                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a0337n.06

                                            No. 10-2012
                                                                                           FILED
                           UNITED STATES COURT OF APPEALS
                                                                                      Mar 28, 2012
                                FOR THE SIXTH CIRCUIT
                                                                               LEONARD GREEN, Clerk

RETAINED REALTY, INC.,                                    )
                                                          )
       Plaintiff-Appellant,                               )       ON APPEAL FROM THE
                                                          )       UNITED STATES DISTRICT
                 v.                                       )       COURT FOR THE EASTERN
                                                          )       DISTRICT OF MICHIGAN
MICHIGAN PIONEER TITLE INS. CORP., et al.,                )
                                                          )
       Defendants-Appellees.                              )
                                                          )



BEFORE: SILER, ROGERS, and WHITE, Circuit Judges.

       ROGERS, Circuit Judge. Retained Realty, Inc. (the successor in interest to Emigrant

Mortgage Co.) appeals the district court’s grant of summary judgment to the defendant Ticor Title

Insurance Corporation. This case arose when a closing agent failed to properly record a mortgage

during the purchase of residential property. As recorded, the mortgage only encumbered part of the

property. Emigrant,1 the lender, first discovered a potential problem with the mortgage’s recording

during its post-closing audit and before the mortgagors defaulted. In response, Emigrant mailed a

letter to the closing agent asking it to re-record the mortgage. The closing agent failed to respond

or remedy the problem. By the time the property owners defaulted, they no longer retained the

unencumbered portion of the property. As a result, Emigrant suffered a loss when it foreclosed on




       1
           Retained Realty and Emigrant are referred to here as “Emigrant.”
No. 10-2012
Retained Realty, Inc. v. Michigan Pioneer Title Ins. Corp.


the property. Emigrant then sued the closing agent and Ticor, the title insurance provider, to recover

for its losses.

        The district court concluded that Emigrant’s failure to take any action to mitigate its losses

beyond sending a letter was unreasonable as a matter of law and precluded recovery. This was

improper because the reasonableness of Emigrant’s mitigation efforts presented a question for the

factfinder.

        In 2002, Emigrant Mortgage Co., an out-of-state lender, extended a $700,000.00 mortgage

loan to Maher and Cindy Jabero. This loan was secured by a mortgage on the Jaberos’ property at

22126 Beck Road, Northville, Michigan. The property consisted of four contiguous parcels (Parcels

23, 24, 25, and 26), with the Jaberos’ home situated on Parcel 24. Parcels 23, 25, and 26 remained

unimproved. Even though the security instruments accompanying the mortgage only covered Parcel

24, the mortgage nevertheless incorporated several riders. Among those, Rider E states that a

“Blanket Mortgage/Lien” will be placed on all four parcels.

        Prior to the closing, Emigrant obtained a title commitment for the issuance of a title insurance

policy on the Jaberos’ property through Ticor Title Insurance Co., d/b/a American Pioneer Title

Insurance Co. (Ticor). This title commitment mentioned only Parcel 24. On February 28, 2002,

Ticor provided Emigrant with a “Closing Service Letter” on the property in which Ticor agreed to

reimburse Emigrant for actual losses incurred in connection with the closing on the Jaberos’

property, including losses incurred if the title closing agent, Michigan Pioneer Title Co. (MPTC),

failed to follow Emigrant’s closing instructions. This letter read:


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Retained Realty, Inc. v. Michigan Pioneer Title Ins. Corp.


        When title insurance of [Ticor Title Insurance Co.] is specified for your protection
        in connection with closings of real estate transactions in which you are to be . . . a
        lender secured by a mortgage (including any other security instrument) of an interest
        in land, [Ticor Title Insurance Co.], subject to the Conditions and Exclusions set
        forth below, hereby agrees to reimburse you for actual loss incurred by you in
        connection with such closings when conducted by said Issuing Agent or Approved
        Attorney when such loss arises out of:

        1. Failure of said Issuing Agent or Approved Attorney to comply with your written
        closing instructions to the extent that they relate to (a) the status of the title to said
        interest in land or the validity, enforceability and priority of the lien of said mortgage
        on said interest in land, including the obtaining of documents and the disbursement
        of funds necessary to establish such status of title or lien . . . .

        At the time of the closing, Emigrant gave written closing instructions to MPTC directing it

to ensure that Emigrant, as the lender, had “a valid, enforceable first priority lien encumbering the

Property.”2 The instructions also directed MPTC to attach the legal description of the property and

all riders—including Rider E—to the mortgage before recording it. MPTC, however, failed to

follow these instructions and neglected to record Rider E when it recorded the mortgage on May 13,

2002.

        MPTC’s error did not go unnoticed by Emigrant. In conducting a post-closing audit,

Emigrant discovered that Rider E had not been attached to the recorded mortgage. On July 9, 2002,

Emigrant sent MPTC a letter by regular mail informing it of the omission and directing it to re-

record the mortgage with Rider E attached. MPTC did not respond to the letter, nor did it re-record

the mortgage.



