Tidwell v. Dasher
| Decision Date | 08 October 1986 |
| Docket Number | Docket No. 84920 |
| Citation | 152 Mich.App. 379,393 N.W.2d 644 |
| Parties | Travis TIDWELL, Plaintiff-Appellant, v. Dorothy DASHER, Donald H. Dasher, Lloyd E. Dasher, Gwen Dasher, Gerald H. Dasher, Joyce L. Dasher, Joyce E. Mate, and Marie Cecile Tidwell, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Eugene A. Goreta, Ecorse, for plaintiff-appellant.
Thomas F. Chernot, Farmington Hills, for defendants-appellees Dasher.
Before CYNAR, P.J., and WAHLS and BORRADAILE *, JJ.
Plaintiff appeals as of right from an order entered by the trial judge granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(10), the court finding no genuine issue of material fact.
It appears that the defendants Dasher and Mate owned the premises in fee simple at 1374 Cleveland in Lincoln Park, Michigan, and on December 22, 1980, sold the property to plaintiff, Travis Tidwell, and defendant Marie Tidwell, who at that time were husband and wife, for the sum of $42,500 with a $7,500 cash down payment and the balance to be paid on land contract at $350 per month, including 10% interest.
On October 9, 1981, plaintiff secured a judgment of divorce from defendant Marie Tidwell, who has failed to enter an appearance or file a brief in this matter on appeal. In the judgment of divorce, she was given the real estate free and clear of any claim on the part of the plaintiff, subject to the land contract encumbrance and any home improvement loan or loans thereon which she was to assume and agree to pay and hold the plaintiff harmless therefrom. Then the judgment provided: "It is further ordered and adjudged that the above described property should be subject to a lien in the sum of seven thousand ($7,000) dollars in favor of the plaintiff, Travis Tidwell and said lien shall be payable when the marital home is sold or within the period of ten (10) years, whichever event occurs first." According to plaintiff's brief, the divorce judgment was recorded in the Wayne County Register of Deeds office on November 26, 1981, in Liber G62321268, page 749692. Defendant Tidwell, as vendee, defaulted on the land contract and also failed to pay taxes and water bills. On November 12, 1982, she filed for bankruptcy and listed the plaintiff as a creditor in her bankruptcy schedule for the $7,000 on the property settlement, and also listed as creditors the vendors for the debt owed under the land contract. Counsel stated at oral argument and alleged in the briefs filed that the trustee of the bankruptcy estate abandoned any interest in the land contract as having an inconsequential value. On March 17, 1983, defendant Tidwell as vendee, was discharged in bankruptcy of her debts.
On February 5, 1983, the vendee executed a quitclaim deed in lieu of foreclosure to the vendors to clear the title. Plaintiff filed the complaint which is the subject of this case to foreclose his divorce judgment lien on October 4, 1983, naming the vendors and the vendee as defendants, and the vendors filed a countercomplaint against the plaintiff for a bill to clear the cloud on the title. In February, 1985, the parties agreed that plaintiff would discharge his lien claim on the real estate so that the property could be sold, and the property was subsequently sold to a third party for $39,000 with the sum of $8,000 placed in an escrow account pending judicial determination of the rights of the parties.
After hearing oral argument on April 5, 1985, the circuit judge denied plaintiff's motion for summary disposition and granted the vendor defendants' motion for summary disposition based on no disputed issue of material fact, and also ordered that the plaintiff's complaint be dismissed.
Plaintiff on appeal alleges that the quitclaim deed from the vendee to the vendors in lieu of foreclosure does not extinguish his recorded junior judgment lien, and also alleges that her discharge in bankruptcy does not discharge the interests of the judgment lien recorded prior to the filing of the bankruptcy petition.
The defendant vendors in this case allege that the lien imposed by the divorce judgment is not enforceable against them because they were not parties to the divorce and the lien attached only to the defendant wife's equity interest in the real estate and, because her equity is zero, there is no interest to be attached by plaintiff's lien.
Summary disposition under MCR 2.116(C)(10) should not be granted if a genuine issue exists as to any material fact. The test as stated in Rizzo v. Kretschmer, 389 Mich. 363, 371-373, 207 N.W.2d 316 (1973), is whether the record which might be developed, giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ. To grant summary disposition the court must be satisfied that it would be impossible for the claim to be supported at trial because of some deficiency which cannot be overcome. See GCR 1963, 117.2(3); Jackson Dist. Library v. Jackson County # 1, 146 Mich.App. 392, 400, 380 N.W.2d 112 (1985).
Though the former wife of plaintiff had been discharged in bankruptcy, the law seems quite clear that a discharge in bankruptcy does not affect a lien of a mortgage, as a discharge is no bar to a subsequent foreclosure but only relieves the discharged bankrupt from personal liability on the obligation. See First State Bank v. Zoss, 312 N.W.2d 127 (S.D.1981). Congress has recently amended the bankruptcy code effective October 8, 1984, to provide that a discharge no longer operates as an injunction against an act to collect, recover or offset any discharged debt from property of the debtor, whether or not the discharge is waived. A discharge therefore no longer operates to prohibit the enforcement of a lien upon property of the debtor that has not otherwise been avoided. See 9A Am Jur2d (1985 Cum Supp), Bankruptcy, Sec. 779, p 166. 11 U.S.C. Sec. 524(a)(2) was amended in 1984 by Pub.L. 98-353, effective October 8, 1984.
Just as the vendors' interest was not discharged by bankruptcy proceedings, neither can it be found on the state of facts as existed when the matter was argued before the trial court that the lien provided in the judgment of divorce was discharged as it affected the property. See also Mary v. Lewis, 399 Mich. 401, 410-412, 249 N.W.2d 102 (1976).
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...would be impossible for the claim to be supported at trial because of some deficiency which cannot be overcome. Tidwell v. Dasher, 152 Mich.App. 379, 383, 393 N.W.2d 644 (1986). The court must consider the pleadings, affidavits, depositions, and other available evidence. Hagerl v. Auto Club......
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