            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                            STATE OF MICHIGAN

                            COURT OF APPEALS



BANK OF THE WEST,                                                   UNPUBLISHED
                                                                    May 30, 2019
               Plaintiff-Appellant,

v                                                                   No. 342874
                                                                    Jackson Circuit Court
HARDROCK HDD, INC.,                                                 LC No. 16-002969-PD

               Defendant,
and

JEFFERY L. PATRICK and DANNY PATRICK,

               Defendants-Appellees.



Before: SHAPIRO, P.J., and BORRELLO and BECKERING, JJ.

PER CURIAM.

        Plaintiff, Bank of the West, appeals by leave granted1 from a December 12, 2017 order
setting aside a default and default judgment entered against individual defendants Jeffrey Patrick
and Danny Patrick. We reverse and remand for an order reinstating the default and default
judgment.

                      I. BASIC FACTS AND PROCEDURAL HISTORY

      In September 2015, defendant Hardrock HDD, Inc. (Hardrock)2 purchased drilling
equipment with $301,398.75 in financing from plaintiff. Defendants guaranteed Hardrock’s debt


1
 Bank of the West v Hardrock HDD Inc, unpublished order of the Court of Appeals, entered
October 1, 2018 (Docket No. 342874).
2
 Hardrock is not participating in this appeal. Thus, “defendants” will refer only to the individual
defendants, Jeffrey Patrick and Danny Patrick.



                                                -1-
to plaintiff. On October 24, 2016, several months after Hardrock last made a monthly payment
to it, plaintiff filed suit against Hardrock and defendants, alleging that Hardrock had defaulted on
its obligation under the financing agreement and failed to respond to plaintiff’s communications
and requests for compliance. Plaintiff requested possession of the drilling equipment and a
judgment against Hardrock and defendants for $314,729.25, the amount of principal and interest
due and owing. Plaintiff also filed a verified motion for possession of the drilling equipment.
         Subsequently, counsel for Hardrock and defendants negotiated a stipulated order of
possession that allowed defendants time to obtain a better price for the equipment by marketing
and selling it themselves. Defendants were unable to sell the equipment within the agreed-upon
time period, and plaintiff took possession of the drilling equipment on or around January 2, 2017.
Plaintiff then sold the drilling equipment at a Uniform Commercial Code (“UCC”) foreclosure
sale. The net proceeds of the sale were $108,170.15. On April 28, 2017, at the request of
plaintiff, a default was entered against Hardrock and defendants; Hardrock filed for bankruptcy
the same day.

        On May 15, 2017, plaintiff moved for entry of a default judgment against defendants for
$338,207.58 (less any amount of proceeds and payments retained or received), an amount
comprised of principal and interest, attorney fees and costs, and recovery, transportation, storage,
and resale charges. Plaintiff noticed a hearing on its motion for May 23, 2017. Appearing at the
hearing without an attorney, defendants informed the court that an attorney had been
representing them and Hardrock “jointly,” but the attorney was now only representing Hardrock
in its bankruptcy proceedings, and they were attempting to find another attorney to represent
them. Plaintiff agreed to a short adjournment to allow defendants time to find new counsel. The
court agreed with plaintiff that a trial date was unnecessary because defendants had been
defaulted, and told plaintiff to renotice its motion for hearing if necessary after defendants
obtained counsel.

        A second hearing on plaintiff’s motion for entry of a default judgment occurred on July
18, 2017. Still looking for counsel to represent them, defendants explained to the court that they
were “tight on funds” and could not afford an attorney. Defendants also told the court that they
did not believe that plaintiff had exercised due diligence in selling the drilling equipment. They
explained that, although the drilling equipment was in high demand and plaintiff valued it at
more than $300,000, plaintiff had sold the equipment for less than $120,000. Defendants opined
that reasonable commercial practices required that plaintiff attempt to obtain a greater price. The
court ended the hearing by saying: “Gentlemen, I’m going to give you one month to figure
something out. If not, I will enter the default without anybody appearing. If you don’t have an
attorney and an answer in 30 days from today’s date you can just submit the default at that time.”

