


       In 2004, the Lauderdales took out a mortgage with Wells Fargo for a house on Vernor

Highway in Detroit. In 2008, the Lauderdales defaulted on their mortgage and the defendants
No. 12-1794
Lauderdale v. Wells Fargo, et al.

initiated foreclosure proceedings.     Wells Fargo hired First American to provide asset

management services for the Vernor house and First American then hired D&D Innovations

(D&D) to secure and preserve the house. At some point before the foreclosure sale, Wells Fargo

assigned the mortgage to HSBC.


       On September 17, 2008, Defendant D&D, acting pursuant to its contract with Defendant

First American, arrived at Plaintiffs’ property to perform a “secure.” This included talking to

neighbors about the status and occupancy of the property and changing the locks on the house.

The Lauderdales’ interrogatory answers stated that Mr. Lauderdale was present at the time and

that he spoke to the individuals who had come to secure the property. The individuals gave him

a phone number to call to reach a representative of First American. Mr. Lauderdale called and

was told he would get a call back, but never did. In their amended complaint, plaintiffs allege

that D&D representatives changed the locks, refused the plaintiffs entry, and removed a number

of items from the Vernor home. Representatives of Wells Fargo sent a letter to the Lauderdales

dated October 14, 2008 notifying them that Wells Fargo intended to foreclose on the Vernor

property. The property was subsequently sold at a Sheriff’s sale on November 12, 2008.


       The plaintiffs filed their complaint against Wells Fargo and First American in Wayne

County Circuit Court in Michigan on July 19, 2010, and the defendants subsequently removed

the case to the Eastern District of Michigan. On February 28, 2011, First American filed a third-

party complaint against D&D. On March 1, the plaintiffs responded by filing an amended

complaint naming D&D as a Defendant. D&D was never served in this litigation and at some

point before summary judgment, it went out of business. The district court dismissed D&D as a

defendant without prejudice because it had not been served or filed an appearance and granted

summary judgment to Wells Fargo and First American.
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Lauderdale v. Wells Fargo, et al.

                                         II. ANALYSIS


        This court reviews a district court’s grant of summary judgment de novo, and reviews

evidentiary findings for abuse of discretion. Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir.

2012). In considering a motion for summary judgment, the district court must view the evidence

and draw all reasonable inferences in favor of the nonmoving party. Id. “Summary judgment is

appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file,

together with any affidavits, show that there is no genuine issue as to any material fact such that

the movant is entitled to a judgment as a matter of law.” Villegas v. Metro. Gov’t of Nashville,

709 F.3d 563, 568 (6th Cir.2013) (internal quotation marks omitted); see Fed. R. Civ. P. 56(a),

(c).   Where the defendant does not have the burden of proof on an issue, he need only

demonstrate that the plaintiff cannot sustain her burden as to an essential element of the case.

Minadeo v. ICI Paints, 398 F.3d 751, 761 (6th Cir. 2005). Once that occurs, the plaintiff “must

show that she can make good on the promise of the pleadings by laying out enough evidence that

will be admissible at trial to demonstrate that a genuine issue on a material fact exists, and that a

trial is necessary.” Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (emphasis

omitted).


A. Decision Below


        The Lauderdales brought six claims against the defendants: (1) interference with their

possessory interest in the Vernor house without obtaining a court order to do so in violation of

Michigan’s Anti-Lockout Statute, Michigan Compiled Laws (MCL) § 600.2918 (amended Oct.

9, 2013); (2) common law conversion; (3) trespass to chattels; (4) statutory conversion; (5)

unjust enrichment; and (6) violations of the Michigan Consumer Protection Act (MCPA). In


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Lauderdale v. Wells Fargo, et al.

opposition to summary judgment, the Lauderdales submitted unsworn interrogatory answers, but

no sworn affidavits or depositions.


       In the summary judgment order, the district court held that the Lauderdales’ interrogatory

answers were not properly authenticated and thus could not be considered on summary

judgment. After rejecting the interrogatory answers, the district court dismissed the conversion,

trespass to chattels, and unjust enrichment claims because the Lauderdales did not produce any

other admissible evidence supporting their allegations that could be considered on summary

judgment. The district court also found that the anti-lockout claim was barred by the statute of

limitations and that the MCPA was not applicable to the conduct at issue. Plaintiffs assert all

these claims on appeal.


