|
|
ILLEGAL
STATUTORY PROCEDURE ARGUMENT
[MORTGAGE CO] / [ASSIGNEE’S NAME], has violated the statutory foreclosure procedure as outlined in the REVISED JUDICATURE ACT OF 1961 (EXCERPT), Act 236 of 1961, Chapter 32, FORECLOSURE OF MORTGAGES BY ADVERTISEMENT, Rule MCL 600.3220, Sale; adjournment; notice; posting; publication; by requesting a sheriff sale adjournment, in complete disregard to the statutory procedure. (See violation #1 & 2 below.)
Further, the [COUNTY] County Sheriff has also violated the aforementioned procedure, by granting the requested sheriff sale adjournments, in complete disregard to, or the misunderstanding of, the statutory procedure. (See violation #3 below.)
IMPROPER SHERIFF SALE ADJOURNMENT ARGUMENT
Regardless of how the sheriff sales were adjourned, the adjournments were in violation of the statutory foreclosure procedure as outlined in the REVISED JUDICATURE ACT OF 1961 (EXCERPT), Act 236 of 1961, Chapter 32, FORECLOSURE OF MORTGAGES BY ADVERTISEMENT and in violation of MCL 600.3220.
FORECLOSURE VIOLATIONS
VIOLATION #1
[MORTGAGE CO] / [ASSIGNEE’S NAME] requested a sheriff sale adjournment in violation of the statutory foreclosure procedure as outlined in the REVISED JUDICATURE ACT OF 1961 (EXCERPT), Act 236 of 1961, Chapter 32, FORECLOSURE OF MORTGAGES BY ADVERTISEMENT, as no laws or statutes exist allowing a plaintiff to directly request the sheriff to adjourn a sheriff sale.
If MCL 600.3220 is a basis for the plaintiff to request sheriff sale adjournments, then the plaintiff has misinterpreted MCL 600.3220.
VIOLATION #2
[MORTGAGE CO] / [ASSIGNEE’S NAME] requested multiple and/or repeated and/or successive sheriff sale adjournments in violation of the REVISED JUDICATURE ACT OF 1961 (EXCERPT), Act 236 of 1961, Chapter 32, FORECLOSURE OF MORTGAGES BY ADVERTISEMENT, as no laws or statutes exist allowing a plaintiff to directly request the sheriff to adjourn a sheriff sale.
If MCL 600.3220 is a basis for the plaintiff to request sheriff sale adjournments, then the plaintiff has misinterpreted MCL 600.3220.
VIOLATION #3
The [COUNTY] County Sheriff granted several sheriff sale adjournments in violation of Title 12 U.S.C. § 3760(c)(1) and MCL 600.6053(2).
FURTHER ARGUMENT REGARDING VIOLATION #1
[MORTGAGE CO] / [ASSIGNEE’S NAME] requested a sheriff sale adjournment in violation of the statutory foreclosure procedure as outlined in the REVISED JUDICATURE ACT OF 1961 (EXCERPT), Act 236 of 1961, Chapter 32, FORECLOSURE OF MORTGAGES BY ADVERTISEMENT, as no laws or statutes exist allowing a plaintiff to directly request the sheriff to adjourn a sheriff sale.
If MCL 600.3220 is a basis for the plaintiff to request sheriff sale adjournments, then the plaintiff has misinterpreted MCL 600.3220.
The following is controlling information regarding the correct interpretation of MCL 600.3220.
MCL 600.3220 states:
Such sale may be adjourned from time to time, by the sheriff or other officer or person appointed to make such sale at the request of the party in whose name the notice of sale is published by posting a notice of such adjournment before or at the time of and at the place where said sale is to be made, and if any adjournment be for more than 1 week at one time, the notice thereof, appended to the original notice of sale, shall also be published in the newspaper in which the original notice was published, the first publication to be within 10 days of the date from which the sale was adjourned and thereafter once in each full secular week during the time for which such sale shall be adjourned. No oral announcement of any adjournment shall be necessary.
The specific point in case; “Such sale may be adjourned ……. at the request of the party in whose name the notice of sale is published……”
INTENTION OF STATUTE
It is clear that provision MCL 600.3220 is intended for the party who did not schedule the sheriff sale and is NOT intended for the foreclosing party (often referred to as the mortgagee).
The intent of the provision is to allow the opposing party, the party who did not schedule the sheriff sale, a means of adjourning the scheduled sheriff sale to a later date.
