Gillie v. Genesse County Treasurer

• Decision Date: 11 December 2007
• Docket Number: Docket No. 275268.
• Parties: David GILLIE, Plaintiff-Appellant, v. GENESEE COUNTY TREASURER, Defendant-Appellee, and Gene L. White, Barry D. Floyd, and Karel J. Floyd, Defendants.
• Court: Court of Appeal of Michigan — District of US

745 N.W.2d 137

277 Mich. App. 333

David GILLIE, Plaintiff-Appellant, v. GENESEE COUNTY TREASURER, Defendant-Appellee, and Gene L. White, Barry D. Floyd, and Karel J. Floyd, Defendants.

Docket No. 275268.

Court of Appeals of Michigan.

Submitted December 4, 2007, at Lansing.

Decided December 11, 2007, at 9:05 a.m.

Released for Publication February 28, 2008.

Robert H. Bancroft, Attorney at Law, P.C. (by Robert H. Bancroft), Flint, for the plaintiff.

Peter Goodstein, Flint, for the Genesee County Treasurer.

Before: DAVIS, P.J., and MURPHY and SERVITTO, JJ.

MURPHY, J.

Plaintiff David Gillie appeals as of right the trial court's order granting summary disposition in favor of defendant Genesee County Treasurer (the county) in this action arising out of a tax sale of property for delinquent 2001 property taxes and involving a dispute with respect to the ownership of the property. This case entails interpretation of the General Property Tax Act (GPTA), MCL 211.1 et seq. We vacate the judgment and order and remand for further proceedings on the issue of notice.

I. Basic Facts and Procedural History

At issue in this dispute is real property located on Fenton Road in the city of Flint, county of Genesee, having a tax parcel number of 40-24-428-039 and being legally described as lot 37 of the Earns Wideman Plat. (hereinafter the property). A warranty need dated July 1, 1992, reflects that the property had been owned by defendants Barry D. and Karel J. Floyd and that they conveyed the property to defendant Gene L. White. White, however, did not record the deed until February 14, 2005.

The county asserts on appeal and also asserted below: White was a Flint resident for 45 years; in 1998 he moved to Arkansas; at the time of his move, he notified the city of Flint to send his tax bills to his Arkansas address; the city complied and sent White's tax bills to his new Arkansas address for a time, but the city, without the direction or consent of White, subsequently and inexplicably changed his address in its tax records back to his old Flint address, although White still remained in Arkansas; and the 2001 tax bills were erroneously sent to White's Flint address and not the Arkansas address.¹ As noted by plaintiff, these assertions are not supported by documentary evidence in the record, although plaintiff makes no express claim that they are untrue.²

In May 2003, the county filed a petition for foreclosure on the basis that the property had been forfeited to the county for failure to pay $1,292 in property taxes for 2001. In the tax foreclosure proceedings, a show cause hearing relative to the delinquent taxes and forfeiture was. scheduled for January 29 and 30, 2004, and, in addition, a judicial foreclosure hearing was scheduled for February 9, 2004. The information concerning the hearings was contained in a single notice. According to an affidavit executed by a representative of Title Check, LLC, a company that contracted with the county to provide various tax lien foreclosure services, including the serving of notices for show cause and judicial foreclosure hearings, the notice for the January and February hearings was sent to White's old Flint address by certified mail, return receipt requested, in December 2003. Title Check records attached to the affidavit state, "attempted not known—1/14/04," with regard to the property at issue, which suggests that service of the notice by certified mail had not been successful. A second affidavit by the same representative indicates that personal service of foreclosure notices is also attempted by Title Check as part of its work for the county, and a company record attached to the affidavit reflects that the attempt at personal service in this case resulted only in a posting of the notice at the property. The attachment regarding the personal visit and attempt at service shows a date of December 1, 2003. There is no indication that the notice was personally handed to any person. An affidavit of publication further shows that the notice was published in The Flint Journal three times in January 2004.

