Greenville Lafayette, LLC v. Elgin State Bank

• Citation: 296 Mich.App. 284,818 N.W.2d 460
• Decision Date: 17 April 2012
• Docket Number: Docket No. 308450.
• Parties: GREENVILLE LAFAYETTE, LLC v. ELGIN STATE BANK.
• Court: Court of Appeal of Michigan (US)

296 Mich.App. 284

818 N.W.2d 460

GREENVILLE LAFAYETTE, LLC

v.ELGIN STATE BANK.

Docket No. 308450.

Court of Appeals of Michigan.

Submitted April 10, 2012, at Lansing.

Decided April 17, 2012, at 9:25 a.m.

Miller Johnson, Grand Rapids (by Robert W. O'Brien and Joseph J. Gavin) for plaintiff.

McShane & Bowie, P.L.C., Grand Rapids (by Andrew C. Shier), for defendant.

Before: HOEKSTRA, P.J., and SAWYER and SAAD, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court's order dismissing its complaint, which sought an injunction against defendant's foreclosure by advertisement. Because we conclude that the plain language of MCL 600.3204 bars defendant's foreclosure action, we reverse.

This case arises out of defendant-mortgagee's foreclosure by advertisement of plaintiff-mortgagor's real property in Montcalm County. In early June 2007, plaintiff and defendant entered into a “Business Loan Agreement” for approximately $1.8 million. The same day, the parties entered into a separate mortgage agreementto secure defendant's loan to plaintiff. In the mortgage agreement, plaintiff mortgaged to defendant real property it owned in Montcalm County. The $1.8 million loan was also secured by two separate commercial guaranties, each in the amount of $300,000, executed by Avi Banker and Ahron Shulman.

The loan matured on June 6, 2011, with plaintiff owing defendant an outstanding balance of approximately $1.7 million. Attempts to renegotiate and extend the mortgage were unsuccessful, and defendant sued to collect on the two commercial guaranties in August 2011. The next month, while the action regarding the guaranties was still pending, defendant sent plaintiff its “Notice of Mortgage Foreclosure Sale,” which informed plaintiff of defendant's intent to foreclose by advertisement on plaintiff's real property.

On October 20, 2011, plaintiff filed its complaint. Plaintiff sought an injunction against defendant's pending foreclosure sale and a declaratory judgment stating that defendant was not entitled to proceed with the foreclosure sale according to MCL 600.3204(1)(b). Defendant answered the complaint, and subsequently filed a motion for summary disposition pursuant to MCR 2.116(C)(8), arguing that Michigan law permits foreclosure by advertisement while an action is pending against a guarantor. After hearing oral arguments, the trial court granted defendant's motion for summary disposition and held as a matter of law that defendant was entitled to foreclose by advertisement notwithstanding the existing legal action against the guarantors. Plaintiff now appeals the trial court's order.

We review de novo a decision on a motion for summary disposition. Ligon v. Detroit, 276 Mich.App. 120, 124, 739 N.W.2d 900 (2007). A motion for summary disposition brought pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the complaint. Maiden v. Rozwood, 461 Mich. 109, 119, 597 N.W.2d 817 (1999). “All well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant.” Id. Summary disposition is only appropriate when “the claims are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery.” Wade v. Dep't of Corrections, 439 Mich. 158, 163, 483 N.W.2d 26 (1992). We also review questions of statutory and contract interpretation de novo. Adair v. Mich., 486 Mich. 468, 477, 785 N.W.2d 119 (2010); Archambo v. Lawyers Title Ins. Corp., 466 Mich. 402, 408, 646 N.W.2d 170 (2002).

The statute at issue in this case, MCL 600.3204(1), provides:

Subject to subsection (4), a party may foreclose a mortgage by advertisement if all of the following circumstances exist:

(a) A default in a condition of the mortgage has occurred, by which the power to sell became operative.

(b) An action or proceeding has not been instituted, at law, to recover the debt secured by the mortgage or any part of the mortgage; or, if an action or proceeding has been instituted, the action or proceeding has been discontinued; or an execution on a judgment rendered in an action or proceeding has been returned unsatisfied, in whole or in part.

(c) The mortgage containing the power of sale has been properly recorded.

(d) The party foreclosing the mortgage is either the owner of the indebtedness or of an interest in the indebtedness secured by the mortgage or the servicing agent of the mortgage.

