Bank of Am., NA v. Fid. Nat'l Title Ins. Co., Docket Nos. 311798

CourtCourt of Appeal of Michigan (US)
Writing for the CourtO'BRIEN, J.
Citation316 Mich.App. 480,892 N.W.2d 467
Parties BANK OF AMERICA, NA v. FIDELITY NATIONAL TITLE INSURANCE COMPANY.
Decision Date21 June 2016
Docket Number312426,313797,316538.,Docket Nos. 311798

316 Mich.App. 480
892 N.W.2d 467

BANK OF AMERICA, NA
v.
FIDELITY NATIONAL TITLE INSURANCE COMPANY.

Docket Nos. 311798
312426
313797
316538.

Court of Appeals of Michigan.

Submitted June 14, 2016, at Detroit.
Decided June 21, 2016.

Approved for publication July 26, 2016, at 9:05 a.m.


892 N.W.2d 471

RJ Landau Partners PLLC, Ann Arbor (by Richard J. Landau and Christopher A. Merritt ), for Bank of America.

Curley & Berkal, P.C., Southfield (by John E. Curley ), and Hahn, Loeser & Parks LLP (by Robert J. Fogarty ), for Fidelity National Title Insurance Company.

Before: METER, P.J., and SHAPIRO and O'BRIEN, JJ.

O'BRIEN, J.

316 Mich.App. 485

In Docket No. 311798, plaintiff, Bank of America, NA (BOA), appeals as of right a final order granting BOA's motion to dismiss its remaining claims following an earlier order granting summary disposition in favor of defendant Fidelity National Title Insurance Company (FNTIC) with respect to BOA's breach of contract claims against FNTIC. In Docket No. 312426, BOA appeals as of right an order granting FNTIC's motion for costs and awarding

892 N.W.2d 472

FNTIC costs in the amount of $19,580.04. In Docket No. 313797, BOA appeals as of right an order granting FNTIC's motion

316 Mich.App. 486

for attorney fees in the amount of $164,539. In Docket No. 316538,1 plaintiff, BOA, appeals as of right a final order dismissing BOA's claims against defendant Chicago Title Insurance Company (CTIC), formerly known as Ticor Title Insurance of Florida, and dismissing CTIC's counterclaims against BOA following an earlier order granting summary disposition in favor of defendant FNTIC, formerly known as Lawyers Title Insurance Corporation (LTIC), with respect to BOA's breach of contract claims against FNTIC. The appeals were consolidated to advance the efficient administration of the appellate process. Bank of America, NA v. Fidelity Nat'l Title Ins. Co., unpublished order of the Court of Appeals, entered August 6, 2015 (Docket Nos. 311798, 312426, 313797, 316538).

In Docket No. 311798, we reverse the order granting summary disposition to FNTIC regarding BOA's breach of contract claims, reverse the order denying BOA's motion for summary disposition concerning FNTIC's counterclaims and affirmative defenses, and remand for further proceedings consistent with this opinion. In Docket Nos. 312426 and 313797, we vacate the order striking the case evaluation award and the orders awarding costs and attorney fees to FNTIC. In Docket No. 316538, we reverse the order granting summary disposition to FNTIC regarding BOA's breach of contract claims, affirm the order denying BOA's motion for summary disposition concerning its breach of contract claims, affirm the order granting summary disposition to BOA regarding FNTIC's counterclaims and affirmative defenses, and remand for further proceedings consistent with this opinion.

316 Mich.App. 487

These cases arise from allegations of mortgage fraud perpetrated by various individuals and entities against BOA, the mortgage lender that commenced both of the lower court actions that led to the present appeals. Pertinent to these appeals, BOA filed breach of contract claims against FNTIC, the title insurer that had issued closing protection letters (CPLs) that promised to indemnify BOA for any actual losses arising from fraud or dishonesty in handling BOA's funds or documents on the part of the closing agent, who was also the title agent of FNTIC, in each action. In each underlying action, the trial court granted summary disposition to FNTIC on BOA's breach of contract claims, and BOA challenges those respective determinations on appeal in Docket Nos. 311798 and 316538. In Docket Nos. 312426 and 313797, BOA challenges the trial court's order striking the case evaluation award and the trial court's award of costs and attorney fees to FNTIC in the same underlying action that led to the appeal in Docket No. 311798.