       On August 15, 2017, an attorney entered an appearance for defendants. It is undisputed
that defendants’ counsel did not file a response to plaintiff’s motion for entry of a default
judgment prior to expiration of the 30-day period the trial court allotted them. On September 28,
2017, plaintiff filed a motion for entry of a default judgment for $230,037.43, an amount that
included a reduction for the proceeds from the sale of the drilling equipment. The following day,
the court entered a default judgment against defendants for the requested amount.

       On October 4, 2017, prior to receiving a copy of the default judgment, defendants filed a
response and brief opposing plaintiff’s motion for entry of a default judgment pursuant to the

                                                -2-
court’s July 18, 2017 ruling. Defendants asserted that they had twice appeared at hearings to
protect their interests against plaintiff’s motion for entry of a default judgment, that they had
taken the court’s “advice” at the second hearing and hired an attorney, and that their attorney had
filed an appearance. Defendants argued that plaintiff’s request for entry of a default judgment
without a hearing was inappropriate because it sought to bypass the protections afforded them by
Michigan’s court rules. They clarified that they were not seeking to have the default set aside;
they just “vehemently oppose” plaintiff’s damage calculation. Specifically, they argued that
plaintiff had not followed the provisions in the UCC, MCL 440.1101 et seq., that require a
secured party to sell collateral in a manner that is “commercially reasonable.”

        On October 20, 2017, defendants moved to set aside default judgment, raising essentially
the same arguments they had set forth in their October 4, 2017 brief opposing plaintiff’s motion
for entry of the judgment. They cited the procedural history of the case as good cause or a
“reasonable excuse” for setting aside the default history and, regarding a meritorious defense,
they asserted that plaintiff failed to sell the drilling equipment in a commercially reasonable
manner, as required by the UCC. Consequently, their liability was limited to the difference
between the sum of the secured obligation and the amount of proceeds that plaintiff would have
realized had it proceeded in accordance with the provisions of the UCC.

         In opposition to defendants’ motion, plaintiff argued that defendants had ample notice
that the trial court would enter a default judgment if they failed to defend, and thus, they could
not establish good cause to set aside the judgment. Plaintiff also argued that the affidavit
defendants filed asserting a meritorious defense contained neither facts nor substance sufficient
to set forth such a defense.

        Subsequent to a hearing at which the parties argued consistently with their briefs, the trial
court stated, without providing any explanation, that it would set aside the default and the default
judgment. The court entered a corresponding order on December 12, 2017. Plaintiff filed a
motion for reconsideration, which the trial court denied. Thereafter, plaintiff filed an application
for leave to appeal in this Court, which the Court granted.

                                  II. STANDARD OF REVIEW

       This Court reviews a trial court’s decision to set aside a default or a default judgment for
an abuse of discretion. Amco Builders & Developers, Inc v Team Ace Joint Venture, 469 Mich
90, 94; 666 NW2d 623 (2003). “An abuse of discretion occurs if the trial court’s decision falls
outside the range of principled outcomes.” Macomb Co Dep’t of Human Services v Anderson,
304 Mich App 750, 754; 849 NW2d 408 (2014).

                                        III. DISCUSSION

       Plaintiff contends that the trial court erred in setting aside the default judgment it
previously entered against defendants. We agree.




                                                -3-
        MCR 2.603 sets forth the procedures relative to obtaining and setting aside defaults and
default judgments. To set aside a default or a default judgment, a party must demonstrate good
cause and file an affidavit showing a meritorious defense. MCR 2.603(D)(1)3; See Alken-
Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 233; 600 NW2d 638 (1999). Whether a
party has shown good cause and a meritorious defense are separate and distinct inquiries;
nevertheless, the strength of the meritorious defense will affect the “good cause” showing that is
necessary. Id. at 233-234. “[I]f a party states a meritorious defense that would be absolute if
proven, a lesser showing of ‘good cause’ will be required than if the defense were weaker, in
order to prevent manifest injustice.” Id.

        To show “good cause,” a party must establish a substantial defect or irregularity in the
proceeding upon which the default was based or a reasonable excuse for failure to comply with
the requirements, which created the default. Amco Builders & Developers, Inc, 469 Mich at 95;
Alken-Ziegler, Inc, 461 Mich at 233.4 To constitute good cause, the substantial defect or
irregularity must have prejudiced the defendant. See Alycekay Co v Hasko Constr Co, 180 Mich
App 502, 506-507; 448 NW2d 43 (1989).

