                          STATE OF MICHIGAN

                            COURT OF APPEALS



SAMUEL L. HILL, JR.,                                                 UNPUBLISHED
                                                                     March 12, 2015
               Plaintiff-Appellant,

v                                                                    No. 319502
                                                                     Macomb Circuit Court
US BANK, N.A.,                                                       LC No. 2013-002047-CH

               Defendant-Appellee.


Before: GLEICHER, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

        Plaintiff, proceeding in propria persona, brought this action against defendant in May
2013, seeking judicial intervention in connection with a foreclosure sale of property in 2011.
Defendant moved for summary disposition under MCR 2.116(C)(8) and (10) on the ground that
plaintiff did not have a legally cognizable claim. The trial court granted defendant’s motion.
Plaintiff appeals as of right and we affirm.

        At issue in this appeal is defendant’s authority to foreclose plaintiff’s property by
advertisement pursuant to MCL 600.3201 et seq., after plaintiff defaulted on loan payments
secured by a mortgage on the property. Plaintiff defaulted on the loan payments shortly after
entering into a loan modification agreement in 2009. A June 7, 2011 affidavit submitted by an
employee of defendant’s designated agent, Schneiderman & Sherman, P.C., averred that the
foreclosure procedure complied with MCL 600.3204 through MCL 600.3205e. On June 9, 2011,
defendant purchased the property at a sheriff’s sale. Plaintiff failed to redeem the property by
December 9, 2011. After defendant sought to take possession of the property in 2013, plaintiff
filed this action. The trial court granted defendant’s motion for summary disposition, and
plaintiff appeals.

        Plaintiff argues that defendant lacked the authority to foreclose on the property because it
violated MCL 600.3204(d) and MCL 600.3205c(5). We disagree.

       Issues of statutory interpretation are reviewed de novo. Grange Ins Co v Lawrence, 494
Mich 475, 490; 835 NW2d 363 (2013). We also review de novo a trial court’s decision on a
motion for summary disposition. Id. at 489. Defendant moved for summary disposition under
both MCR 2.116(C)(8) and (10). Although the trial court did not identify the subrule under
which it decided the motion, because defendant relied on evidence outside the pleadings in
support of its request for summary disposition, and the trial court relied on that evidence in
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granting defendant’s motion, the motion is appropriately considered under MCR 2.116(C)(10).
Steward v Panek, 251 Mich App 546, 554; 652 NW2d 232 (2002). A motion under MCR
2.116(C)(10) tests the factual sufficiency of a claim. AFP Specialists, Inc v Vereyken, 303 Mich
App 497, 503; 844 NW2d 470 (2014). The substantively admissible evidence submitted by the
parties is considered in a light most favorable to the nonmoving party. Id. at 503-504. “Where
the submitted evidence fails to establish a genuine issue regarding any material fact and the
undisputed facts establish that the moving party is entitled to judgment as a matter of law,
summary disposition is properly granted.” Id. at 504.

        While the gravamen of plaintiff’s complaint is that the foreclosure was illegal, we agree
with defendant that plaintiff failed to present to the trial court his arguments concerning MCL
600.3204(4)(d) and MCL 600.3205(c)(5). “Generally, an issue is not properly preserved if it is
not raised before, and addressed and decided by, the trial court.” Hines v Volkswagen of
America, Inc, 265 Mich App 432, 443; 695 NW2d 84 (2005). But this Court may overlook
preservations to consider a question of law for which the necessary facts have been presented.
Steward, 251 Mich App at 554. Therefore, we will consider plaintiff’s arguments to the extent
that the submitted evidence permits review. However, we decline to consider evidence
submitted with plaintiff’s brief on appeal that was not submitted to the trial court. It was
incumbent on plaintiff to set forth specific facts showing a genuine issue of material fact at the
time of the motion of summary disposition. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d
817 (1999). Enlargement of the record on appeal is not permitted. Amorello v Monsanto Corp,
186 Mich App 324, 330; 463 NW2d 487 (1990). Moreover, this Court previously denied
plaintiff’s motions to expand the record and to remand in order to supplement the record with
additional evidence. See Hill v US Bank, NA, unpublished order of the Court of Appeals, entered
July 10, 2014 (Docket No. 319502), and Hill v US Bank, NA, unpublished order of the Court of
Appeals, entered August 21, 2014 (Docket No. 319502). Accordingly, our review is limited to
the record established in the trial court.

      With respect to plaintiff’s claim predicated on former MCL 600.3204(4)(d),1 we note that
MCL 600.3204(4) only established requirements for commencing proceedings to foreclose a
mortgage on property described in MCL 600.3205a(1). MCL 600.3205a provided, in relevant
part:

               (1) Subject to subsection (6), before proceeding with a sale under this
       chapter of property claimed as a principal residence exempt from tax under
       section 7cc of the general property tax act, 1893 PA 206, MCL 211.7cc, the
       foreclosing party shall serve a written notice on the borrower that contains all of
       the following information:

              (a) The reasons that the mortgage loan is in default and the amount that is
       due and owing under the mortgage loan.



