                            STATE OF MICHIGAN

                            COURT OF APPEALS



GLORIA SHANDMARTIN, a/k/a GLORIA                                     UNPUBLISHED
SHAND, a/k/a GLORIA MARTIN,                                          December 9, 2014

               Plaintiff-Appellant,

v                                                                    No. 316237
                                                                     Oakland Circuit Court
FIFTH THIRD MORTGAGE-MI, L.L.C., and                                 LC No. 2012-126876-CH
FIFTH THIRD MORTGAGE COMPANY,

               Defendants-Appellees,

and

CITIBANK, N.A.,

               Defendant.


Before: RIORDAN, P.J., and BECKERING and BOONSTRA, JJ.

PER CURIAM.

        In this action to set aside a foreclosure sale, plaintiff appeals as of right from the trial
court’s order granting summary disposition in favor of defendants Fifth Third Mortgage-MI,
L.L.C. and Fifth Third Mortgage Company.1 We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

       In February 2007, plaintiff obtained a mortgage loan from defendant Fifth Third
Mortgage-MI L.L.C. on residential property in Farmington Hills, Michigan. In June 2007, Fifth
Third Mortgage-MI, L.L.C. assigned its mortgage interest to defendant Fifth Third Mortgage
Company. The written assignment was recorded in October 2007. Plaintiff thereafter defaulted
on the mortgage and Fifth Third Mortgage Company commenced proceedings to foreclose on the



1
  Defendant Citibank, N.A. is not a party to this appeal. As used in this opinion, the term
“defendants” shall refer only to Fifth Third Mortgage-MI, L.L.C., and Fifth Third Mortgage
Company.

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property by advertisement. Fifth Third Mortgage Company purchased the property at a sheriff’s
sale on January 10, 2012 after making a “credit bid” in the amount of $199,000.

        In May 2012, plaintiff brought this action to set aside the sheriff’s sale on the ground that
Fifth Third Mortgage Company was not a proper party to commence a foreclosure proceeding.
Defendants moved for summary disposition, arguing that there was no genuine issue of material
fact regarding Fifth Third Mortgage Company’s authority to initiated foreclosure proceedings.
The trial court agreed and granted defendants’ motion. This appeal followed.

                        II. TIMELINESS OF DEFENDANTS’ MOTION

        Plaintiff first argues that the trial court erred in considering defendants’ motion because it
was filed three weeks after the cutoff date for filing dispositive motions as set forth in a
scheduling order. This Court reviews a trial court’s decision whether to entertain a motion filed
after a scheduling deadline for an abuse of discretion. Kemerko Clawson, LLC v RxIV, Inc, 269
Mich App 347, 349; 711 NW2d 801 (2005). A trial court abuses its discretion when it selects an
outcome that falls outside the range of reasonable and principled outcomes. Maldonado v Ford
Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).

        Although MCR 2.116(B)(2) provides that a motion for summary disposition may be filed
at any time, a trial court retains discretion to set limits on the filing of dispositive motions.
Kemerko Clawson, 269 Mich App at 350-351. A trial court also has the inherent power to
control the movement of cases on its docket, Banta v Serban, 370 Mich 367, 368; 121 NW2d
854 (1963), and a court is authorized to issue more than one scheduling order in a case.
MCR 2.401(B)(2)(a). Here, defendants filed their motion for summary disposition after the
original scheduling order’s cutoff date for filing dispositive motions, but the trial court later
issued another scheduling order that permitted defendants’ motion. Further, the court gave
principled reasons for allowing the late motion. Although plaintiff argues that the trial court’s
decision to hear the motion compromised her opportunity for a settlement, there is no indication
in the record that defendants were willing to settle. On the contrary, it was defendants’ position
that there was no genuine issue of material fact regarding their authority to foreclose by
advertisement, and that they were entitled to judgment as a matter of law. If the court had
declined to hear defendants’ summary disposition motion, it would not have prevented
defendants from relying on the same evidence in support of a motion for a directed verdict at
trial. See MCR 2.516. The trial court’s decision to address the merits of defendants’ summary
disposition motion promoted the interests of judicial economy and was not an abuse of
discretion.

                                 III. SUMMARY DISPOSITION

       Plaintiff also challenges the trial court’s grant of summary disposition to defendants.
This Court reviews a trial court’s summary disposition decision de novo. Spiek v Dep't of
Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). Defendants moved for summary disposition
under both MCR 2.116(C)(8) (failure to state a claim on which relief can be granted) and (C)(10)
(no genuine issue of material fact). The trial court did not state under which subrule it granted
the motion, but its consideration of evidence beyond the pleadings indicates that the motion was
granted under MCR 2.116(C)(10). See Cuddington v United Health Servs, Inc, 298 Mich App
264, 270; 826 NW2d 519 (2012). A motion under MCR 2.116(C)(10) tests the factual support
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for a claim. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995). A reviewing
court must consider the pleadings, affidavits, depositions, admissions, and other documentary
evidence submitted by the parties. MCR 2.116(G)(5). Summary disposition should be granted
if, except as to the amount of damages, there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Babula, 212 Mich App at 48. See also Smith v
Globe Life Ins Co, 460 Mich 446, 455-456 n 2; 597 NW2d 28 (1999).

