Yanover v. Hancock
| Docket Number | 357274 |
| Decision Date | 25 August 2022 |
| Parties | DOLORES R. YANOVER, Trustee of DOLORES R. YANOVER REVOCABLE TRUST, Plaintiff-Appellant, v. BETTY SUE HANCOCK, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court LC No. 19-016638-CK
Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.
In this action for breach of contract and mortgage foreclosure plaintiff appeals as of right the trial court's order granting summary disposition in favor of defendant. We affirm in part, reverse in part, and remand for further proceedings.
On May 21, 1990, plaintiff Dolores R. Yanover, trustee of the Dolores R. Yanover Revocable Trust, loaned defendant (her neighbor) $60,000 in exchange for a note and mortgage on defendant's home in Northville. Though not relevant to the issue presented, the purpose of the loan was to allow defendant and her special needs child to remain in the marital home after her divorce. Under the mortgage and note defendant owed a monthly payment to plaintiff, beginning on June 21, 1990. The mortgage and note also contained a clause requiring the balance of the mortgage note, if not paid off sooner, to become due on May 21, 1995. Sometime later, plaintiff loaned defendant another $20,000, though no documents were signed to memorialize this loan.
Plaintiff never received any payments on the $60,000 mortgage. Because of this, on June 28, 2000, plaintiff prepared a letter for defendant to sign because she believed defendant needed to be reminded that she still owed money to plaintiff. The letter read:
Defendant signed the letter directly below the following statement: "I reaffirm the debt mentioned above still exists and I acknowledge the fact that the interest continues to accrue on this debt."
Sometime after this letter was signed, defendant paid plaintiff $30,000 dollars for the unsecured loan-the $20,000 principal plus $10,000 in interest. Neither party knows exactly when this occurred, but plaintiff testified this unsecured loan was paid off sometime in 2000. Consistent with much of defendant's testimony,[1] she did not recall the $20,000 unsecured loan or if she had paid off the unsecured loan.
Plaintiff filed a three-count complaint on December 3, 2019, alleging breach of contract, unjust enrichment, and requesting foreclosure of the property. Defendant answered, pleading affirmative defenses, including that the statutes of limitations barred plaintiff's claims. Defendant moved for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10), which the trial court granted, finding the statutory limitations period had already run for plaintiff's claims. This appeal followed.
Although defendant moved for summary disposition under MCR 2.116(C)(7), (C)(8), and (C)(10), the trial court's reasoning for granting summary disposition in favor of defendant was because the statute of limitations for each claim had run. Thus, we review the trial court's decision under MCR 2.116(C)(7). Williamstown Twp v Hudson, 311 Mich.App. 276, 288; 874 N.W.2d 419 (2015) ().
"Pursuant to MCR 2.116(C)(7), a party may move to dismiss a claim on the ground that the claim is barred by the applicable statute of limitations." Frank v Linkner, 500 Mich. 133, 140; 894 N.W.2d 574 (2017). Whether a cause of action is barred by the statute of limitations is a question of law, which is reviewed de novo. Id. "When it grants a motion under MCR 2.116(C)(7), a trial court should examine all documentary evidence submitted by the parties, accept all well-pleaded allegations as true, and construe all evidence and pleadings in the light most favorable to the nonmoving party." Clay v Doe, 311 Mich.App. 359, 362; 876 N.W.2d 248 (2015) (quotation marks and citation omitted).
Plaintiff cites two separate statutes of limitations on appeal. First, the statute of limitations for actions on a promissory note is MCL 440.3118, which states:
(1) Except as provided in subsection (5), an action to enforce the obligation of a party to pay a note payable at a definite time must be commenced within 6 years after the due date or dates stated in the note or, if a due date is accelerated, within 6 years after the accelerated due date.
Second, the statute of limitations to foreclose a mortgage is MCL 600.5803, which states, in relevant part:
No person shall bring or maintain any action or proceeding to foreclose a mortgage on real estate unless he commences the action or proceeding within 15 years after the mortgage becomes due or within 15 years after the last payment was made on the mortgage.
