                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0790n.06

                                           No. 12-1953                                  FILED
                                                                                    Aug 27, 2013
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


ROBERT CARMACK,                                          )
                                                         )     ON APPEAL FROM THE
       Plaintiff - Appellant,                            )     UNITED STATES DISTRICT
                                                         )     COURT FOR THE EASTERN
               v.                                        )     DISTRICT OF MICHIGAN
                                                         )
                                                         )
THE BANK OF NEW YORK MELLON, As
                                                         )
Trustee for the Certificateholders CWALT, Inc.,          )
Alternative Loan Trust 2005-J12 Mortgage                 )
Pass-Through Certificates, Series 2005-J12;              )
COUNTRYWIDE HOME LOANS, INC.; BANK                       )
OF AMERICA, NA,                                          )
                                                         )
       Defendants - Appellees.                           )
                                                         )

BEFORE: GIBBONS and WHITE, Circuit Judges; GREER, District Judge.*

       HELENE N. WHITE, Circuit Judge. Plaintiff Robert Carmack appeals the district court’s

dismissal of his action seeking to set aside the foreclosure sale of mortgaged property in Woodhaven,

Michigan. Because Carmack failed to redeem the property within the statutory redemption period,

Mich. Comp. Laws § 600.3240(8), and does not allege the clear fraud or irregularity in the

foreclosure process that is required to challenge the foreclosure after the redemption period has

expired, Conlin v. Mortg. Elec. Registration Sys., 714 F.3d 355, 359 60 (6th Cir. 2013), we

AFFIRM.


       *
       The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 12-1953
Carmack v. The Bank of New York Mellon, et al.

                                                I.

                                                A.

       In October 2001, Carmack obtained a mortgage loan from Countrywide Home Loans

(Countrywide or Lender) to finance his purchase of property in Woodhaven, Michigan. He executed

a promissory note in the amount of $348,000 and granted a mortgage against the property to

Mortgage Electronic Registration Systems (MERS) in its capacity as “nominee for Lender and

Lender’s successors and assigns.” The mortgage granted MERS, its successors and assigns the

power of sale as to the property for the purpose of securing the loan’s repayment. In January 2002,

the mortgage was recorded with the Wayne County Register of Deeds.

       Thereafter, the note was transferred to a securitized trust named CWALT, Inc. Alternative

Loan Trust 2005-J12 Mortgage Pass-Through Certificates, Series 2005-J12 (the “CWALT Trust”),

which is governed by a pooling and serving agreement. In October 2009, MERS, in its capacity as

nominee for “Lender and Lender’s successors and assigns,” assigned the mortgage to The Bank of

New York Mellon (“BNYM”), which accepted the mortgage in its role as trustee for the CWALT

Trust. In November 2009, this assignment was recorded with the Wayne County Register of Deeds.

       Meanwhile, Carmack defaulted on his loan payments. BNYM issued a notice of mortgage

foreclosure sale by advertisement. On September 7, 2011, the property was sold at a sheriff’s sale,

at which BNYM purchased the property with a credit bid of $503,456.08. Later that month, the

sheriff’s deed was recorded with the Wayne County Register of Deeds.




                                                2
No. 12-1953
Carmack v. The Bank of New York Mellon, et al.

                                                  B.

        In March 2012, Carmack filed this action in Michigan state court against BNYM, as well as

his original lender, Countrywide, and the loan servicer, Bank of America (collectively, Defendants).

He asserted a wrongful foreclosure claim against BNYM, seeking a declaration that the assignment

of the mortgage and sheriff’s deed are void ab initio, as well as an order setting aside the foreclosure

sale and vesting title in his favor.1 Defendants removed the case to federal court on diversity

grounds. In June 2012, the district court granted Defendants’ motion to dismiss, concluding that,

because Carmack failed to redeem his property within the statutory redemption period and his

allegations do not fall within the clear showing of fraud or irregularity exception under Michigan

law, he failed to allege a plausible claim that the foreclosure sale should be set aside. Carmack v.

The Bank of N.Y. Mellon, No. 12-cv-11669, 2012 WL 2389863 (E.D. Mich. June 25, 2012).

Carmack timely appealed.

                                                  II.

                                                  A.