“The primary goal of statutory interpretation is to give effect to the Legislature's intent, focusing first on the statute's plain language.” Klooster v. City of Charlevoix, 488 Mich. 289, 296, 795 N.W.2d 578 (2011). The language is read according to its “ordinary and generally accepted meaning.” Oakland Co. Bd. of Co. Rd. Comm'rs v. Mich. Prop. & Cas. Guaranty Ass'n, 456 Mich. 590, 599, 575 N.W.2d 751 (1998). “Where the language of a statute is clear, [this Court] will enforce the statute as written because the Legislature must have intended the meaning it plainly expressed.” Id.

The parties agree that §§ 3204(1)(a), (c), and (d) are satisfied. Accordingly, the outcome of this case turns on the interpretation of § 3204(1)(b); whether “[a]n action or proceeding has not been instituted, at law, to recover the debt secured by the mortgage or any part of the mortgage....” In the trial court, the parties relied on United States v. Leslie, 421 F.2d 763, 766 (C.A.6, 1970),¹ to support their arguments regarding the proper interpretation of the statute. Plaintiff argued that Leslie is distinguishable from the instant case, whereas defendant argued that this case is factually similar to Leslie. The trial court adopted the reasoning of defendant and granted summary disposition in its favor.

Under Michigan law, a creditor generally may simultaneously proceed against a guarantor and foreclose on a mortgaged property because the guaranty is an obligation separate from the mortgage note. Id. See also Mazur v. Young, 507 F.3d 1013, 1019 (C.A.6, 2007) (deciding issue under Michigan law, stating “[t]hat a guaranty agreement is an independent, collateral agreement is what allows a seller to proceed against a guarantor without having first exhausted the foreclosure remedy against the buyer.”).² In Church & Church, Inc. v. A–1 Carpentry, 281 Mich.App. 330, 341, 766 N.W.2d 30 (2008), vacated in part and aff'd in part on other grounds 483 Mich. 885, 759 N.W.2d 877 (2009), this Court relied on the decision in Leslie in interpreting MCL 600.3204, stating:

[T]he intention of the Legislature with respect to the foreclosure statutes was to force an election of remedies by a mortgagee concerning a single debt: i.e., the same mortgagee cannot simultaneously maintain a lawsuit for judicial foreclosure and a foreclosure by advertisement, because it would allow for double recovery on the same debt.

The facts of Leslie are similar to this case in that Leslie involved a mortgage foreclosure and a personal guaranty. In Leslie, the United States government commenced an action against the defendants-guarantors of a promissory note after the mortgagor corporation defaulted on its payments under the note. Id. at 764. After the government sought to enforce the guaranty contracts, the government filed a separate action for foreclosure by advertisement. Id. at 764–765. At trial, the guarantors argued that the applicable Michigan statute prohibited simultaneous actions for both foreclosure and enforcement of the guaranty contracts. Id. at 765.

The Leslie court held that the government was permitted to maintain both actions. Id. at 766. The court explained that the statute was intended to prevent the mortgagor from losing the mortgaged property and being held personally liable for the debt. Id.Leslie further explained that the statute was intended to protect the mortgagor, not the guarantors of a note. Id. The court concluded:

In the case before us, the debtor-mortgagor is [the corporation], not the defendants individually. No action was maintained against [the corporation] on the debt. The action in the District Court was brought against the defendants in their capacity as guarantors. The guaranty is an obligation separate from the mortgage note. It is simply not the “debt” to which the statute refers. [Id. at 766.]

On appeal, plaintiff argues that this case is distinguishable from Leslie and its progeny because the mortgage specifically defines the “indebtedness” as including the guaranties. Accordingly, plaintiff argues, the mortgage itself includes the guaranties in the mortgage debt, distinguishing this case from Leslie because the mortgage and the guaranties are not separate. Further, plaintiff maintains, because the mortgage specifically defines its indebtedness to include the guaranties, the action against the guarantors constituted an action “to recover the debt secured by the mortgage” pursuant to § 3204(1)(b), thereby rendering the foreclosure by advertisement invalid.³

The mortgage in this case provides that it is “given to secure” payment of the “indebtedness.” The mortgage further defines “indebtedness” to mean “all principal, interest, and other amounts, costs and expenses payable under the Note or Related Documents....” “Related Documents” is defined to mean “all promissory notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness” (emphasis added).

The goal of contract interpretation is to read the document as a whole and apply the plain language used in order to honor the intent of the parties. Dobbelaere v. Auto–Owners Ins. Co., 275 Mich.App. 527, 529, 740 N.W.2d 503 (2007). We must enforce the clear and unambiguous language of a contract as it is written. Frankenmuth Mut. Ins. Co. v. Masters, 460 Mich. 105, 111, 595 N.W.2d 832 (1999).

We agree with plaintiff that the...