Bank of Am., NA v. First Am. Title Ins. Co., Docket No. 149599.
|499 Mich. 74,878 N.W.2d 816
|13 April 2016
|Docket No. 149599.,Calendar No. 7.
|BANK OF AMERICA, NA v. FIRST AMERICAN TITLE INSURANCE CO.
|Supreme Court of Michigan
RJ Landau Partners PLLC, Ann Arbor (by Richard J. Landau and Christopher A. Merritt ) for Bank of America.
Brooks Wilkins Sharkey & Turco, PLLC, Birmingham (by Steven M. Ribiat ), for First American Title Insurance Company.
Ottenwess, Taweel & Schenk, PLC, Detroit (by John R. Monnich ), for Westminster Abstract Company.
Warner Norcross & Judd LLP, Grand Rapids (by Gaëtan Gerville–Réache and Rodney D. Martin ) for the Michigan Bankers Association.
The Smith Appellate Law Firm (by Michael F. Smith ) for the American Land Title Association.
In this case, we are asked to address, among other things, the scope of the full credit bid rule. Plaintiff has asserted a variety of claims against certain entities and individuals involved in various allegedly fraudulent mortgage transactions. The Oakland Circuit Court granted summary disposition pursuant to MCR 2.116(C)(10)
in favor of defendants as to all claims. The Court of Appeals affirmed in part and reversed in part, relying on the full credit bid rule as discussed in New Freedom Mtg. Corp. v. Globe Mtg. Corp.1 to conclude that certain claims raised by plaintiff were barred by plaintiff's full credit bids at the foreclosure sales.
For the reasons stated below, we conclude that the New Freedom panel erred to the extent it held that the full credit bid rule bars contract claims against nonborrower third parties, such as defendants in this case. Therefore, the Court of Appeals in the instant case erred by concluding that plaintiff's full credit bids barred its contract claims against the nonborrower third-party defendants. As to the other claims at issue in this appeal, we conclude that closing instructions constitute a contract upon which a breach of contract claim can be brought, and we remand to the trial court for reconsideration of whether summary disposition is appropriate on this claim. We also conclude that the lower courts erroneously interpreted the parties' closing protection letters and therefore remand to the trial court to reconsider whether summary disposition is appropriate as to plaintiff's claim under the parameters set forth in this opinion. In sum, we reverse the judgment of the Court of Appeals and remand to the Oakland Circuit Court for further proceedings consistent with this opinion.
In 2005 and 2006, an independent mortgage broker submitted four loan packages to plaintiff Bank of America, NA. Bank of America agreed to finance a percentage of the borrowers' purchases of the properties. After issuing the loan commitments, Bank of America sent closing instructions to two closing agents, defendants Westminster Abstract Company (Westminster) and Patriot Title Agency (Patriot). Those closing agents agreed to close the four loans in exchange for a fee.
The closing instructions required that a closing protection letter (CPL) be issued in connection with each closing. Defendant First American Title Insurance Co (First American) was the title insurance company for all four sales and agreed to issue CPLs for all four closings. Under the CPLs, First American agreed to reimburse Bank of America for its actual losses incurred in connection with the closing if the losses arose out of, among other things, the fraud or dishonesty of the closing agents.
After First American issued the CPLs, the closings occurred. Westminster closed on loans for two of the properties: 13232 Enid Boulevard (Enid), for which Bank of America provided a $3,575,000 loan; and 1890 Heron Ridge Court (Heron Ridge), for which Bank of America provided a $2,800,000 loan. Patriot closed on loans for the other two properties: 1766 Golf Ridge Drive (Golf Ridge), for which Bank of America provided a $1,500,000 loan; and 1550 Kirkway Road (Kirkway), for which Bank of America provided a $1,500,000 loan. Unbeknownst to Bank of America, the values of the properties had been inflated by fraudulent appraisals and straw buyers who were paid for their participation. Shortly after closing, all four borrowers defaulted.