        We review de novo the district court’s dismissal of Carmack’s complaint under Federal Rule

of Civil Procedure 12(b)(6). Conlin, 714 F.3d at 358. The parties do not dispute that the district

court properly determined that Michigan law applies in this diversity action. “In resolving issues of

Michigan law, we look to the final decisions of that state’s highest court, and if there is no decision


       1
          In addition to the wrongful foreclosure claim, Carmack alleged claims of conversion, slander
of title, breach of contract, and quiet title. However, because Carmack fails to raise any argument
with respect to these other claims in his appellate brief, they are deemed abandoned. See Fed. R.
App. P. 28(a)(5)&(9); Marks v. Newcourt Credit Grp., Inc., 342 F.3d 444, 462 (6th Cir. 2003).

                                                   3
No. 12-1953
Carmack v. The Bank of New York Mellon, et al.

directly on point, then we must . . . determine how that court, if presented with the issue, would

resolve it.” Id. at 358 59. “In making this determination, intermediate state appellate courts’

decisions are also viewed as persuasive unless it is shown that the state’s highest court would decide

the issue differently.” Id. at 359 (internal quotation marks and alteration brackets omitted).

                                                  B.

       “Non-judicial foreclosures, or foreclosures by advertisement, are governed by statute under

Michigan law.” Conlin, 714 F.3d at 359; see Mich. Comp. Laws § 600.3204; Senters v. Ottawa Sav.

Bank, FSB, 503 N.W.2d 639, 641 (Mich. 1993). Carmack does not dispute that he had six months

after the sheriff’s sale in which to redeem the property. See Mich. Comp. Laws § 600.3240(8).

“Once this statutory redemption period lapses, however, [his] ‘right, title, and interest in and to the

property’ are extinguished.” Conlin, 714 F.3d at 359 (quoting Piotrowski v. State Land Office Bd.,

4 N.W.2d 514, 517 (Mich. 1942), and citing Mich. Comp. Laws § 600.3236). “Michigan courts have

held that once the statutory redemption period lapses, they can only entertain the setting aside of a

foreclosure sale where the mortgagor has made ‘a clear showing of fraud, or irregularity.’”2 Id.


       2
         Contrary to Carmack’s argument, the district court did not dismiss this action on the basis
that he lacked standing due to his failure to allege clear fraud or irregularity in the foreclosure
process to excuse his failure to redeem within the statutory redemption period. The term “standing”
does not appear in the district court’s opinion. To the extent courts have referred to a plaintiff’s
failure to meet this redemption standard as one of standing, it is limited to standing under Michigan
law, not Article III. See Williams v. Pledged Prop. II, LLC, 508 F. App’x 465, 467 & n.2 (6th Cir.
2012); but see El-Seblani v. IndyMac Mortg. Servs., 510 F. App’x 425, 429 (6th Cir. 2013)
(concluding that “[i]t is more accurate to say that the ‘fraud or irregularity’ claims . . . lacked
sufficient merit to meet the high standard imposed by Michigan law on claims to set aside a
foreclosure sale,” rather than to say that the plaintiff lacked standing). In any event, “[w]hether the
failure to make this showing is best classified as [a] standing issue or as a merits determination, one
thing is clear: a plaintiff-mortgagor must meet this ‘high standard’ in order to have a foreclosure set

                                                  4
No. 12-1953
Carmack v. The Bank of New York Mellon, et al.

(quoting Schulthies v. Barron, 167 N.W.2d 784, 785 (Mich. Ct. App. 1969)). “It is further clear that

not just any type of fraud will suffice. Rather, ‘[t]he misconduct must relate to the foreclosure

procedure itself.’” Id. at 360 (alteration in original) (quoting El-Seblani v. IndyMac Mortg. Servs.,

510 F. App’x 425, 429 (6th Cir. 2013)). Here, “[a]s the six-month statutory redemption period has

long since lapsed and the filing of a lawsuit is ‘insufficient to toll the redemption period,’ [Carmack]

must make a clear showing of fraud or irregularity to maintain this action.” Id. (quoting Overton v.

Mortg. Elec. Registration Sys., No. 284950, 2009 WL 1507342, at *1 (Mich. Ct. App. May 28,

2009)).

                                                    C.