        Defendants argue that the court’s failure to enter a written order after the July 18, 2017
hearing, specifying that defendants had 30 days to engage an attorney and to file a response to
plaintiff’s motion for entry of a default judgment, resulted in a lack of clarity. According to
defendants, this constituted a procedural irregularity that prejudiced defendants and sufficed to
establish good cause to set aside the default judgment.

        “The rule is well established that courts speak through their judgments and decrees, not
their oral statements or written opinions.” Tiedman v Tiedman, 400 Mich 571, 576; 255 NW2d
632 (1977). “However, there are circumstances in which an oral ruling has the same force and
effect as a written order, as when, for example, an oral ruling clearly communicates the finality
of the court’s pronouncements.” Arbor Farms, LLC v GeoStar Corp, 305 Mich App 374, 388;
853 NW2d 421 (2014)(quotation marks and citation omitted). “When assessing whether an oral
ruling has equal effect to that of a written order, [this Court] consider[s] whether the oral ruling
contains indicia of formality and finality comparable to that of a written order.” Id. In Arbor
Farms, LLC, this Court found that the trial court’s unequivocal assertion that “ ‘this is the ruling
of the Court[,]’ ” its statement that it was modifying a prior order, and its specific instructions to
the defendant to take certain actions within 30 days “reflect[ed] a formal resolution, not a
tentative conclusion of merely loose impressions of the matter.” Id.



3
 Amendments to MCR 2.603(D)(1) took effect May 1, 2019. The amended rule now allows a
party to submit a “statement of fact showing a meritorious defense, verified in the manner
prescribed by MCR 1.109(D)(3).” The 2019 amendments did not change MCR 1.109(D)(3),
which governs verification. The issues on appeal arose and were decided prior to the effective
date of the amendments.
4
 In Alken-Zeigler, 461 Mich at 233, the Supreme Court clarified that “manifest injustice” is not a
separate occurrence, such as a procedural defect, that allows a party to establish good cause.


                                                 -4-
        The trial court in the case at bar, with plaintiff’s consent, had already given defendants
ample time to find another attorney, and yet they still had not done so as of the July 18, 2017
hearing. At that hearing, the court expressly told defendants they had “one month to figure
something out” and that, if defendants did not have an attorney and file an answer to the motion
for entry of a default judgment within 30 days, plaintiff could submit a default judgment, which
the court would sign without anybody appearing. Put simply there would be no more hearings.
This order was unambiguous and specific, and the consequences for defendant’s failure to
comply were explicit. Although the court did not preface its statement by asserting, “this is the
ruling of the Court,” its statement nonetheless communicated finality of the court’s
pronouncement regarding what defendants had to do to avoid entry of a default judgment, and
the time within which they had to do it.5 Id. The trial court’s statement was not “a tentative
conclusion or merely loose impressions of the matter.” Id. The lack of a written order does not
render the trial court’s pronouncement at the July 18, 2017 hearing any less clear or final.

        Defendants did not comply with the court’s order; although they hired an attorney within
the 30-day period, the attorney did not file a response to plaintiff’s motion for entry of the default
judgment. Six weeks later, plaintiff filed its motion for entry of a default judgment in
accordance with the court’s order, and the court entered the default judgment the following day,
in accordance with its order from the July 18, 2017 hearing. The circumstances surrounding the
trial court’s entry of the default judgment do not reflect a substantial defect or irregularity in the
proceedings upon which the default judgment was based or a reasonable excuse for failure to
comply with the requirements that created the default judgment. See Amco Builders &
Developers, Inc, 469 Mich at 95.