1
  We consider the versions of the statutes in effect at the time of the June 9, 2011 foreclosure
sale.


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             (b) The names, addresses, and telephone numbers of the mortgage holder,
       the mortgage servicer, or any agent designated by the mortgage holder or
       mortgage servicer.

              (c) A designation of 1 of the persons named in subdivision (b) as the
       person to contact and that has the authority to make agreements under sections
       3205b and 3205c.

                                              ***

              (6) If the borrower and the person designated under subsection (1)(c) have
       previously agreed to modify the mortgage loan under section 3205b, this section
       and sections 3205b and 3205c do not apply unless the borrower has complied
       with the terms of the mortgage loan, as modified, for 1 year after the date of the
       modification.

        Under MCL 211.7cc, the property must be owned and occupied by the property owner as
a principal residence to qualify for exemption. Further, the owner must file an affidavit to claim
the exemption. There is no factual basis in the record for treating plaintiff’s property as tax
exempt under MCL 211.7cc and, thus, to subject the property to the requirements of former
MCL 600.3204(4). Moreover, even if the requirements in former MCL 600.3204(4) were
applicable, subsection (d) only precluded commencement of foreclosure proceedings if

       [t]he mortgagor has requested a meeting under section 3205b with the person
       designated under section 3205a(1)(c), the mortgagor has provided documents if
       requested under section 3205b(2), and the person designated under section
       3205a(1)(c) has not met or negotiated with the mortgagor under this chapter.

       MCL 600.3205b provided, in relevant part:

               (1) A borrower who wishes to participate in negotiations to attempt to
       work out a modification of a mortgage loan shall contact a housing counselor
       from the list provided under section 3205a within 14 days after the list is mailed
       to the borrower. Within 10 days after being contacted by a borrower, a housing
       counselor shall inform the person designated under section 3205a(1)(c) in writing
       of the borrower’s request.

               (2) After being informed of a borrower’s request to meet under this
       section, the person designated under section 3205a(1)(c) may request the
       borrower to provide any documents that are necessary to determine whether the
       borrower is eligible for a modification under section 3205c. The borrower shall
       give the person designated under section 3205a(1)(c) copies of any documents
       requested under this section.

       Here, the evidence established that Schneiderman & Sherman was defendant’s designated
agent for purposes of conducting negotiations, and plaintiff was so advised in a June 14, 2010
notice of his right to request mediation. Further, the affidavit of Schneiderman & Sherman’s
employee, dated June 7, 2011, averred that

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       [b]orrower(s) has (have) not contacted the Designee within fourteen (14) days nor
       has a housing counselor informed Mortgagee that the borrower(s) requested a
       meeting to negotiate a mortgage modification within twenty-four (24) days, after
       June 14, 2010, the date Mortgagee served the written notice required by Section
       3205a and (2).

Plaintiff failed to offer any contrary evidence. Thus, we find no factual support for plaintiff’s
newly raised claim on appeal that MCL 600.3204(4)(d) was violated. Alternatively, plaintiff is
not entitled to relief because a statutory defect in a foreclosure proceeding is not grounds for
setting aside a foreclosure sale unless the plaintiff establishes prejudice, which plaintiff has failed
to do. See Kim v JPMorgan Chase Bank, NA, 493 Mich 98, 115; 825 NW2d 329 (2012).

        We also reject plaintiff’s claim that former MCL 600.3205c(5) was violated. There is
some record evidence that defendant’s default resolution department reviewed whether plaintiff
would qualify for a loan modification between the time of the June 14, 2010 letter explaining
plaintiff’s right to request mediation with Schneiderman & Sherman and the June 9, 2011
foreclosure sale. However, former MCL 600.3205c(1) provided that “[i]f a borrower has
contacted a housing counselor under section 3205b but the process has not resulted in an
agreement to modify the mortgage loan, the person designated under section 3205a(1)(c) shall
work with the borrower to determine whether the borrower qualifies for a loan modification. . . .
.” Under former MCL 600.3205c(5), the person designated under section 3205a(1)(c) was also
required to provide the borrower with “[a] copy of any calculations made by the person under
this section” and certain other information, if requested by a borrower.

        Schneiderman & Sherman was defendant’s designated agent. But plaintiff has failed to
establish that the prerequisite in subsection (1) was satisfied. This is fatal to plaintiff’s claim that
MCL 600.3205(5) was violated. Furthermore, even assuming that plaintiff could establish a
violation of MCL 600.3205(5), the remedy for the violation would have been for plaintiff to file
an action in circuit court to convert the foreclosure proceeding to a judicial foreclosure. MCL
600.3205c(8). The foreclosure sale in this case has already taken place. We reject plaintiff’s
claim that a violation of MCL 600.3205c would entitle him to have the foreclosure sale set aside.
Indeed, considering that the six-month redemption period ended in December 2011, plaintiff no
longer has standing to bring a cause of action related to the property. See Bryan v JPMorgan
Chase Bank, 304 Mich App 708, 713-714; 848 NW2d 482 (2014).

        Accordingly, we affirm the trial court’s order granting defendant’s motion for summary
disposition.

       Affirmed.

                                                               /s/ Elizabeth L. Gleicher
                                                               /s/ Mark J. Cavanagh
                                                               /s/ Karen M. Fort Hood




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