        2
        MPTC was originally named as a defendant but later deemed to be a non-viable entity and
dismissed without prejudice by the district court.

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Retained Realty, Inc. v. Michigan Pioneer Title Ins. Corp.


       In 2004, the Jaberos defaulted on their mortgage and Emigrant commenced foreclosure

proceedings. On July 2, 2004, Emigrant notified its title insurer, Ticor, that it was undertaking

foreclosure proceedings against the Jaberos. Emigrant also informed Ticor that The Bank of

Bloomfield Hills held a prior mortgage on Parcel 24, but Emigrant failed to mention any issues

related to Rider E. The Jaberos soon thereafter cured their default and Emigrant canceled the

foreclosure proceedings on July 26, 2004. A month later on August 27, 2004, the County Treasurer

sold one of the Jaberos’ vacant parcels to a third party at a tax sale. The Jaberos sold the two

remaining vacant parcels on May 19, 2005.

       In 2005, the Jaberos defaulted on their mortgage a second time, and Emigrant again

commenced foreclosure proceedings. Realizing Rider E had not been recorded and that three of the

four parcels no longer belonged to the Jaberos, Emigrant notified Ticor of the situation and

submitted a claim by letter dated June 9, 2005. Emigrant then foreclosed on the only remaining

parcel (Parcel 24) and obtained the property at the foreclosure sale on October 18, 2005, for

$792,355.25. Emigrant sold Parcel 24 on April 25, 2007, and contends it sustained a loss of

$381,097.07.

       Emigrant subsequently filed an action against Ticor for “vicarious liability” for damages

caused by Ticor’s agent, MPTC; it also sued MPTC for breach of contract, breach of fiduciary duty,

and negligence. The district court construed Emigrant’s claim against Ticor as one sounding in

contract even though Emigrant’s complaint contained no such claim. The district court noted that,

were the claim to survive, it would direct Emigrant to amend its complaint. Ticor then moved for


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Retained Realty, Inc. v. Michigan Pioneer Title Ins. Corp.


summary judgment on the ground that Emigrant’s failure to mitigate its damages precluded recovery.

In Ticor’s view, once Emigrant learned that Rider E had not been recorded in 2002, it should have

taken steps beyond simply sending MPTC a letter notifying it of this deficiency. Emigrant countered

that summary judgment was inappropriate because the reasonableness of its mitigation efforts was

a question for a jury. The district court agreed with Ticor and granted summary judgment. Emigrant

timely appealed.

       The reasonableness of Emigrant’s mitigation efforts should not have been decided as a matter

of law. In general, Michigan law treats the reasonableness of a party’s mitigation efforts as a

question of fact for the jury. Pa. Life Ins. Co. v. City of River Rouge, 676 F. Supp. 2d 575, 582 (E.D.

Mich. 2009) (citing Bak v. Citizens Ins. Co. of Am., 503 N.W.2d 94, 99 (Mich. Ct. App. 1993)); Snell

v. UACC Midwest, Inc., 487 N.W.2d 772, 775-76 (Mich. Ct. App. 1992). While “overwhelming

evidence” of a plaintiff’s failure to mitigate will warrant removal of the issue from a jury’s

consideration, Device Trading Ltd. v. Viking Corp., 307 N.W.2d 362, 366 (Mich. Ct. App. 1981),

this is not such a case. The precise line for what was reasonable under the circumstances in this

matter is not clearly defined and is open to question.

       The undisputed facts show that when Emigrant conducted an audit of the closing file after

receiving the recorded mortgage it noticed that Rider E was missing. Emigrant says it did not know

whether the riders had not been returned with the legal package inadvertently, or whether they were

not attached to the mortgage when it was recorded. Emigrant responded by sending MPTC a letter

informing it of the error and directing it to re-record the mortgage. MPTC did not acknowledge


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Retained Realty, Inc. v. Michigan Pioneer Title Ins. Corp.


receipt of the letter, and Emigrant took no further action until the Jaberos defaulted on the mortgage

a second time.

       The only question on appeal is the reasonableness of Emigrant’s mitigation efforts. Michigan

law requires that parties injured in contract and tort actions make “every reasonable effort” to

mitigate their damages. Rasheed v. Chrysler Corp., 517 N.W.2d 19, 30 (Mich. 1994); Williams v.

Am. Title Ins. Co., 269 N.W.2d 481, 486 (Mich. Ct. App. 1978). In practice, this duty calls for a

party to use “such means as are reasonable under the circumstances to avoid or minimize the

damages.” Shiffer v. Bd. of Educ. of Gibraltar Sch. Dist., 224 N.W.2d 255, 258 (Mich. 1974)

(quoting C. McCormick, Law of Damages § 33 at 127 (1935)). Whether Emigrant’s decision to send

a letter without further action was reasonable under the circumstances is debatable and therefore not

resolvable on summary judgment.

