Opinion
SC 166147 COA 363746
05-29-2024
GREAT LAKES PROPERTY MANAGEMENT CONSULTANTS, INC., Plaintiff-Appellant, v. HP FORECLOSURE SOLUTION, LLC, Defendant-Appellee.
Wayne CC: 22-006926-CB
Elizabeth T. Clement, Chief Justice, Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden, Justices.
ORDER
On order of the Court, the application for leave to appeal the August 10, 2023 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Viviano, J. (concurring).
I concur in the majority's decision to deny leave but write to highlight an issue that the parties did not raise: whether this Court's decision in Lilly v Gibbs, 39 Mich. 394 (1878), has been superseded by intervening changes in the positive law. See Associated Builders and Contractors v Lansing, 499 Mich. 177, 191 (2016) ("The Court of Appeals is bound to follow decisions by this Court except where those decisions have clearly been overruled or superseded . . . .").
In Lilly, following foreclosure of the subject premises, the sheriff delayed recording the deed for four days after the premises were struck off. Lilly, 39 Mich. at 395. The Court held that "the statute appears to intend that the giving and depositing the proper deed shall be incidents of the sale and the regular acts to consummate it." Id. Thus, Lilly held that the "sale" is not complete, and the redemption period does not begin to run, until the deed is recorded. Id. at 397 ("The reasonable view to take of the statute is that it regards the execution and deposit of the proper deed as the consummation of the sale, and as marking the true time, when there is no unreasonable delay, for the commencement of the redemption year, and the time for dating the beginning of the period in the certificate for the deed to become operative.").0F
See also Mills v Jirasek, 267 Mich. 609, 613 (1934) (" 'We have held in Lilly v Gibbs, 39 Mich. 394[, 396-397 (1878),] that the time of redemption in such a case does not begin to run until the deed is filed.' "), quoting Perkins v Keller, 43 Mich. 53, 54 (1880).
In this case, the Court of Appeals panel relied in part on Kessler v Longview Agricultural Asset Mgt, LLC, 345 Mich.App. 196 (2023), which held, in essence, that Lilly has been superseded by intervening changes to the foreclosure statutes. See Kessler, 345 Mich.App. at 210 ("[T]he Lilly decision is not applicable to the present case. Since 1878, when the Lilly decision was rendered, the foreclosure statutes have been amended many times."). Kessler explained that, under the current MCL 600.3240, "the general rule is that there is a one-year period of redemption that commences from 'the date of the sale,'" id., which Kessler distinguished from the date of the recording, id. at 207.1F The implication, of course, is that the statute that was in place when Lilly was decided did not include similar language. But it is not clear to me that this is true. 1871 CL 6922, the statute that governed the redemption period at the time, provided, "If the mortgageor . . . or any person lawfully claiming from, or under him . . ., shall, within one year from the time of such sale, redeem the entire premises . . ., then such deed shall be void and of no effect . . . ." (Emphasis added.)2F
In so holding, the court declined to follow WW Mich. Props v Repokis, unpublished per curiam opinion of the Court of Appeals, issued September 23, 2014 (Docket No. 316555), a decision that followed Lilly's holding that "the redemption period did not begin to run until the deed was recorded." Id. at 3, citing Mills, 267 Mich. at 613, and Lilly, 39 Mich. at 396.
Lilly did not expressly cite 1871 CL 6922, but it did cite 1871 CL 6920, another section in the same chapter, for the requirement to record the deed. In addition, Lilly repeatedly referred to a one-year redemption period, which is the length of time provided in 1871 CL 6922.
While determining whether a case was superseded can sometimes be difficult, our holding in Associated Builders & Contractors makes clear that when the operative language remains the same, a decision is not clearly superseded and the Court of Appeals is bound by it.3F As a result, while Kessler was correct to note that the statute has been amended since Lilly was decided, Kessler may have erred by summarily finding that the difference in statutory language was material without examining the similarities in the language of the pertinent statutes. In turn, the Court of Appeals may have erred by relying on Kessler in this case. 4F
See Associated Builders & Contractors, 499 Mich. at 191 n 32 ("Although one can determine with relative ease whether a case was overruled by this Court, we acknowledge that it is not always so easy to determine whether a case has been 'clearly overruled or superseded' by intervening changes in the positive law. At one end of the spectrum are situations in which the Legislature has entirely repealed or amended a statute to expressly repudiate a court decision. In such situations, lower courts have the power to make decisions without being bound by prior cases that were decided under the now-repudiated previous positive law. The other end of the spectrum is harder to define; however, as it relates to this case, because both the 1908 Constitution and the 1963 Constitution contain the phrase at issue in [Attorney General ex rel Lennane v Detroit, 225 Mich. 631 (1923),]'relating to its municipal concerns'-Lennane had not been clearly superseded, and the Court of Appeals was bound by it.") (emphasis added).
Kessler addressed MCL 600.3240 (governing foreclosures by advertisement), while the Court of Appeals panel here addressed MCL 600.3140 (governing foreclosures by judicial action), but the Court of Appeals panel reasonably held that the two statutes should be read together. See Great Lakes Prop Mgt Consultants, Inc v HP Foreclosure Solution, LLC, __Mich App__(2023); slip op at 10 (" 'The distinction, however, is irrelevant under the circumstances.' "), quoting Can IV Packard Square, LLC v Packard Square, LLC, 328 Mich.App. 656, 664 (2019). This case introduces another wrinkle in that it was brought under MCL 559.208 of the Condominium Act, which of course did not exist when Lilly was decided. And MCL 559.208 uses different language to establish the redemption period than MCL 600.3140 or MCL 600.3240. See MCL 559.208(2) ("The redemption period for a foreclosure is 6 months from the date of sale unless the property is abandoned, in which event the redemption period is 1 month from the date of sale."). Yet that same subsection also provides that "[a] foreclosure shall be in the same manner as a foreclosure under the laws relating to foreclosure of real estate mortgages by advertisement or judicial action," which is a clear reference to MCL 600.3140 or MCL 600.3240. Thus, to the extent Lilly is still binding, it should at least be considered when addressing MCL 559.208.
Thus, while I concur in the Court's denial order, I believe the Court should consider in an appropriate future case whether Lilly was superseded by intervening changes in the law.