          In attempting to establish fraud or irregularity in the foreclosure process, Carmack argues that

he may challenge the validity of the mortgage assignment to BNYM because his claims regarding

the assignment’s validity “go to the heart of whether Michigan’s foreclosure by advertisement

[procedure] was followed,” namely whether BNYM held title to the mortgage as required by Mich.

Comp. Laws § 600.3204(3) and whether it held an interest in the indebtedness as required by

§ 600.3204(1)(d).3



aside after the lapse of the statutory redemption period.” Conlin, 714 F.3d at 359 60 (internal
footnotes omitted).
          3
         Section 600.3204(3) provides: “If the party foreclosing a mortgage by advertisement is not
the original mortgagee, a record chain of title shall exist prior to the date of sale [in a foreclosure by
advertisement proceeding] . . . evidencing the assignment of the mortgage to the party foreclosing
the mortgage.” Section 600.3204(1)(d) provides that “a party may foreclose a mortgage by
advertisement if . . . [it] is either the owner of the indebtedness or of an interest in the indebtedness
secured by the mortgage or the servicing agent of the mortgage.”

                                                     5
No. 12-1953
Carmack v. The Bank of New York Mellon, et al.

       In an appeal challenging a foreclosure by advertisement, this court reasoned that the plain

language of Mich. Comp. Laws § 600.3204(3) required only that the public record show that the

mortgage had passed to the foreclosing party and that a record chain of title is not “destroyed by an

irregularity affecting the validity of a transfer.” Livonia Props. Holdings, LLC v. 12840-12976

Farmington Rd. Holdings, LLC, 399 F. App’x 97, 101 02 (6th Cir. 2010). The court further

reasoned that “even if there were a flaw in the assignment, [the borrower did] not have standing to

raise that flaw to challenge [the assignee]’s chain of title.” Id. at 102. The court agreed with the

district court’s observation that “there is ample authority to support the proposition that a litigant

who is not a party to an assignment lacks standing to challenge that assignment.” Id. (internal

quotation marks omitted); cf. Bowles v. Oakman, 225 N.W. 613, 614 (Mich. 1929) (holding that

promissor could not challenge obligations under a note by asserting that an invalid assignment had

occurred).

       Carmack correctly notes that Livonia’s statement on standing should not be read broadly to

preclude all borrowers from challenging the validity of mortgage assignments under Michigan law.

As this court explained in Livonia:

       An obligor “may assert as a defense any matter which renders the assignment
       absolutely invalid or ineffective, or void.” 6A C.J.S. Assignments § 132 (2010).
       These defenses include nonassignability of the instrument, assignee’s lack of title,
       and a prior revocation of the assignment, none of which are available in the current
       matter. Id. Obligors have standing to raise these claims because they cannot
       otherwise protect themselves from having to pay the same debt twice. Id.
Livonia Props. Holdings, LLC, 399 F. App’x at 102. The court then rejected the borrower’s

challenge to the assignment’s validity:



                                                  6
No. 12-1953
Carmack v. The Bank of New York Mellon, et al.

       In this case, [the borrower] is not at risk of paying the debt twice, because [the
       assignee] has established that it holds the original note. [The assignee] has produced
       ample documentation that it was in possession of the note and had been assigned all
       rights therein prior to the initiation of foreclosure proceedings. The district court
       reviewed the copies in exhibits and the originals produced by [the assignee] and was
       satisfied that they were authentic. Without a genuine claim that [the assignee] is not
       the rightful owner of the loan and that [the borrower] might therefore be subject to
       double liability on its debt, [the borrower] cannot credibly claim to have standing to
       challenge the First Assignment.

Id. Further, the court stated that “a party subject to foreclosure has standing to challenge whether

a lender holds record chain of title, but that determination is limited to an examination of the public

records.” Id. at 103. Citing Livonia, Michigan appellate courts have rejected challenges to mortgage

assignments, but have recognized that such challenges may be permitted “under limited

circumstances,” ostensibly where the borrower has a valid claim that he will face double liability.