B. Michigan’s Anti-Lockout Statute


       On appeal, Plaintiffs allege that the defendants violated Michigan’s Anti-Lockout Statute,

which provides that “[a]n action for damages . . . shall be commenced within 1 year from the

time the cause of action arises or becomes known to the plaintiff.” MCL § 600.2918(6). Under

Michigan’s discovery rule, the statute of limitations begins to run “when the plaintiff discovers,

or through the exercise of reasonable diligence, should have discovered, the two later occurring

elements: (1) an injury, and (2) the causal connection between plaintiff’s injury and the

defendant’s breach.” Moll v. Abbott Labs., 506 N.W.2d 816, 824 (Mich. 1993). The purpose of

the discovery rule is to avoid extinguishment of a cause of action before the plaintiff is even

aware of the possible cause of action. Lemmerman v Fealk, 534 N.W.2d 695, 698 (Mich. 1995).


       Michigan has applied a discovery rule for certain causes of action but rejected it for

others. Stephens v. Dixon, 536 N.W.2d 755, 757–58 (Mich. 1995) (rejecting the discovery rule

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for claims of ordinary negligence). Michigan courts have not ruled on the applicability of the

discovery rule to the Anti-Lockout Statute.          If the discovery rule is not applicable, the

Lauderdales’ claim is time-barred because they filed the present action almost two years after the

alleged events, well beyond the statute’s one-year limitations period. However, even if the

discovery rule applies, the plaintiffs’ claim is still untimely.


        Mr. Lauderdale became aware of the alleged violation of the Anti-Lockout Statute on

September 17, 2008, when agents of First American came to the Vernor house to secure it. The

Lauderdales argue that the one-year statute of limitations did not begin to run on their claim until

February 28, 2011, when First American filed a third-party complaint revealing that D&D was

the agent that violated their rights. But D&D was never served and was dismissed from the

litigation. Thus the cause of action against First American and Wells Fargo arose or became

known in September of 2008 when the Lauderdales discovered the causal connection between

their injury and these defendants’ alleged responsibility for changing their locks.             The

Lauderdales’ complaint, filed on July 19, 2010, 10 months past the one-year filing deadline, was

late. MCL § 600.2918(6).


        The Lauderdales request equitable tolling against all defendants on the basis that

defendants failed to tell the Lauderdales of D&D. The doctrine of equitable tolling allows courts

to toll a statute of limitations “when a litigant’s failure to meet a legally-mandated deadline

unavoidably arose from circumstances beyond that litigant's control.” Graham-Humphreys v.

Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 560–61 (6th Cir. 2000). The Lauderdales

provide no evidence that they made any effort to discover who actually came to secure the

Vernor house on September 17, 2008 until nearly two years after the discovery of the injury.



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Lauderdale v. Wells Fargo, et al.

They have provided no basis for equitable tolling; the anti-lockout claim is thus barred by the

statute of limitations.


C. Conversion, Trespass to Chattels, and Unjust Enrichment


         Plaintiffs also contend that defendants are vicariously liable for common law and

statutory conversion, and, in the alternative, for trespass to chattels. “In Michigan, conversion is

defined generally as any distinct act of domain wrongfully exerted over another’s personal

property in denial of or inconsistent with the rights therein.” Sarver v. Detroit Edison Co., 571

N.W. 2d. 759, 761 (Mich. Ct. App. 1997). An unlawful lockout can be the basis of a conversion

claim.    J. Franklin Interests, L.L.C. v. Mu Meng, No. 296525, 2011 WL 4501841, at *7–10

(Mich. Ct. App. Sept. 29, 2011). “A trespass to chattels is actionable if one dispossesses another

of or intentionally and harmfully interferes with another’s property.” Mackie v. Bollore S.A., No.

286461, 2010 WL 673295, at *4 (Mich. Ct. App. Feb. 25, 2010). Citing Burns v. Kirkpatrick, 51

N.W. 893 (Mich. 1892), the Lauderdales correctly argue that the question in the trespass to

chattels claim is not whether the defendants had the right to enter the premises, but whether the

defendants wrongly exercised dominion over the Lauderdale’s personal property. See Price v.

High Pointe Oil Co., Inc., 828 N.W.2d 660, 669 n.8 (2013) (“[T]respass to chattel actually

deprives the owner of the chattel and, by necessity, causes actual damage.”).


         In addition to the conversion and trespass to chattels claims, the plaintiffs assert a claim

of unjust enrichment. In order to establish unjust enrichment, a plaintiff must prove: (1) that the

defendant received a benefit from the plaintiff and (2) that it is inequitable for the defendant to

retain the benefit. Wysong Corp. v. M.I. Indus., 412 F.Supp.2d 612, 624–25 (E.D. Mich. 2005).




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Lauderdale v. Wells Fargo, et al.

       The district court dismissed these claims because the Lauderdales failed to produce

evidence in support of their allegations. The Lauderdales produced no sworn affidavits or

depositions that could be considered during summary judgment. See Fed. R. Civ. P. 56(c).

