appellants' reply brief

STATE OF MICHIGANIN THE CIRCUIT COURT OF THE COUNTY OF WAYNE

____________

NATIONAL CITY BANK,Plaintiff-Appellee,

vs. Hon. Robert L .Ziolkowski

Case No. 09-007640 AVTHELMA BELLE, and ANITA BELLE, 36th Dist. Ct. Case # 08-311916 LT

Defendants-Appellants.__________________________________/

APPELLANTS’ REPLY BRIEF

ORAL ARGUMENTS SCHEDULED Thursday, June 24, 2010 at 2:00 p.m.

ARTHUR C. KIRKLAND, JR. MICHELLE K. CLARK (P55841)Attorney at Law (P27551) TROTT & TROTT, P.C.Attorney for Defendants/Appellants Attorney for Plaintiff/AppelleePost Office Box 35676 31440 Northwestern Hwy., Ste. 200Detroit, Michigan 48235-0676 Farmington Hills, MI 48334(313) 918-3554 (248) 723-6476

June 18, 2010

of 20

Table of Contents

Table of Authorities.........................................................................................................................3Response to Appellee’s Statement of Facts.....................................................................................4Response to Appellee’s Arguments.................................................................................................8Conclusion.....................................................................................................................................15Proof of Service.............................................................................................................................16Exhibits..........................................................................................................................................17

of 20

Table of Authorities

CasesCork v Applebee’s of Michigan, Inc, 239 Mich App 311; 608 NW2d 62 (2000).........................16Department of Natural Resources v Holloway Construction Co, 191 Mich App 704, 478 NW2d

677 (1991)..................................................................................................................................17Faulkner v Flowers, 206 Mich App 562; 522 NW2d 700 (1994).................................................17McCleese v Todd, 232 Mich App 623, 627; 591 NW2d 375 (1998).............................................16PHH Mortgage Corporation v. Cude, case number 09-02-2565 LT in the 23rd District Court of

Michigan....................................................................................................................................17Walker v Johnson & Johnson Vision Products, Inc, 217 Mich App 705; 552 NW2d 679 (1996)17

Statutes42 U.S.C. §1983...............................................................................................................................6

RulesMCR 2.116(C)(4)..........................................................................................................................16MCR 2.116(D)(3)..........................................................................................................................16MCR 2.612..............................................................................................................................12, 15MCR 2.612(C)(2)..........................................................................................................................12MCR 4.201(B)(1)(e)......................................................................................................................17MRPC 1.6......................................................................................................................................11MRPC Rule 3.3..............................................................................................................................10

of 20

Response to Appellee’s Statement of Facts

A. Change of Appellee’s Individual Attorney

Although the law firm of Trott & Trott P.C. represents the Appellee, National City Bank,

heretofore, the firm’s individual attorney that handled this case, Gregory MacKay, P62030, is no

longer with the firm. The Michigan Bar lists that Gregory MacKay is now in a self-named

professional limited liability corporation at a post office box in Northville, Michigan. (A copy of

the Michigan Bar Directory listing for Gregory MacKay is annexed hereto as Exhibit A.)

It is unclear when Gregory MacKay voluntarily or involuntarily left Trott & Trott.

Appellants were not notified of his departure prior to the time their brief was served upon

Appellees. However, Appellants have personal knowledge of Gregory MacKay still working for

the firm as of January 4, 2010 because Appellant Anita Belle personally served Appellants’

motion that contained the facts and precedents regarding the invalid sheriff deed and briefly met

with Gregory MacKay at the Trott & Trott offices in Farmington in order to hand-deliver the

motion directly to him. This point about service of the motion is relevant because Appellee

failed to timely respond to Appellant’s January 4, 2010 Motion for Relief from Judgment on the

basis of an invalid sheriff deed, thus rendering the facts of the invalid sheriff deed undisputed in

the lower court. (A copy of the January 4, 2010 Motion, containing the Certificate of Service

upon Gregory MacKay, is annexed hereto as Exhibit B. For purposes of brevity, this motion

and certificate of service are attached without their accompanying exhibits.)

of 20

B. Mortgage, Foreclosure, and Litigation History

It is true that Appellants have vigorously defended their homeownership rights.

However, the new Trott & Trott attorney’s recitation of so-called facts neglects the relevant

nuances of this case.