I. STANDARDS OF REVIEW

"This Court reviews de novo a trial court's decision on a motion for summary disposition." Hackel v. Macomb Co. Comm., 298 Mich.App. 311, 315, 826 N.W.2d 753 (2012).

A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint on the basis of the pleadings alone to determine if the opposing party has stated a claim for which relief can be granted. A reviewing court must accept all well-pleaded allegations as true and construe them in the light most favorable to the nonmoving party. The motion should be
892 N.W.2d 473
granted only if no factual development could possibly justify a recovery.

A motion brought under MCR 2.116(C)(9) seeks a determination whether the opposing party has failed to
316 Mich.App. 488
state a valid defense to the claim asserted against it. A motion under MCR 2.116(C)(9) is analogous to one brought pursuant to MCR 2.116(C)(8) in that both motions are tested by the pleadings alone, with the court accepting all well-pleaded allegations as true. When a party's defenses are so untenable as a matter of law that no factual development could possibly deny the plaintiff's right to recovery, the motion is properly granted. [Id. at 315–316, 826 N.W.2d 753 (citations and quotation marks omitted).]

"In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial." Walsh v. Taylor, 263 Mich.App. 618, 621, 689 N.W.2d 506 (2004). "Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Latham v. Barton Malow Co., 480 Mich. 105, 111, 746 N.W.2d 868 (2008). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003).

The interpretation of a contract presents a question of law that is reviewed de novo. Kloian v. Domino's Pizza, LLC, 273 Mich.App. 449, 452, 733 N.W.2d 766 (2006).

In interpreting a contract, this Court's obligation is to determine the intent of the parties. This Court must examine the language of the contract and accord the words their ordinary and plain meanings, if such meanings are apparent. If the contractual language is unambiguous, courts must interpret and enforce the contract as written. Thus, an unambiguous contractual provision is reflective of the parties' intent as a matter of law. [In re
316 Mich.App. 489
Smith Trust, 274 Mich.App. 283, 285, 731 N.W.2d 810 (2007) (citations and quotation marks omitted).]

II. FNTIC'S LIABILITY UNDER THE CLOSING PROTECTION LETTERS

To prevail on a breach of contract claim, a party "must establish by a preponderance of the evidence that (1) there was a contract, (2) the other party breached the contract, and (3) the breach resulted in damages to the party claiming breach." Bank of America, NA v. First American Title Ins. Co. 499 Mich. 74, 100, 878 N.W.2d 816 (2016) (FATCO ).

A CPL is a contract between the title company and the lender whereby the title insurance company agrees to indemnify the lender for any losses caused by the failure of the title agent to follow the lender's closing instructions. A CPL is necessary because, while a title agent is the agent of the title insurance company for purposes of selling the title insurance policy (and binding the company to the insurance contract), that agency relationship does not extend to the title agent's conduct at the closing. As a result, a lender who also wants the title insurer to be responsible for the agent's acts in connection with escrow closing activities and services must separately contract with the title insurer for such additional protection by entering into an insured closing letter or closing protection
892 N.W.2d 474
letter. [Id. at 104, 878 N.W.2d 816 (citations, brackets, and quotation marks omitted).]

See also New Freedom Mtg. Corp. v. Globe Mtg. Corp., 281 Mich.App. 63, 80, 761 N.W.2d 832 (2008) ("A closing protection letter is typically issued by a title insurance underwriter ‘[t]o verify the agent's authority to issue the underwriter's policies and to make the financial resources of the national title insurance underwriter available to indemnify lenders and purchasers for the local agent's errors or dishonesty with escrow or closing funds.’ ") (citation omitted; alteration in original) overruled in part on other grounds by FATCO, 499 Mich. 74, 878 N.W.2d 816 (2016).

316 Mich.App. 490

The CPLs issued for the closings at issue in Docket No. 311798 provided, in relevant part, that FNTIC...