Bank of America foreclosed by advertisement on all four properties in accordance with Michigan's foreclosure statutes.2 It subsequently purchased all four properties at sheriff sales with credit bids. It made full credit bids—i.e., credit bids in the full amount of the unpaid principal and interest plus foreclosure costs—on the Enid and Kirkway properties. Thereafter, Bank of America sold all the properties to bona fide purchasers.3 Bank of America claims it lost roughly $7 million on the deals.
During the foreclosure proceedings, Bank of America discovered the underlying fraud in each of the four loans. Bank of America brought the instant suit against First American, Westminster, and Patriot, as well as several individuals involved in the closings.4 Pertinent to this appeal, Bank of America asserted a claim against Westminster, alleging that it violated the specific terms of the closing instructions, and a claim against First American for recovery under the CPLs for the actual losses arising from Westminster's and Patriot's fraud and dishonesty during the closings.5
Defendants moved for summary disposition. The circuit court granted First American and Westminster summary disposition under MCR 2.116(C)(10)
as to all claims and thereafter denied Bank of America's motion for reconsideration.
In a split, unpublished opinion, the Court of Appeals affirmed in part and reversed in part.6 The majority found New Freedom controlling. Quoting New Freedom, the panel defined the full credit bid rule as follows:
Although the majority appeared to question the validity of New Freedom, it concluded that New Freedom extended the full credit bid rule to indemnity claims under CPLs. The majority first considered First American's liability under the CPLs for the closings done by Patriot. The majority concluded that genuine issues of material fact remained as to whether Patriot engaged in fraud or dishonesty at the Golf Ridge and Kirkway closings. Nonetheless, it affirmed the trial court's order granting summary disposition in favor of First American as to the claim based on the Kirkway closing. Recognizing that Bank of America made a full credit bid on the Kirkway property, the majority held that the full credit bid rule barred Bank of America's claim against First American stemming from the closing on that property.8 The majority then turned to First American's liability regarding the Westminster closings. The majority concluded that Bank of America failed to produce evidence to create a question of fact as to whether Westminster knew of or participated in the underlying fraud in the closings of the Enid and Heron Ridge properties. Thus, the majority held that the trial court properly granted summary disposition to First American and Westminster. Finally, the majority considered the validity of Bank of America's contract claim against Westminster.9 The majority concluded that Bank of America did not establish a link between Westminster's alleged violations of the closing instructions and the claimed damages. Even if the majority had concluded there was a link, it also rejected Bank of America's claim against Westminster stemming from the closing on the Enid property because there were no damages due to Bank of America's full credit bid at the foreclosure sale.10
Bank of America sought leave to appeal in this Court. On November 19, 2014, we granted leave to appeal and asked the parties to include among the issues briefed:
(1) whether a separate contract between the lender and the closing agent existed outside of the closing protection letters; (2) whether there was a genuine issue of material fact regarding the closing agent's violation of the terms of the lender's written closing instructions; and (3) whether the full credit bid rule of New Freedom Mortgage Corp. v. Globe Mortgage Corp., 281 Mich.App. 63 (2008)
, is a correct rule of law and, if so, whether it applies to this case.[11
We review de novo a trial court's decision regarding summary disposition.12 The trial court granted summary disposition in favor of defendants Westminster and First American under MCR 2.116(C)(10)
. A motion brought under MCR 2.116(C)(10)"tests the factual sufficiency of the complaint."13 In resolving such a motion, "a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties ... in the light most favorable to the party opposing the motion."14 If the evidence fails to establish a genuine issue regarding any material fact, the movant is entitled to judgment as a matter of law.15
We also review de novo questions of statutory interpretation and contractual interpretation.16 To the extent this case requires the interpretation of a statute, our goal in interpreting a statute is to give effect to the Legislature's intent, focusing first on the statute's plain language.17 When a statute's language is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written.18 No further judicial construction is required or permitted.19 To the extent this case requires the interpretation of a contract, our primary goal in interpreting any contract is to give effect to the parties' intentions at the time they entered into the contract.20 We ...
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