See, e.g., Bank of N.Y. Mellon Trust Co., Nat’l Ass’n v. Monsivaes, No. 310696, 2013 WL 2495045,

at *3 n.4 (Mich. Ct. App. June 11, 2013); Famatiga v. Mortg. Elec. Registration Sys., No. 304726,

2013 WL 1137186, at *2 (Mich. Ct. App. Mar. 19, 2013).

       Under Livonia, Carmack’s challenge to the mortgage assignment under § 600.3204(3)’s

chain-of-title requirement is limited in scope, as the assignment was recorded with the Wayne

County Register of Deeds and Carmack does not allege that any public record undermines the chain

of title as recorded. Nevertheless, Carmack’s challenge also implicates § 600.3204(1)(d)’s

requirement that the foreclosing party own the indebtedness or an interest in the indebtedness

secured by the mortgage or be the servicing agent of the mortgage. Livonia did not address this




                                                  7
No. 12-1953
Carmack v. The Bank of New York Mellon, et al.

requirement. See Talton v. BAC Home Loans Servicing LP, 839 F. Supp. 2d 896, 906 07 (E.D.

Mich. 2012) (distinguishing Livonia on this basis).4

        Carmack, however, faces a significant hurdle in pressing his claims because a borrower

raising a § 600.3204 defect must do more than rest his case on speculative, future harm. He must

establish prejudice (such as double liability) resulting from the foreclosing party’s failure to adhere

to the statute’s requirements. “Recently, in Kim v. JPMorgan Chase Bank, N.A., 825 N.W.2d 329

(Mich. 2012), the Michigan Supreme Court made clear that failure to comply with the conditions set

forth in Michigan’s foreclosure-by-advertisement statute[, Mich. Comp. Laws § 600.3204,] does not

render flawed foreclosures void (i.e., void ab initio) but merely voidable.” Conlin, 714 F.3d at 361

(internal citation altered). To establish an actionable defect under § 600.3204, a plaintiff must show

that he was prejudiced     i.e., he “must show that [he] would have been in a better position to



        4
           The district court stated that Carmack “is not permitted, as he tries to do here, to challenge
the capacity of the foreclosing mortgagee or to raise any other challenges except challenges to the
foreclosure procedure,” citing Reid v. Rylander, 270 Mich. 263 (1935). Carmack, 2012 WL
2389863, at *2 3. Defendants advance a similar argument on appeal, relying on Reid. In Reid, the
Michigan Supreme Court held that a former owner may holdover after foreclosure by advertisement
and challenge the validity of the foreclosure in a summary eviction proceeding brought before a
circuit court commissioner by the trustee under the mortgage to obtain possession of the property,
but the former owner is limited to challenging the foreclosure procedure and cannot challenge
“underlying equities, if any, bearing on the instrument, [or] legal capacity of the mortgagee or
trustee[.]” 258 N.W. at 631. This is because “[i]t is well established that the jurisdiction of a circuit
court commissioner in summary proceedings is strictly statutory and such court is without authority
to try title to land. Nor does it have equitable jurisdiction.” Zak v. Gray, 37 N.W.2d 550, 551 (Mich.
1949) (internal citations omitted). The instant action, however, is not a summary proceeding in
Michigan court. Reid, therefore, does not limit this court’s power to entertain Carmack’s post-
redemption collateral attack on the foreclosure process premised on BNYM’s alleged failure to
satisfy the requirements set forth in the foreclosure-by-advertisement statute, Mich. Comp. Laws
§ 600.3204.

                                                   8
No. 12-1953
Carmack v. The Bank of New York Mellon, et al.

preserve [his] interest in the property absent defendant’s noncompliance with the statute.” Kim, 825

N.W.2d at 337; see Conlin, 714 F.3d at 362 (“Post-Kim, Michigan mortgagors seeking to set aside

a sheriff’s sale under § 600.3204 will have to demonstrate prejudice (e.g., double liability)[.]”).

       The Kim decision was issued in December 2012, after the district court’s ruling in this case

and the filing of Carmack’s appellate brief. In a supplemental brief, Carmack asserts that he should

be granted the opportunity to amend his complaint given this change in the law, to allow him to

allege “specific instances of prejudice.” Nevertheless, we conclude that leave to amend would be

futile because Carmack’s claims challenging the mortgage assignment, which are his grounds for

alleging fraud or irregularity in the foreclosure-by-advertisement process, are without merit.5

                                                 D.

1.     Michigan’s statute on uses and trusts

       Carmack first claims that the assignment of the mortgage to BNYM “as trustee for the

Certificateholders CWALT, Inc. Alternative Loan Trust 2005-J12 Mortgage Pass-Through

Certificates, Series 2005-J12” violated a provision of Michigan’s statute on uses and trusts, Mich.