During the summary judgment hearing, First American objected to consideration of the

Lauderdales’ interrogatory answers because Mr. Lauderdale signed them with the statement that

they were “true to the best of my information, knowledge and belief.” The district court

sustained the objection on the grounds that the interrogatory answers were not sworn or made

under penalty of perjury as required by 28 U.S.C. § 1746 and thus could not be considered

during summary judgment.


       On appeal, the Lauderdales contend that the interrogatory answers included sufficient

evidence in support of their allegations to defeat summary judgment and should have been

considered by the district court. They further contend that the defendants should have been

equitably estopped from objecting to the interrogatory answers at the summary judgment hearing

because the objection was not included in their motion for summary judgment.


       Federal Rules of Civil Procedure Rule 56 provides that interrogatory answers may be

considered as evidence during summary judgment. See Alexander, 576 F.3d at 558. In order to

be considered, however, such evidence must be sworn or made under the penalty of perjury.

Harris v. J.B. Robinson Jewelers, 627 F.3d 235, 239 n.1 (6th Cir. 2010); see also Pollock v.

Pollock, 154 F.3d 601, 611 n. 20 (6th Cir. 1998) (noting that unsworn declarations cannot be

considered as evidence for summary judgment unless “made under penalty of perjury, certified

as true and correct, dated, and signed.” (citing 28 U.S.C. § 1746)).




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Lauderdale v. Wells Fargo, et al.

       The Lauderdales provide no caselaw suggesting that a district court abuses its discretion

by not excluding an unsworn declaration from the requirements of 28 U.S.C. §1746. In addition,

a party certainly can object to the admissibility of evidence during a summary judgment hearing.

See Fed. R. Civ. P. 56(c)(2); Cf. Bertl v. City of Westland, No. 07-2547, 2009 WL 247907, at *3

(6th Cir. Feb. 2, 2009) (finding that objection to certain evidence during a summary judgment

hearing contests the evidence and preserves the issue for appeal).             As submitted, the

interrogatory answers did not include the statutorily-required affirmation, and thus the district

court did not abuse its discretion by refusing to consider them.


       The district court also did not consider the police report submitted by the Lauderdales on

summary judgment, which included Mr. Lauderdale’s list of the items allegedly stolen from the

house. Evidence submitted in opposition to summary judgment must be admissible at trial.

Alpert v. United States, 481 F.3d 404, 409 (6th Cir. 2007). Statements made by victims in a

police report are hearsay and are not admissible at trial to prove the truth of the matter asserted.

Miller v. Field, 35 F.3d 1088, 1091 (6th Cir. 1994). The district court did not abuse its discretion

by declining to consider the police report as evidence that the items were stolen.


       In contrast to its rejection of the police report and the Lauderdales’ interrogatory answers,

the district court did consider certain unauthenticated documents attached to First American’s

motion for summary judgment. The unauthenticated documents were a blank master vendor

agreement between Wells Fargo and First American, a document showing D&D as one of First

American’s contractors, and a First American Visit Report from D&D regarding its first trip to

secure the Lauderdale’s Vernor house. The first two documents merely helped establish the

general relationships among Wells Fargo, First American, and D&D, relationships that the

Lauderdales themselves argue existed. The Lauderdale’s concerns regarding the unauthenticated
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Lauderdale v. Wells Fargo, et al.

exhibits actually relate to the Visit Report, which includes an unsworn hearsay account from

D&D regarding what its representatives did at the Vernor house. In the summary judgment

order, the district court cited the Report and stated that it was uncontradicted, even though, had

the unsworn interrogatory answers been accepted as evidence, they would have contradicted the

report.


          The plaintiffs claim that the district court’s decision to consider the three documents was

inequitable because the court rejected the plaintiffs’ unsworn evidence. However, the plaintiffs

did not object to the lack of authentication of First American’s documents, whereas First

American did object to the interrogatory answers.1 Usually, when a party fails to object to

evidentiary materials submitted by the opposing party in support of summary judgment, the

objections are deemed forfeited or waived. Wiley v. United States, 20 F.3d 222, 225–26 (6th Cir.

1994). This court, however, will consider evidentiary objections made for the first time on

appeal to prevent “a gross miscarriage of justice.” Id.; see also Powers v. Hamilton Cnty. Pub.

Defender Comm’n, 501 F.3d 592, 613 n.3 (6th Cir. 2007).