        Even if this Court assumes for the sake of argument that defendants have shown good
cause, it is clear that they have not established the second requirement for setting aside a default
judgment; namely, a meritorious defense.6 MCR 2.603(D)(1); Alken-Ziegler, Inc, 461 Mich at



5
   Defendants’ persistent characterization of the order as “advice” or a “recommendation” is
disingenuous given that defendants needed and wanted counsel, and plaintiff had agreed to a
short adjournment at the May 23 2017 hearing to allow defendants more time to obtain counsel.
Under these circumstances, the court’s order is not “advice” or a “recommendation,” but an
exercise of its inherent authority to manage its docket. See Maldonado v Ford Motor Co, 476
Mich 372, 376; 719 NW2d 809 (2006) (recognizing a trial court’s inherent authority to manage
its “own affairs so as to achieve the orderly and expeditious disposition of cases”).
6
  Plaintiff relies on Huntington Nat’l Bank v Ristich, 292 Mich App 376, 393; 808 NW2d 511
(2011), to argue that “merely contesting the amount of liability does not establish a meritorious
defense.” That is true when it comes to seeking to set aside a default, as was the case in
Huntington. It is less clear that this proposition of law equally pertains to a motion to set aside a
default judgment based on the defaulted party’s objection to the manner in which damages were
calculated. However, where a party does contest the amount of liability, it must set forth facts
sufficient to establish a defense; it cannot “merely” assert that the damages are too much. In the
present case, defendants did not provide an affidavit setting forth facts indicating that plaintiff


                                                 -5-
233-234. In determining whether there is a meritorious defense, a trial court should consider
whether the defendant’s affidavit contains evidence that:

       (1) the plaintiff cannot prove or defendant can disprove an element of the claim or
       a statutory requirement;

       (2) a ground for summary disposition exists under MCR 2.116(C)(2), (3), (5), (6),
       (7) or (8); or

       (3) the plaintiff’s claim rests on evidence that is inadmissible. [Shawl v Spence
       Bros, Inc, 280 Mich App 213, 238; 760 NW2d 674 (2008).]

       Presumably, because defendants argue that plaintiff did not dispose of the equipment in a
commercially reasonable manner, their affidavit should contain evidence indicating that plaintiff
cannot prove, or that defendant can disprove, that plaintiff’s sale of the equipment was not
commercially reasonable under the UCC. Id. Defendants have failed to make that showing.

        Under the UCC, a secured creditor must dispose of collateral in a commercially
reasonable manner, MCL 440.9610(1). “A disposition of collateral is made in a commercially
reasonable manner if the disposition is made in the usual manner on any recognized market, at
the price current in any recognized market at the time of the disposition, or otherwise in
conformity with reasonable commercial practices among dealers in the type of property that was
the subject of the disposition.” MCL 440.9627(2). “The fact that a greater amount could have
been obtained by a disposition at a different time or in a different manner from that selected by
the secured party is not of itself sufficient to preclude the secured party from establishing that the
disposition was made in a commercially reasonable manner.” MCL 440.9627(1). If a secured
party fails to prove that the disposition was conducted in accordance with the provisions of the
UCC, the liability of the debtor for a deficiency is limited to an amount “by which the sum of the
secured obligation, expenses, and attorney fees exceed the . . . amount of proceeds that would
have been realized had the noncomplying secured party proceeded in accordance with the
provisions” of the UCC. MCL 440.9626(c)(ii).

         Defendants identified the drilling equipment that Hardrock purchased as a “status
bursting unit” (SBU), and asserted that plaintiff sold the SBU for much less than its recognized
market value at the time of the sale. The affidavit contained averments that SBUs are in high
demand but are low in supply, that Hardrock purchased the SBU for approximately $360,000,
and that Hammerhead, the company that manufactured the SBU and then purchased it from
plaintiff, sold it to a third party for approximately $120,000. However, the fact that a greater
amount might have been obtained for the drilling equipment, alone, is not sufficient to prove that
plaintiff disposed of the equipment in a commercially unreasonable manner. See MCL
440.9627(1). The affidavit is void of any facts that would indicate the market value of the SBU
at the time of the sale. Accordingly, the affidavit fails to set forth facts showing that the price at


disposed of the drilling equipment in a commercially unreasonable manner; therefore, they did
not establish a meritorious defense for setting aside the default judgment.


                                                 -6-
which plaintiff sold the SBU in March 2017 was not “the price current in any recognized market
at the time of the disposition.” MCL 440.9627(2).