Comp. Laws § 555.5, which states:

       Every disposition of lands, whether by deed or devise, hereafter made, except as
       otherwise provided in this chapter, shall be directly to the person in whom the right
       to the possession and the profits shall be intended to be vested, and not to any other,
       to the use of, or in trust for, such person; and if made to 1 or more persons, in trust



       5
        To the extent that Carmack asserts (without any developed argument) that the mortgage
assignment was “forged” or “robosigned,” these claims do not appear in his complaint. Nor did he
seek leave to amend his complaint to add these claims. We therefore deem these claims waived.
See United States v. Stewart, 628 F.3d 246, 256 (6th Cir. 2010); DaimlerChrysler Corp. Healthcare
Benefits Plan v. Durden, 448 F.3d 918, 922 (6th Cir. 2006).
                                                 9
No. 12-1953
Carmack v. The Bank of New York Mellon, et al.

        for, or to the use of another, no estate or interest, legal or equitable, shall vest in the
        trustee.

        Carmack contends that the CWALT Trust is a passive trust and therefore the assignment of

mortgage to BNYM as trustee did not vest a security interest in BNYM. By virtue of Michigan’s

prohibition against passive trusts, Carmack contends that BNYM is not the valid mortgage holder

and could not properly foreclose the mortgage under § 600.3204.

        A passive trust “is defined to be a trust in which the property is vested in one person upon

trust for another, and the nature of the trust, not being qualified by the settlor, is left to construction

of the law.” Woolfitt v. Histed, 175 N.W. 286, 288 (Mich. 1919) (internal quotation marks omitted);

see Cone v. Zelony, No. 233034, 2003 WL 21995422, at *1 (Mich. Ct. App. Aug. 21, 2003)

(explaining that a trust is passive when the trustee has no duties, and affirming a lower court’s

finding that trust was not passive where the trustee was “charged with holding title”); 1 John G.

Cameron, Jr., Michigan Real Property Law: Principles and Commentary § 10.4 at 369 n.7 (3d ed.

2005) (“The trustee under a passive trust has no power of actual disposition and management, and

no trust duties imposed on the trustee.”). “Passive trusts are abolished by statute in [Michigan], but

where a deed is so worded as to create a passive or naked trust, [the] statute on uses and trusts . . .

executes it by forthwith passing the title to the beneficiary.” Woolfitt, 175 N.W. at 288; see Bays v.

Charter Twp. of Waterford, No. 237782, 2003 WL 1883463, at *2 (Mich. Ct. App. Apr. 15, 2003)

(holding that a deed that conveyed property to a township “to be held in trust for the lot owners”

vested legal title to the property in the beneficiaries, i.e., the lot owners, and not in the township).




                                                    10
No. 12-1953
Carmack v. The Bank of New York Mellon, et al.

According to Carmack, any transfer of the mortgage interest in his property vested that interest in

the certificate holders of the CWALT Trust        not BNYM       by operation of § 555.5.

        Section 555.5, however, concerns “disposition of lands, whether by deed or devise” rather

than assignments of security interests. Further, as the district court correctly observed, the statute

does not apply to a conveyance to an existing trust but rather pertains to a conveyance that purports

to create a trust without any duties. See Loring v. Palmer, 118 U.S. 321, 343 44 (1886) (holding

that the statute does not apply to a trust not created in the deed itself but by an independent

instrument); cf. Woolfitt, 175 N.W. at 288. Here, neither the mortgage assignment nor the sheriff’s

deed created a passive trust. Rather, the assignment was conveyed to BNYM as trustee for the

already existing CWALT Trust, with relationships and duties set forth in the trust’s pooling and

servicing agreement.

        Carmack argues that even if § 555.5 applies only to a passive trust created by the deed itself,

the mortgage assignment and the deed in this case created a new trust in favor of the certificate

holders because BNYM “took the mortgage and then the subject property by [s]heriff’s [d]eed as

trustee for the certificate holders of the Trust and not in its capacity as trustee for the Trust itself.”