       We find no merit to plaintiff’s argument that Fifth Third Mortgage Company was not the
proper party to foreclosure on plaintiff’s property. At the time of the foreclosure proceeding,
MCL 600.3204(1)(d) provided:

               (1) Subject to subsection (4), a party may foreclose a mortgage by
       advertisement if all of the following circumstances exist:

                                          * * *

               (d) The party foreclosing the mortgage 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.

In addition, MCL 600.3204(3) provided that “[i]f 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 under section 3216 [MCL 600.3216] evidencing the assignment of the mortgage to the party
foreclosing the mortgage.” Thus, a party who is not the original mortgagee must obtain an
assignment of the mortgage and record that assignment before it can bring a foreclosure
proceeding. See Kim v JPMorgan Chase Bank, NA, 493 Mich 98, 106, 113; 825 NW2d 329
(2012).

       In this case, defendants submitted evidence showing that Fifth Third Mortgage-MI,
L.L.C., the original mortgagee, assigned its mortgage interest to Fifth Third Mortgage Company.
Defendants also submitted evidence showing that the assignment was recorded with the Oakland
County Register of Deeds before Fifth Third Mortgage Company initiated foreclosure
proceedings. In addition, defendants submitted an affidavit from a representative of Fifth Third
Mortgage Company, who attested that there had been no other assignments of the mortgage,
including to a trust, and that “Fifth Third Mortgage” was in possession of the original document
signed by plaintiff.2 Despite plaintiff’s belief that the mortgage may have been transferred to
another entity, plaintiff never presented any evidence in support of any other transfer. There was
no evidence that the mortgage had ever been assigned to a party other than Fifth Third Mortgage
Company.




2
  Although defendants initially submitted only an unsigned affidavit, they later submitted a
signed affidavit with their reply to plaintiff’s answer to their motion. Therefore, the trial court
did not err by considering the affidavit.

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        Plaintiff complains that the trial court failed to address her claim that a trust may have
held an interest in the mortgage note. However, plaintiff has not demonstrated that it was
necessary to do so. Even if there was some assignment of an interest in the underlying debt
involving a trust, such assignment would not have affected Fifth Third Mortgage Company’s
right to foreclose, as the record holder of the mortgage. Residential Funding Co, LLC v
Saurman, 490 Mich 909, 909-910; 805 NW2d 183 (2011). Moreover, defendants submitted
evidence showing that the note was endorsed to Fifth Third Mortgage Company, giving it the
right to foreclose. See Citibank, NA v Dalessio, 756 F Supp 2d 1361, 1365 (MD Fla, 2010). In
sum, defendants submitted evidence showing that Fifth Third Mortgage Company held the right
to enforce both the mortgage and the note for the underlying debt, and plaintiff never came
forward with any evidence to support her contention that some other entity held either title to the
mortgage or the right to payment of the debt such that Fifth Third Mortgage Company lacked the
authority to foreclose by advertisement. Accordingly, plaintiff failed to demonstrate a genuine
issue of material fact regarding whether Fifth Third Mortgage Company was the proper party to
commence a foreclosure proceeding.

        For this same reason, there also is no merit to plaintiff’s argument that Fifth Third
Mortgage Company could not offer a “credit bid” on the property at the sheriff’s sale. A “credit
bid” occurs when the lender or creditor makes a bid at a foreclosure sale. The lender for the
property who bids need not pay cash because the cash would simply be returned to it. See New
Freedom Mtg Corp v Globe Mtg Corp, 281 Mich App 63, 68; 761 NW2d 832 (2008). Plaintiff’s
argument is premised on her position that Fifth Third Mortgage Company could not make a
credit bid because it was not owed the debt, but the submitted evidence showed otherwise.

       Finally, there is no merit to plaintiff’s argument that she did not have adequate time for
discovery. The trial court’s scheduling order indicates that discovery was to be completed by
January 7, 2013. Plaintiff has not demonstrated either that the discovery cutoff date in the trial
court’s original scheduling order was inadequate, or that additional discovery was likely to
produce further factual support for her challenge to the foreclosure proceeding. Diem v Sallie
Mae Home Loans, Inc, ___ Mich App ___; ___ NW2d ___ (Docket No. 317499, issued
October 16, 2014), slip op at 5.

       Affirmed.

                                                            /s/ Michael J. Riordan
                                                            /s/ Jane M. Beckering
                                                            /s/ Mark T. Boonstra




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