Along with other allegations, the Appellants raised mortgage fraud, predatory lending,

and noncompliance with the federal RESPA and TILA laws in their June 20, 2007 federal

civil complaint. There was no motion for stay at the filing of the original federal complaint. The

sheriff sale, published to take place on June 20, 2007, was adjourned until August 29, 2007. No

evidence was submitted by the Appellee as an exhibit to the lower court that Appellee adjourned

the June 20, 2007 sheriff sale from week to week until it was conducted more than two months

later on August 29, 2007. (The transcript of the March 23, 2009 proceeding is annexed hereto as

Exhibit C. Of note is that no exhibits were marked or received in evidence [page 2 of the

transcript.] All that was proffered as proof of week-to-week adjournments of the sheriff sale was

the testimony of Attorney Gregory MacKay on page 12 of the transcript.) Also of note is that, on

February 10, 2009, Appellants moved for sanctions against Attorney Gregory MacKay for

making misrepresentations to the lower court. On page 28-29 of the March 23, 2009 transcript,

Appellants’ counsel argued that the Appellee proffered no documentation of the week to week

adjournments of the sheriff sale and that the Appellants were prejudiced by not being informed

of the week to week adjournments. Nevertheless, along with Appellants’ motion to dismiss, the

lower court denied Appellants’ motion for sanctions.

Appellee also neglects to mention that the 2007 federal civil case was dismissed without

prejudice on March 31, 2008, more than a month after the expiration of the six-month

redemption period. Appellants immediately re-filed the federal case on April 4, 2008. Appellee

of 20

moved to dismiss the re-filed federal case on the grounds of res judicata. Noting that the 2007

federal case was dismissed without prejudice, Federal Judge Julian A. Cook handily denied

Appellee’s Motion to Dismiss. The 2008 federal civil case, with a motion for an amended

complaint that alleges 42 U.S.C. §1983 violations, remains pending to this day. The Appellants

represent themselves in the federal case. The crux of the proposed amended complaint in the

federal case is that, by virtue of invalid sheriff deeds issued in 2007 and 2002, Appellant Thelma

Belle remains the true owner of the disputed property. Consequently, those purporting to hold

title to the disputed property since 2002 did so with a cloud on their title. Thus, when Appellant

Thelma Belle allegedly repurchased the property in 2004, she purchased title from a seller

who did not have clear title. Because the 2004 transaction is insured by title insurance, the

federal case alleges that any monies owed pursuant to a mortgage should be collected from

the title insurer for failure to convey clear title. The federal case further alleges that the

invalid 2002 sheriff sale was only recently discovered due to fraudulent concealment. Of

note is that, if the federal case is somehow dismissed without prejudice, Appellants may still

have state circuit court claims regarding quiet title. Such is why Appellants filed a quiet title

action in 2009 before this court in case number 09-003144-CH, yet such action was dismissed

without prejudice on May 20, 2009 for non-service to permit the federal case to proceed.

Appellee filed its complaint in the 36th District Court for termination of tenancy on April

11, 2008. In its complaint, Appellee stated that:

“The owner of the property, described in the attached Sheriff’s Deed, recorded on September 11, 2007 in Liber 46649 on Page 1024 in Wayne County Records is the Plaintiff as referenced above.”

The Defendants/Appellants “are wrongfully holding over after the expiration of the redemption period following a mortgage foreclosure sale” and

“There is no other pending or resolved civil action arising out of the same transaction or occurrence alleged in this complaint.”

of 20

(A copy of Appellee’s complaint is annexed hereto as Exhibit D.)

Appellee’s statement regarding being the owner of the property by virtue of the sheriff

deed is untrue because the sheriff deed is invalid. Furthermore, the Appellee’s statement

regarding there being no other civil action pending is untrue given that the federal case was re-

filed on April 4, 2008 and Appellee’s complaint was filed on April 11, 2008. At the April 22,

2008 hearing, Appellants informed the lower court of the federal case and requested additional

time with which to pursue a stay from the federal court. The lower court granted an adjournment

and Appellants made an emergency motion for a stay to the federal court. When that stay was

denied, Appellants pursued an interlocutory appeal to the Sixth Circuit Court of Appeals.

Meanwhile, Appellants also filed for Chapter 13 bankruptcy, thereby obtaining an automatic

federal stay in time for the next hearing in the 36th District Court. The Appellants then permitted

the federal interlocutory appeal to be dismissed. The lower state court proceedings were

administratively closed during the pendency of the bankruptcy. Contrary to Appellee’s recitation

of the facts, Appellant Thelma Belle, age 82 years, was unrepresented during the bankruptcies

and the corresponding adversarial hearing because, at that time, her current counsel was not a

member of the Federal Bar.