This allegation, however, contradicts Carmack’s complaint (alleging that MERS assigned the

mortgage to BNYM “as trustee for the trust”) and was not raised below. Moreover, even if we were

to overlook Carmack’s failure to raise this allegation below, and even if § 555.5 applies to the

mortgage assignment or sheriff’s deed, the CWALT Trust is not passive. First, the trust’s pooling

and servicing agreement established BNYM as trustee of the CWALT Trust. Second, BNYM, as

the trustee, is obliged under the terms of the trust’s agreement to, among other duties, ensure that the

                                                   11
No. 12-1953
Carmack v. The Bank of New York Mellon, et al.

public records for the mortgage assignments are in proper form, retain possession and custody of

each mortgage file, maintain a distribution account, and make periodic distributions to the certificate

holders. Thus, the CWALT Trust is more properly classified as a permissible active trust. See Hunt

v. Hunt, 83 N.W. 371, 372 73 (Mich. 1900) (holding that a trust is an “active trust” where the trustee

is obligated to collect income from lands and pay the proceeds to the beneficiaries); cf. Rishoi v.

Deutsche Bank Nat’l Trust Co., No. 12-12957, 2013 WL 142258, at *4 (E.D. Mich. Jan. 11, 2013).

2.     MERS’s power to assign the mortgage to BNYM

       Carmack claims that MERS lacked the authority to assign the mortgage to BNYM because

it was never given authority to act as the “nominee” by the “current principal,” i.e., the CWALT

Trust. However, the mortgage terms belie this assertion, as the mortgage agreement conveyed to

MERS (as nominee for Lender and Lender’s successors and assigns), and to MERS’s successors and

assigns, the “power of sale” with respect to the property for the purpose of securing the loan’s

repayment, and the “right . . . to exercise any or all of those interests” conveyed by Carmack to

Lender and its successors and assigns, including, but not limited to, the right to foreclose and sell

the property. Thus, the agreement recognized that MERS had the power to assign the security

interest and the power to foreclose. The Michigan Court of Appeals explained:

       Because plaintiff granted defendant MERS the power to assign the mortgage, the
       assignment of the mortgage to defendant Bank of New York Mellon was valid.
       Furthermore, because the mortgage specifically granted defendant MERS the power
       to foreclose on and sell the property as nominee for the lender, defendant Bank of
       New York Mellon, as assignee of the mortgage, also had the power to foreclose on
       and sell the property.




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No. 12-1953
Carmack v. The Bank of New York Mellon, et al.

Bakri v. Mortg. Elec. Registration Sys., No. 297962, 2011 WL 3476818, at *4 (Mich. Ct. App. Aug.

9, 2011), abrogated on other grounds by Residential Funding Co. v. Saurman, 805 N.W.2d 183

(Mich. 2011).

           Although MERS did not own the note, the category of parties with an “interest in the

indebtedness” under § 600.3204(1)(d) “include[s] mortgagees of record among the parties entitled

to foreclose by advertisement[.]” Saurman, 805 N.W.2d at 184. MERS, as the mortgagee of record,

had an interest in the indebtedness     “i.e., the ownership of legal title to a security lien whose

existence is wholly contingent on the satisfaction of the indebtedness” thus authorizing MERS to

foreclose by advertisement. Id. at 183; see Veal v. OneWest Bank, No. 12-15695, 2013 WL

1747911, at *5 (E.D. Mich. Apr. 23, 2013) (explaining that Saurman “made clear that under

Michigan law a mortgage granted to MERS as nominee for lender and lender’s successors and

assigns is a valid and assignable mortgage”); Richard v. Schneiderman & Sherman, PC, 824 N.W.2d

573, 574 (Mich. Ct. App. 2012) (“Saurman requires a holding that MERS was authorized to

foreclose by advertisement [as the mortgagee of record].”). As a result, upon assigning its security

interest to BNYM, MERS validly assigned to BNYM the authority to foreclose by advertisement as

the mortgagee of record.6

                                                 III.

       For the foregoing reasons, we AFFIRM the district court’s judgment.

       6
         Our decision addressing the merits of Carmack’s claims should not be construed to mean
that any purported defect in a mortgage assignment rises to the level of fraud or irregularity required
to set aside a foreclosure sale after the redemption period has expired. Rather, because Carmack’s
underlying claims lack merit, there can be no question that he has failed to meet the high standard
imposed by Michigan law for this lawsuit.
                                                  13