Both the mortgage and note provided that monthly payments would begin on June 21, 1990, and the entire balance of the mortgage would be due May 21, 1995. Assuming, as plaintiff has consistently stated in discovery, no payments were made by defendant on the mortgage note, the limitations period for the promissory note began on May 21, 1995, and would end six years after the mortgage's due date, May 21, 2001. Assuming the same, the limitations period applicable to foreclosure of the mortgage began on May 21, 1995, and would end 15 years after the due date, or May 21, 2010.
Plaintiff argues that knowing whether a payment was made, and when, is crucial in determining the limitations period for a foreclosure action. Thus, plaintiff argues, the trial court erred when it determined the statute of limitations barred plaintiff's claim because the trial court necessarily had to resolve a question of fact to reach this conclusion. Plaintiff points to defendant's denial of plaintiff's assertion that no payment was made on the $60,000 mortgage, arguing there is a question of fact on whether any payment was made.
Plaintiff, however, consistently states in her affidavit and pleadings that she never received any payment on the $60,000 mortgage, and consistently stated that the $30,000 payment received from defendant was for the separate, unsecured loan. Accepting plaintiff's well-pleaded allegations as true, which this Court is required to do in reviewing a motion for summary disposition under MCR 2.116(C)(7), and the affidavit signed by plaintiff, the trial court did not err in concluding that no payment was made on the mortgage, and finding without more that the statutory limitations period barred plaintiff's claims. McLean v Dearborn, 302 Mich.App. 68, 7273; 836 N.W.2d 916 (2013).[2] This conclusion does not, however, resolve the matter. For what also comes into play is the letter signed by defendant, which reaffirmed the existing debt, which plaintiff argues started a new statutory limitations period. The June 28, 2000, letter was signed prior to the expiration of the statute of limitations running on any claims, a point plaintiff's counsel made during arguments before this Court. Thus, MCL 600.5866[3], which governs revival of a claim, is inapplicable.
Nonetheless, the common law supports plaintiff's argument. As recognized in a leading treatise on the common law of contracts, a new promise to pay an existing debt that is not barred by a limitations period is supported by consideration and restarts the limitations period:
If a debtor makes a new promise to the creditor to pay the existing debt (no bar having yet arisen), this promise is enforceable, because it is sufficiently supported by the existing legal duty of the promisor. This has been previously discussed in prior § 211 of this treatise. In such a case the creditor's remedy on the new promise is not barred by statutory limitation until the lapse of the full period counting from the time of breach of this new promise. Such a promise extends the time for enforcement. [3 Corbin, Contracts (rev ed), § 9.5, p 255]
Case law applying the common-law adheres to this rule. See, e.g., U.S. v Gardner, 528 F.2d 715, 719 (CA 6, 1976); US v Upper Valley Clinic Hosp, Inc, 615 F.2d 302, 306 (CA 5, 1980) (); Bourisk v Amalfitano, 379 A.2d 149, 152 (Me, 1977).
The question, then, is whether the June 2000 agreement acknowledged the existing debt. "[N]o set form of words i[s] necessary to constitute a sufficient acknowledgment of indebtedness." In re Booth's Estate, 326 Mich. 337, 343; 40 N.W.2d 176 (1949). In In re Booth's Estate, the Court considered whether the decedent's signature on a document constituted "a sufficient acknowledgement" of indebtedness "to remove the bar of the statute of limitations." Id. The letter asked the decedent to "certify" the indebtedness by signing below the statement "[c]ertified to be correct." Id. at 341. The Supreme Court found his acknowledgment raised "a presumption of an implied promise to pay the obligations." Id. at 344.
Here there was no genuine issue of material fact that the June 28, 2000, letter renewed the debt. The letter clearly states that defendant endorsed the existing debt by signing below the statement: "I reaffirm the debt mentioned above still exists and I acknowledge the fact that the interest continues to accrue on this debt." Equally important is defen...
To continue reading
Request your trial