The case at bar was re-opened in 2009 and has since undergone all the makings of a

courtroom drama, replete with motions to disqualify the lower court judge for bias, sabotage of

the transcripts, and a 9-month delay in correcting an erroneous court order. Nevertheless, the

fact remains that when the Appellants moved for relief from the Judgment of Possession on

January 4, 2010, presenting facts and precedent demonstrating the invalidity of Appellee’s

sheriff deed, the Appellee did not respond to this motion in the lower court. Hence, the facts

establishing the invalidity of the sheriff deed at issue in this appeal are undisputed. Given the

of 20

fact that the sheriff deed is invalid, it follows that the Judgment of Possession based upon the

sheriff deed must be set aside.

Response to Appellee’s Arguments

A. The District Court Properly Entered a Judgment of Possession in Favor of

Appellee.

The trial court did not properly enter a Judgment of Possession and erred in denying

Appellants’ motion to dismiss, because Appellee’s counsel made misrepresentations both in open

court and in various court documents. The misrepresentations that the Appellants were aware of,

prior to the March 23, 2009 Judgment of Possession, were listed in Appellants’ motions for

sanctions that was denied by the court. The misrepresentations include:

a. Appellee’s counsel testified that the sheriff sale was adjourned week to week, but

could not proffer documentary evidence of adjourning the sheriff sale week to

week.

b. Appellee’s counsel falsely alleged that Appellants’ 2007 federal case was

dismissed with prejudice, when, in fact, it was dismissed without prejudice.

c. Appellee’s counsel verbally informed the court that there was no settlement

agreement, even though a timely, written agreement to the contrary existed. Of

note is that the lower court adjourned the March 10, 2009 hearing in order to

facilitate settlement negotiation. The reasons for the adjournment are on the

record in the March 10, 2009 transcript. However, despite a timely, written

settlement agreement (offer and acceptance), Appellee’s attorney (at the March

of 20

23, 2009 hearing) unilaterally attempted to change, and misrepresented, the terms

of the written agreement, and verbally misrepresented to the court that a

settlement did not exist. The lower court ignored the written agreement that

contradicted the Appellee and proceeded to render a Judgment of Possession in

favor of the Appellee.

The misrepresentations discovered after March 23, 2009 include:

Appellee falsely claims that the corporate assignment was valid, even though the

person signing the assignment and purporting to be a vice president at the

originating mortgagee, First Franklin, had elsewhere signed assignments as a vice

president of MERS. Of note is that the mortgage, which Appellee submitted as

Exhibit A in its brief, makes no mention of (and grants no power to) MERS as a

nominee.

Appellee falsely claims title to the disputed property by virtue of a sheriff deed,

even though the auctioneer signing the sheriff deed is not a deputy sheriff or a

properly-appointed special deputy (and therefore has no authority under Michigan

statutes to conduct sheriff sales or execute sheriff deeds).

If Appellee insists that the Appellants raise this torrid history, rather than “abandon these

arguments on their appeal”, as Appellee stated, then Appellants could move to supplement their

brief. It should be noted, however, that because Appellees have made previous

misrepresentations to the court, Appellants should not be prejudiced for discovering after March

23, 2009 that the Appellee also misrepresented that the sheriff deed gives the Appellee title to the

disputed property: The Appellee’s law firm prepared the sheriff deed and the affidavit of the

of 20

person conducting the sheriff sale, an affidavit to which the auctioneer swore he was a deputy

sheriff. (A copy of the sheriff deed is annexed hereto as Exhibit E.) The affidavit which the

Appellee’s law firm prepared contained at least one glaring misrepresentation, namely, the false

representation that the auctioneer was a deputy sheriff. The truth, as evidenced by the Wayne

County Clerk’s appointment of the auctioneer, is that the auctioneer was not properly appointed

as a special deputy, and indeed, had no appointment at all on the date of the sheriff sale and

deed execution. (A copy of the Wayne County Clerk’s appointment for the auctioneer, Sterling

Harrison, is annexed hereto as Exhibit F.) The Appellee did not disclose this relevant

information to the trial court or the Appellant, hence the Appellee did not thoroughly brief the

trial court regarding its case for possession but rather engaged in fraud upon the court and

withheld relevant information in order to obtain its Judgment of Possession. Indeed, in its

Appellee brief, the party states “Appellee will not address the merits of those [sheriff deed]

arguments without further direction from this Court.” Thus, the Appellee continues to evade the

issue of whether its sheriff deed is valid or whether its attorneys misrepresented that the

auctioneer was a deputy sheriff. It is worthy to note that Appellee’s fraud upon the court

commenced with the summons and complaint initiating the district court summary proceeding

for possession, and continues to this day before this appellate court. The Appellee’s refusal to

address the dispositive issues before the court in this appeal are at Appellee’s discretion and

peril.