On February 9, 2004, a final judgment of foreclosure was entered in the circuit court. Evidently, there had been no intervention by White or anyone through that date to acknowledge, challenge, or pay the tax delinquency. The judgment indicates that the county had filed proof of service, proof of publication, and proof of a personal visit in regard to the notice concerning the show cause and foreclosure hearings. The judgment, which clearly contains some boilerplate language as required by the relevant statutes, states that all parties interested in the forfeited properties were heard³ and that all interested parties entitled to notice and an opportunity to be heard were afforded such rights. The judgment also provides that title will vest absolutely in the county, without further rights of redemption, "if all forfeited delinquent taxes, interest, penalties and fees foreclosed against the parcel, plus any additional interest required by statute, are not paid to the County Treasurer on or before March 31, 2004." Furthermore, the judgment provides that all existing recorded and unrecorded interests in the property, subject to some exceptions not at issue here, are extinguished absent payment in full on or before March 31, 2004. Finally, the judgment indicates that it is a final order with respect to the property and, except as provided in MCL 211.78k(7), shall not be modified, stayed, or held invalid after March 31, 2004, "unless there is a contested case concerning a parcel in which event this final judgment, with respect to the parcel involved in the contested case, shall not be modified, stayed, or held invalid 21 days after the entry of the judgment in the contested case." There was no contested case with regard to the property and the tax delinquency.

No action was taken relative to the property by March 31, 2004. On October 26, 2004, as a result of the foreclosure judgment and the lack of any action in the interim, the property was put up for sale at auction by the county. Plaintiff submitted the high bid of $12,120, paying $1,500 in cash and tendering a check for the remaining $10,620. Plaintiffs receipt for the auction purchase of the property indicates that a deed would be recorded and forwarded to the purchaser within 30 days and that the sale was subject to the terms and conditions contained in various auction-related documents produced by the county. One of these documents, entitled "October 2004 Rules and Regulations, Genesee County Auction," provides that the county treasurer "reserves the right to cancel any sale at any time."

A deed to the property was not forwarded or delivered to plaintiff within 30 days of the auction sale and purchase. Pursuant to a letter dated December 15, 2004, from the county to plaintiff, the county canceled the sale and indicated that no deed would be forthcoming. The letter states that the county was canceling the sale because of an administrative error and that the property should never have been offered for public bidding. Enclosed was a refund of the $12,120 paid at auction by plaintiff.

A redemption certificate indicates that White subsequently paid $2,114 to the county on February 10, 2005, to cover the "total amount of delinquent taxes, penalties, interest and fees necessary to redeem the parcel." As indicated above, White finally recorded the 1992 deed from the Floyds on February 14, 2005. On February 23, 2005, the county filed and recorded a cancellation of notice of judgment of foreclosure, citing clerical error.

On March 8, 2005, plaintiff filed the instant action. The complaint, pursuant to MCL 600.2932 and MCR 3.411, sought to quiet title to the property, alleging that plaintiff was the rightful owner, that all other interests were extinguished by the tax sale at auction, and that plaintiff had superior title. Plaintiff demanded that the county issue him a quitclaim deed for the property. Plaintiff named the county, the Floyds, and White as defendants. White answered and filed affirmative defenses, maintaining that his Arkansas address had been well known to the city and county and that he was not afforded notice of the tax delinquency and foreclosure proceedings. On October 13, 2005, White filed a motion for summary disposition, arguing that the county properly canceled the sale of the property to plaintiff. A December 7, 2005, order reflects that the trial court denied the motion because too many factual and legal issues existed. We have no record of a hearing on the motion.

On February 27, 2006, the county filed a motion for summary disposition, arguing that the quiet-title action against it must be dismissed because it was undisputed that the county no longer held any interest in the property. On March 22, 2006, plaintiff filed his own motion for summary disposition, contending that upon completion of the auction sale, fee simple title vested in plaintiff. At the hearing on the motions held April 10, 2006, the trial court first noted that the county did not have anything to give plaintiff, considering that it had already conveyed the property back to White; it was plaintiff and White who had the competing title claims as far as quieting title. The court decided to allow plaintiff an opportunity to file an amended complaint to seek money damages against the county for any claimed wrongful withholding of title or wrongful conveyance of title to White. The court held in abeyance any ruling on the quiet-title dispute as between plaintiff and White and whether the county rightfully canceled the sale. The order that was subsequently entered on the motions for summary disposition reflects that both motions were denied, and plaintiff was given 21 days to file an amended complaint.

On May 25, 2006, plaintiff filed an amended complaint, leaving intact the claim seeking to quiet title to the property and adding a claim of...