       Michigan law does not require Emigrant to have been successful in mitigation; a “claimant’s

burden is not onerous.” Rasheed, 517 N.W.2d at 27 (quoting Rasimas v. Mich. Dep’t of Mental

Health, 714 F.2d 614, 624 (6th Cir. 1983)). “Success” in this matter would have entailed Emigrant’s

contacting MPTC and MPTC’s re-recording the mortgage with Rider E attached. Yet the standard

of care is something less than success, and the dilemma lies in determining how much less Emigrant

could have done and still be found to have acted reasonably. On one end of the spectrum, had

Emigrant taken no steps after learning of the recording deficiency, this case would have been

appropriately decided on summary judgment. On the other end, the reasonableness of Emigrant’s




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Retained Realty, Inc. v. Michigan Pioneer Title Ins. Corp.


mitigation efforts could not be questioned if it had re-recorded the mortgage itself. Emigrant’s

actions fell somewhere between those bookends and to which side it fell remains in question.

       In contrast to this case, Michigan courts have been clear in holding that plaintiffs breached

the duty to mitigate damages when they failed to take any action to minimize their losses. For

example, in Williams v. American Title Insurance Co., the court held that the plaintiff’s total failure

to find a use or market for restaurant equipment after a restaurant’s closing constituted a breach of

the duty to mitigate damages. 269 N.W. 2d at 486 (emphasis added). Farm Credit Services v.

Weldon, 591 N.W.2d 438, 446 (Mich. Ct. App. 1998), is another example where a party’s failure to

act constituted a breach of the duty to mitigate. Farm Credit involved an action between an

agricultural lender and farmer borrowers, where the farmers alleged that the agricultural lender acted

in bad faith when it refused to surrender its collateral to a creditor. This decision, they claimed,

resulted in the creditor’s foreclosing on the farmers’ property. The jury in that case awarded the

farmers damages of $500,000. On appeal, the court considered the farmers’ admission that they had

alternative sources from which to borrow money and pay the creditor; yet they did nothing. Id. This

inaction—the failure to take any action to mitigate damages—precluded recovery.

       In arguing that the reasonableness of Emigrant’s mitigation efforts was properly decided as

a matter of law, Ticor points to Emigrant’s failure to take action in 2004 when the Jaberos first

defaulted on their mortgage. At that time, the Jaberos retained all four parcels. Had Emigrant acted

then to re-record the mortgage, contact MPTC, or notify Ticor, its losses might have been reduced

or avoided. Again, the standard is not one of success. Further, the failure to mitigate is an


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Retained Realty, Inc. v. Michigan Pioneer Title Ins. Corp.


affirmative defense under Michigan law, and the burden of proving the plaintiff has not used every

reasonable effort falls to the defendant. Rasheed, 517 N.W.2d at 27; Froling v. Bischoff, 252

N.W.2d 832, 834 (Mich. Ct. App. 1977). The burden, thus, fell on Ticor to prove that Emigrant’s

sending MPTC a letter by regular mail was unreasonable under the circumstances. But Ticor has

not shown what a party in Emigrant’s position, having learned of a potential recording error, would

be expected to do. Would a follow-up phone call have been sufficient? Would sending the letter

by registered mail have made the difference? Simply put, the standard of care remains in question

and is for the factfinder to decide.

        Finally, Ticor asks the court to affirm the district court’s decision on the alternative ground

that Michigan’s full credit bid rule bars recovery under a closing protection letter.3 Ticor first raised

this argument in its reply brief before the district court; the district court did not address this

argument in its decision. On appeal, Ticor’s treatment of this argument consists of one sentence in

a footnote. Ticor says only that Michigan’s full credit bid rule “extinguishes the mortgage debt and

precludes any recovery under a closing protection letter because there is no actual loss.” Ticor cites

New Freedom Mortg. Corp. v. Globe Mortg. Corp., 761 N.W.2d 832, 839-40 (Mich. Ct. App. 2008),

without mentioning the relevant holding in that case. We decline to construct an argument on

Ticor’s behalf, and accordingly, do not reach this alternative argument.



        3
         Ticor also argues it should prevail because Emigrant cannot establish legal or proximate
cause; Ticor claims Emigrant’s own acts break the chain of causation. Whether Emigrant can
establish causation in its prima facie case for breach of contract is a separate question from whether
Ticor has carried its burden in establishing this affirmative defense.

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Retained Realty, Inc. v. Michigan Pioneer Title Ins. Corp.


       Viewing the evidence in the light most favorable to the nonmoving party, Emigrant, Combs

v. Int’l Ins. Co., 354 F.3d 568, 576–77 (6th Cir. 2004), the reasonableness of Emigrant’s mitigation

efforts presented a question for the factfinder and was not properly decided as a matter of law on

summary judgment. Because this question is one for the factfinder, we need not address Emigrant’s

alternative argument that the failure to mitigate reduces, rather than precludes, recovery.

       For these reasons, we reverse the judgment of the district court and remand the case for

further proceedings consistent with this opinion.




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