          In Ford v. Securitas Security Services USA, Inc., 338 F. App’x 483 (6th Cir. 2009), we

considered such an objection in the context of an employment discrimination claim.               The

plaintiff argued that he was qualified for a firefighter position but the district court—relying on

inadmissible hearsay to find that the position required fire officer certification, which the

plaintiff lacked—granted summary judgment to the defendant. Id. at 487. The plaintiff objected

to the hearsay for the first time on appeal. Id. at 488. We found that it would be a gross



          1
        The Lauderdales did object to the fact that the documents were not properly produced or
disclosed pursuant to Federal Rules of Civil Procedure Rule 26(a) and that they received them
late. This does not address authentication of the evidence.
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miscarriage of justice not to grant the objection on appeal because no other admissible evidence

demonstrated that the position required fire officer certification. Id.


       Here, all three documents are relatively unimportant to the case, and the contractual

relationships that the documents help demonstrate are not contested. In fact, the Lauderdales’

claims rely on those same relationships. The district court further considered the Visit Report

when it reviewed Section 7 of the Mortgage Agreement as part of the trespass to chattels claim.

However, the district court had already found that Section 7 of the Mortgage Agreement was not

applicable. The district court’s consideration of First American’s exhibits does not rise to the

level of a gross miscarriage of justice because the exhibits were only relevant to demonstrate

uncontested facts.


       Because the district court’s evidentiary rulings were proper, the Lauderdales have no

admissible evidence demonstrating that the defendants or their agents wrongfully exerted

dominion over the Lauderdales’ property or received benefit from removal of any of that

property. The district court properly dismissed the conversion, trespass to chattels, and unjust

enrichment claims.


D. The Michigan Consumer Protection Act


       The Lauderdales allege a number of violations of the Michigan Consumer Protection Act

(MCPA). Wells Fargo argues that the MCPA is inapplicable because it does not apply to

transactions or conduct “specifically authorized under laws administered by a regulatory board or

officer acting under statutory authority of this state or the United States.”         M.C.L. §

445.904(1)(a). Wells Fargo raised the inapplicability of the MCPA as an affirmative defense in

its answer.

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Lauderdale v. Wells Fargo, et al.

       First American argues that the MCPA does not authorize a claim here because it applies

only to “the conduct of a business providing goods, property, or service primarily for personal,

family, or household purposes . . . .” M.C.L. § 445.902(g). The Lauderdales contend that First

American waived this affirmative defense by failing to raise it prior to its motion for summary

judgment. Federal Rule of Civil Procedure 8(c)(1) requires certain affirmative defenses to be

stated in the answer. “The Supreme Court has held that the purpose of Rule 8(c) is to give the

opposing party notice of the affirmative defense and a chance to rebut it.” Moore, Owen,

Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir. 1993) (quoting Blonder–Tongue

Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 350 (1971)). A district

court may, in its discretion, allow a defendant to raise an affirmative defense for the first time in

a motion for summary judgment if doing so does not result in surprise or prejudice to the

plaintiff. Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997); see also U.S. Fire Ins. Co. v. City

of Warren, 176 F.Supp.2d 728, 731 (E.D. Mich. 2001).


       Here, the MCPA claims against First American and Wells Fargo were identical and Wells

Fargo raised the defense properly, giving the Lauderdales notice that the affirmative defense

applied to the allegations at issue. Further, the Lauderdales have pointed to no additional

discovery evidence that would have been requested had First American raised the defense in its

answer. The district court did not abuse its discretion in allowing First American to raise the

affirmative defense in its summary judgment motion.


       “The intent of the MCPA is to protect consumers in their purchases of goods which are

primarily used for personal, family or household purposes.” Action Auto Glass v. Auto Glass

Specialists, 134 F. Supp. 2d 897, 899 (W.D. Mich. 2001). As the district court found, the MCPA

does not apply to either defendant because performing the “secure” on the plaintiffs’ property is
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Lauderdale v. Wells Fargo, et al.

not a service for a personal, family, or household purpose and thus the MCPA does not apply.

See MCL § 445.902(g). Further, the MCPA does not apply where the general transaction was

“specifically authorized under laws administered by a regulatory board or officer acting under

statutory authority of [Michigan] or the United States.” MCL §445.904(1)(a); see Newton v.

West, 686 N.W.2d 491, 493 (Mich. App. 2004). The Mortgage Agreement stated that Wells

Fargo is a national banking association, and national banking associations are authorized to

provide mortgages. 12 U.S.C. § 371(a). Thus, the MCPA would not apply to the defendants or

their agents performing a “secure” because the right to do so was included in Section 9 of the

Mortgage Agreement. Soto v. Wells Fargo Bank, N.A., No. 11-14064, 2012 WL 113534, at *8

(E.D. Mich. Jan. 13, 2012) (compiling cases exempting mortgages by regulated lending

institutions from the MPCA); see also Newton, 686 N.W.2d at 493 (exempting mortgages by

federal savings banks from the MCPA). The district court properly dismissed the MCPA claims.


                                    III. CONCLUSION


       For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to

the defendants.




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