        Defendants also asserted that plaintiff did not sell the SBU in conformity with reasonable
commercial practices among dealers in the industry and that plaintiff disposed of the SBU in a
commercially unreasonable manner.           The affidavit contained averments regarding the
relationship between plaintiff and Hammerhead. However, the affidavit is void of any facts
regarding the specific procedures that plaintiff used to sell the SBU, as well as facts concerning
the typical manner and practices of selling drilling equipment. Defendants allege that plaintiff
did not sell the equipment in a commercially reasonable manner, but fail to provide any evidence
of what entails a commercially reasonable manner or of how plaintiff’s procedure differed
therefrom. 7 Accordingly, the affidavit also fails to set forth facts that establish that plaintiff did
not sell the SBU “in the usual manner on any recognized market . . . or otherwise in conformity
with reasonable commercial practices among dealers in the type of property that was the subject
of the disposition.” MCL 440.9627(2).

        Based on the foregoing, this Court concludes that the trial court abused its discretion in
setting aside the September 2017 default judgment. Defendants did not demonstrate good cause,
and even if had the Court properly concluded otherwise, they did not file an affidavit showing a
meritorious defense. See Amco Builders & Developers, Inc, 469 Mich at 94. Defendants had to
satisfy both of these requirements in order to be entitled to a set aside of the default judgment.
MCR 2.603(D)(1) (“A motion to set aside . . . a default judgment . . . shall be granted only if
good cause is shown and an affidavit of facts showing a meritorious defense is filed”). They did
not; therefore, they were not entitled to have the default judgment entered against them set aside.

       Plaintiff next argues that the trial court abused its discretion by setting aside the default
entered against defendants. Again, we agree.

        “If a party against whom a judgment for affirmative relief is sought has failed to plead or
otherwise defend . . . and that fact is made to appear by affidavit, the clerk must enter the default
of that party.” MCR 2.603(A)(1). “Once the default of a party has been entered, that party may
not proceed with the action until the default has been set aside . . . .” MCR 2.603(A)(3). As
already indicated, to set aside a default, a party must demonstrate good cause and file an affidavit
showing a meritorious defense. MCR 2.603(D)(1); Alken-Ziegler, Inc, 461 Mich at 233.




7
   We note that in the stipulated order of possession, entered November 29, 2016, plaintiff agreed
not to exercise its right of possession for a period of at least 21 days, and that if within the 21
days of the entry of the order Hardrock made one payment to plaintiff in the amount of
$5,722.35, the “Marketing Period” would be extended for one additional 21-day period, making
it a 42-day period. In other words, plaintiff gave Hardrock and defendants time to sell the
equipment themselves before further pursuing possession and sale, and defendants were unable
to do so.


                                                 -7-
        Defendants clearly stated in their motion to set aside the default judgment that they were
not seeking to have the default set aside. They have not denied plaintiff’s right to repossess the
drilling equipment or their liability under the terms of the financing agreement. They did not
argue that there was a substantial defect or irregularity in the proceeding upon which the April
2017 default was based or a reasonable excuse for failure to comply with the requirements that
created the April 2017 default. Amco Builders & Developers, Inc, 469 Mich at 95. Their entire
argument regarding good cause concerned events that occurred after entry of the April 2017
default. Those events included defendants’ appearance at the hearings on May 23, 2017, and
July 18, 2017; the trial court’s failure to enter an order after the July 18, 2017 hearing; and
defendants’ retention of counsel in August 2017. As these events occurred after entry of the
default, they do not provide good cause for setting aside the default. Because defendants failed
to show good cause, the trial court erred in setting aside the default. MCR 2.603(D)(1); Alken-
Ziegler, Inc, 461 Mich at 233. We need not consider whether defendants established a
meritorious defense. See Zaiter v Riverfront Complex, Ltd, 463 Mich 544, 553 n 9; 620 NW2d
646 (2001) (stating, “[t]here being no good cause in this case, we do not reach the question of
meritorious defense”).

        For the foregoing reasons, we reverse the trial court’s December 12, 2017 order and
remand for entry of an order reinstating the default and the default judgment. We do not retain
jurisdiction.



                                                            /s/ Douglas B. Shapiro
                                                            /s/ Stephen L. Borrello
                                                            /s/ Jane M. Beckering




                                               -8-