There are many reasons an opposing party may need to adjourn a sheriff sale, i.e. a conflict between the scheduled date of the sheriff sale and his schedule. He may have had a pre-paid vacation planned, or he may be scheduled to be in court for another matter, or he may have bypass surgery scheduled on the same day as the scheduled sheriff sale.
Since so many different foreclosure commissioners conduct sheriff sales, the enactment of a statute is a good way to insure all of the different commissioners have easy access to this right of the homeowner, in order to protect and enforce a homeowner’s rights regarding sheriff sales. However, in this instance, the misinterpretation of statute MCL 600.3220 has done just the opposite. It has taken away homeowners rights to request an adjournment. The [COUNTY] County Sheriff will not even allow a homeowner to request a sheriff sale adjournment. The sheriff’s office said “only mortgagees or attorneys for mortgagees can request a sheriff sale adjournment.” This is completely opposite from the intention of MCL 600.3220.
CONTROLLING STATUTE
The statute is not merely procedural but in fact protects valuable substantive rights to property and due process of law.
MCL 600.3220 states: (in part) “Such sale may be adjourned ……..at the request of the party in whose name the notice of sale is published, ….” In different situations, “the party in whose name the notice of sale is published” could possibly be referred to as any of the following:
1. defendant (if legal proceedings are being taken against said party); or,
2. plaintiff (if said party is taking legal proceedings against the mortgagee); or,
3. mortgagor; or,
4. possibly a trustee; or,
5. the party in whose name the deed is in; or,
6. the party who is at risk of loss of ownership in the property; or,
7. the party who did not schedule the sheriff sale; or,
8. possibly others not thought of.
Error in compliance with these procedures does not constitute and cannot constitute “harmless error” in eviction proceedings because errors in these matters impinge upon SUBSTANTIVE rights to the use and enjoyment of private property.
However, “the party in whose name the notice of sale is published” is never the foreclosing party, the mortgagee, the party who scheduled the sheriff sale.
CONTROLLING CASE-LAW & PRECEDENT
The correct interpretation of rule MCL 600.3220 can be seen in GOTTLIEB v. MCARDLE. In this case, it is clear HUD understood that MCL 600.3220 was intended for McArdle, who is “the party in whose name the notice of sale is published”.
“On July 15, 1983, HUD sent a letter to B & L, advising McArdle that the sale should be adjourned for one week.“ …. “HUD informed McArdle of the July 15, 1983, letter, and advised her to adjourn the sale.” GOTTLIEB v. MCARDLE, 580 F. Supp. 1523 (E.D.Mich. 03/2/1984)
HUD realized that the defendant, McArdle, has the legal right to adjourn the sale in concurrence with MCL 600.3220. If MCL 600.3220 was intended for the mortgagee, then HUD could have adjourned the sheriff sale.
INTERPRETATION OF STATUTE
As in all cases of statutory interpretation, the court "must ascertain the legislative intent. In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failing to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose.” (Morris v. County of Marin, supra, 18 Cal.3d at pp. 909-910.)" (Id. at p. 910, fn. omitted.)
“In considering statutory questions our review is to correct errors of law. State V. Stanford, 474 N.W.2d 573, 575 (Iowa 1991).
“To construe a statute, we examine both the language used and the purpose for which the legislation was enacted.” State v. Edman, 444 N.W.2d 103, 106 (Iowa App. 1989).
“A statute should be given a sensible, practical, workable and logical construction. Id.” WILKINS v. STATE, 522 N.W.2d 822 (Iowa 10/19/1994)
RELATED MICHIGAN RULE & STATUTE
STATE HOUSING DEVELOPMENT AUTHORITY ACT OF 1966, Act 346 of 1966
125.1449e Adjournment of sale; request; notice; oral announcement unnecessary.
Sec. 49e. The sale may be adjourned from time to time, by the sheriff or other officer or person appointed to make such sale at the request of the party in whose name the notice of sale is published by posting a notice of such adjournment before or at the time of and at the place where the sale is to be made, and if any adjournment be for more than 1 week, at 1 time, the notice of the adjournment, appended to the original notice of sale, shall also be published in the newspaper in which the original notice was published, the first publication to be within 10 days of the date from which the sale was adjourned and thereafter once in each full calendar week during the time for which such sale shall be adjourned. No oral announcement of any adjournment shall be necessary.