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18 practice notes
  • Sabbagh v. Hamilton Psychological Servs., PLC, No. 342150
    • United States
    • Court of Appeal of Michigan (US)
    • August 6, 2019
    ...make determinations of credibility, or otherwise decide questions of fact. Bank of America, N.A. v. Fidelity Nat'l Title Ins. Co. , 316 Mich. App. 480, 512-513, 892 N.W.2d 467 (2016).In its motion for summary disposition, Hamilton argued, in pertinent part, that plaintiffs could not prove t......
  • Cox v. Eric J. Hartman, M.D., & Blue Water Obstetrics & Gynecology Prof'l Corp., Nos. 333849
    • United States
    • Court of Appeal of Michigan (US)
    • December 12, 2017
    ...opposing party, leaves open an issue upon which reasonable minds might differ. [ Bank of America, NA v. Fidelity Nat'l Title Ins. Co. , 316 Mich. App. 480, 488, 892 N.W.2d 467 (2016) (quotation marks and citations omitted).]"The plaintiff in a medical malpractice action bears the burden of ......
  • Trzeciak v. Allstate Prop. & Cas. Ins. Co., Case Number 21-10737
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • October 29, 2021
    ...injuring the right of the other party to receive the fruits of the contract." Bank of America, NA v. Fidelity National Title Ins. Co. , 316 Mich. App. 480, 501, 892 N.W.2d 467, 479 (2016) (quoting Hammond v. United of Oakland, Inc. , 193 Mich. App. 146, 151-52, 483 N.W.2d 652, 655 (1992) ).......
  • Trzeciak v. Allstate Prop. & Cas. Ins. Co., 21-10737
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • October 29, 2021
    ...injuring the right of the other party to receive the fruits of the contract.” Bank of America, NA v. Fidelity National Title Ins. Co., 316 Mich.App. 480, 501, 892 N.W.2d 467, 479 (2016) (quoting Hammond v. United of Oakland, Inc., 193 Mich.App. 146, 151-52, 483 N.W.2d 652, 655 (1992)). Howe......
  • Request a trial to view additional results
18 cases
  • Sabbagh v. Hamilton Psychological Servs., PLC, No. 342150
    • United States
    • Court of Appeal of Michigan (US)
    • August 6, 2019
    ...make determinations of credibility, or otherwise decide questions of fact. Bank of America, N.A. v. Fidelity Nat'l Title Ins. Co. , 316 Mich. App. 480, 512-513, 892 N.W.2d 467 (2016).In its motion for summary disposition, Hamilton argued, in pertinent part, that plaintiffs could not prove t......
  • Cox v. Eric J. Hartman, M.D., & Blue Water Obstetrics & Gynecology Prof'l Corp., Nos. 333849
    • United States
    • Court of Appeal of Michigan (US)
    • December 12, 2017
    ...opposing party, leaves open an issue upon which reasonable minds might differ. [ Bank of America, NA v. Fidelity Nat'l Title Ins. Co. , 316 Mich. App. 480, 488, 892 N.W.2d 467 (2016) (quotation marks and citations omitted).]"The plaintiff in a medical malpractice action bears the burden of ......
  • Trzeciak v. Allstate Prop. & Cas. Ins. Co., Case Number 21-10737
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • October 29, 2021
    ...injuring the right of the other party to receive the fruits of the contract." Bank of America, NA v. Fidelity National Title Ins. Co. , 316 Mich. App. 480, 501, 892 N.W.2d 467, 479 (2016) (quoting Hammond v. United of Oakland, Inc. , 193 Mich. App. 146, 151-52, 483 N.W.2d 652, 655 (1992) ).......
  • Trzeciak v. Allstate Prop. & Cas. Ins. Co., 21-10737
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • October 29, 2021
    ...injuring the right of the other party to receive the fruits of the contract.” Bank of America, NA v. Fidelity National Title Ins. Co., 316 Mich.App. 480, 501, 892 N.W.2d 467, 479 (2016) (quoting Hammond v. United of Oakland, Inc., 193 Mich.App. 146, 151-52, 483 N.W.2d 652, 655 (1992)). Howe......
  • Request a trial to view additional results

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