History: Add. 1981, Act 173, Imd. Eff. Dec. 10, 1981.
SIMILAR RULES IN OTHER STATES
TENNESSEE
Tennessee law clearly mentions the “borrower” as the party being able to adjourn sheriff sales.
Because this is a non-judicial remedy there are very stringent notice requirements and the legal documents are required to contain the power of sale language in order to use this type of foreclosure method. …..This process may be delayed if the borrower …… seeks delays and adjournments of sales, or files for bankruptcy”. http://www.foreclosure.com/statelaw_TN.html
NEY JERSEY
Rights of Defendants
“Prior to the sale, the Sheriff has the discretionary right to make two adjournments of the sale for the defendant (at the defendants request),….”
http://www.camdencounty.com/sheriff/Sales/foreclos.htm
Civil Process – Morris County NJ - "The defendant may also request an adjournment at any time prior to the sale". http://www.mcsheriff.org/main/civil_sheriffsales/
MORTGAGOR DID NOT REQUEST SHERIFF SALE ADJOURNMENT
Evidence can be found on sheriff deed recorded in the county recorders office. The Sheriff should be able to confirm that the adjournments were requested by the mortgagees. The defendants (mortgagors) did not request a sheriff sale adjournment.
FURTHER ARGUMENT REGARDING VIOLATION #1 & #2
[MORTGAGE CO] / [ASSIGNEE’S NAME] requested a sheriff sale adjournment in violation of the statutory foreclosure procedure as outlined in the REVISED JUDICATURE ACT OF 1961 (EXCERPT), Act 236 of 1961, Chapter 32, FORECLOSURE OF MORTGAGES BY ADVERTISEMENT, as no laws or statutes exist allowing a plaintiff to directly request the sheriff for multiple, or successive sheriff sale adjournments.
If MCL 600.3220 is a basis for the plaintiff to request sheriff sale adjournments, then the plaintiff has misinterpreted MCL 600.3220. As discussed in VIOLATION #1, MCL 600.3220 is not intended for the mortgagee. Therefore MCL 600.3220 offers no basis for a mortgagee to request multiple or successive sheriff sale adjournments.
FURTHER ARGUMENT REGARDING VIOLATION #3
The [COUNTY] County Sheriff granted several sheriff sale adjournments in violation of (A) Title 12 U.S.C. § 3760(c)(1) and (B) MCL 600.6053(2).
(A) Title 12 U.S.C. § 3760(c)(1):
Upon assignment as foreclosure commissioner from the Secretary of Housing and Urban Development, a sheriff’s authority and responsibility is stated in Title 12 U.S.C. § 3760(c)(1), which states:
“(1) General authority
The foreclosure commissioner may, before or at the time of the foreclosure sale, adjourn or cancel the foreclosure sale if the commissioner determines, in the commissioner’s discretion, that—“
(A) circumstances are not conducive to a sale which is fair to the mortgagor and the Secretary; or”
(B) additional time is necessary to determine whether the security property should be withdrawn from foreclosure, as provided in section 3759 of this title.”
The [COUNTY] County Sheriff granted sheriff sale adjournment requests from the mortgagee, [MORTGAGE CO] / [ASSIGNEE’S NAME], when neither condition of Title 12 U.S.C. § 3760(c)(1)(A) or (B) existed.
(B) MCL 600.6053(2) Execution; time, place, adjournment.
(2) The sheriff or other officer making the sale has the power to adjourn the sale for reasonable cause and for a reasonable period.
History: 1961, Act 236, Eff. Jan. 1, 1963
SHERIFF’S AUTHORITY TO GRANT SHERIFF SALE ADJOURNMENT
The sheriff has the discretion of granting or denying a request for a sheriff sale adjournment. If a sheriff sale adjournment request can show good cause, by statute, the Sheriff has the discretionary right to grant, or reject a request for an adjournment.
In addition, sheriff sales should only be granted by the sheriff when shown good cause by the requestor, taking into account what is best for all parties involved or when circumstances are not conducive to a sale which is fair and protects the rights of the parties involved.
The commissioner is further empowered to make such rules and regulations for the conduct and advertisement of such sale or special sale as in the commissioner's opinion will serve to prevent deception and to protect the public. [Acts 1953, ch. 201, § 3 (Williams, § 3496.3); T.C.A. (orig. ed.), § 6-722.]
FURTHER ARGUMENT REGARDING ADJOURNMENT
A mortgagee may possibly be able request a sheriff sale adjournment by seeking a court order. And, the sheriff may grant an adjournment at his discretion, if there is good cause and it is in the best interest of all parties involved.
Title 12 U.S.C. § 3760(c)(1).
The commissioner of the foreclosure sale, often a sheriff, is part of the checks and balances of the foreclosure process as a matter of substantive due process. The commissioner of the foreclosure sale has the responsibility to use his discretion when granting or not granting a sheriff sale adjournment request in order to insure the legal rights of all party’s of interest. However, when the sheriff lacks in his responsibilities of using his discretion on whether to grant a sheriff sale adjournment, and when he is granting them on a weekly basis on all or almost all sheriff sales, and when he is doing so without regard to the homeowners legal rights to redeem their property (as is the current situation in [COUNTY] County), the statutory foreclosure process is seriously impaired and / or flawed.
If MCL 600.3220 is the plaintiffs basis for requesting sheriff sale adjournments, it is invalid. MCL 600.3220 does not address “mortgagees” requesting adjournments. It only addresses the right of the opposing party, “the party in whose name the notice of sale is published”, to request a sheriff sale adjournment.
THIS IS ANOTHER MISINTERPRETATION OF MCL 600.3220
Another portion of MCL 600.3220 is also being misunderstood by many attorneys for mortgagees. MCL 600.3220 states (in part): “Such sale may be adjourned from time to time…”
The definition of “From time to time” is “occasionally”.
Per Princeton University on the Web, the definition of “from time to time” is: “occasionally: now and then or here and there;…”
Many attorneys for mortgagees misinterpret this, firstly, as a provision intended for a mortgagee, and secondly, that the mortgagee can request repeated, or successive sheriff sale adjournments. There is absolutely no basis for this claim.
The intent of the “From time to time” phrase of provision MCL 600.3220 is to restrict “the party in whose name the notice of sale is published” from requesting multiple and/or repeated and/or successive sheriff sale adjournments. This portion of the statute is to protect the mortgagee from the opposing party requesting many or multiple sheriff sale adjournments without good cause or for no apparent reason except to delay the proceedings.
THE FORECLOSURE IS VOID
Non-conformance to statutory procedure is a voiding violation. The foreclosure process, the sheriff sale and the transference of the property deed are void. In Isern v. Summerfield, the court held that the sale of the deed was void due to errors in procedure. “Given the requirement of strict compliance with statutory procedures for issuing a tax deed, and without passing judgment on the significance of other errors and omissions cited by Isern but not discussed herein, we hold that the errors and omissions discussed above void the subject tax deed issued by Missoula County to Dace Hawkinson and Karen Summerfield. We therefore reverse the summary judgment entered by the District Court. This case is remanded for further proceedings consistent with this Opinion.” Isern v. Summerfield, 956 P.2d 28, 1998 MT 45 (Mont. 03/04/1998) (emphasis added)
In Guardian Depositors Corp of Detroit v Keller, “If the lender failed to follow any of the foreclosure by advertisement statute’s positive requirements, the court cannot ignore such violations”; Guardian Depositors Corp of Detroit v Keller, 282 NW 194, 286 Mich 403 (1938).
- In Cheff v Edwards, “Foreclosure by advertisement is controlled by statute. A mortgagee who uses this method of foreclosure must follow the statutory requirements found in MCL 600.3201; MSA 27A.3201 concerning the initial mortgage and procedural requirements, the publication and posting requirements found in MCL 600.3208; MSA 27A.3208, and the sales procedure requirements found in MCL 600.3216; MSA 27A.3216. Cheff v Edwards, 203 Mich App 557, 560; 513 NW2d 439 (1994)
DENIAL OF RIGHTS FOR DUE PROCESS OF LAW
The violation of the statutory procedure in the aforementioned Rules of Civil Procedure, in conjunction with a denial of due process of law, should be considered a voiding violation. In a non-judicial foreclosure by advertisement, the procedure regarding the foreclosure and sheriff sale are omnipotent in insuring the rights of the homeowner(s), (or any other party with interest).
Since it is often almost impossible to redeem the property working directly with an uncooperative mortgagee, rejecting payments, etc., the sheriff sale is often the only opportunity to redeem the property, before the courts are involved. If homeowners are not allowed a chance to redeem their property because the mortgagee made changes to the statutory procedure, it is a certain denial of rights of due process of law.
|
|