According to the Michigan Rules of Professional Conduct, MRPC Rule 3.3, Appellee’s

counsel was not candid with the lower court.

Rule 3.3 Candor Toward the Tribunal.(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

of 20

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to a tribunal controlling legal authority in the jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts that are known to the lawyer and that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

As stated above, an attorney should not knowingly make a false statement of material fact

or law to a tribunal even if compliance with this ethical rule requires disclosure of confidential

information otherwise protected by Rule 1.6 of the Michigan Rules of Professional Conduct,

MRPC 1.6, states:

Rule: 1.6 Confidentiality of Information

(a) "Confidence" refers to information protected by the client-lawyer privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:

(1) reveal a confidence or secret of a client;

(2) use a confidence or secret of a client to the disadvantage of the client; or

(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.

(c) A lawyer may reveal:

(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;

(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;

(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;

of 20

(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and

(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct.

(d) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by paragraph (c) through an employee.

Hence, Appellants argue that the Appellee’s law firm violated and continues to violate its

duties pursuant to the Michigan Rules of Professional Conduct. As a result of this violation,

Appellee is committing a continuing fraud upon this Appellate Court by advocating that the

Appellee has an ownership interest in the disputed property despite the invalidity of the sheriff

deed and the Appellee law firm’s misrepresentations regarding the auctioneer’s status as a

deputy sheriff.

MCR 2.612(C)(2) permits motions for relief from judgment based upon fraud and

misrepresentation to be made within a year from the date of the judgment. MCR 2.612 states, as

follows:

Rule 2.612 Relief From Judgment or Order (A) Clerical Mistakes.

(1) Clerical mistakes in judgments, orders, or other parts of the record and errors arising from oversight or omission may be corrected by the court at any time on its own initiative or on motion of a party and after notice, if the court orders it.

(2) If a claim of appeal is filed or an appellate court grants leave to appeal, the trial court may correct errors as provided in MCR 7.208(A) and (C). (B) Defendant Not Personally Notified. A defendant over whom personal jurisdiction was necessary and acquired, but who did not in fact have knowledge of the pendency of the action, may enter an appearance within 1 year after final judgment, and if the defendant shows reason justifying relief from the judgment and innocent third persons will not be prejudiced, the court may relieve the defendant from the judgment, order, or proceedings for which personal jurisdiction was necessary, on payment of costs or on conditions the court deems just. (C) Grounds for Relief From Judgment.

(1) On motion and on just terms, the court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds:

(a) Mistake, inadvertence, surprise, or excusable neglect. (b) Newly discovered evidence which by due diligence could not have been

discovered in time to move for a new trial under MCR 2.611(B).

of 20

(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.

(d) The judgment is void. (e) The judgment has been satisfied, released, or discharged; a prior judgment on

which it is based has been reversed or otherwise vacated; or it is no longer equitable that the judgment should have prospective application.

(f) Any other reason justifying relief from the operation of the judgment. (2) The motion must be made within a reasonable time, and, for the grounds stated

in subrules (C)(1)(a), (b), and (c), within one year after the judgment, order, or proceeding was entered or taken. A motion under this subrule does not affect the finality of a judgment or suspend its operation.

(3) This subrule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding; to grant relief to a defendant not actually personally notified as provided in subrule (B); or to set aside a judgment for fraud on the court. [Emphasis added.]

The Judgment of Possession was entered on March 23, 2009 and the Appellants made

their Motion for Relief of Judgment, regarding the invalid sheriff deed, on January 4, 2010.

Clearly, Appellants’ motion was timely and before the March 23, 2010 deadline. One should

also note that, under MCR 2.612(C)(1)(d), the invalidity of the sheriff sale and deed render the

Judgment for Possession void; and as such, Appellant’s motion to set aside that Judgment is not

limited to one year after entry. Regardless of the date that Appellants raised the issue regarding

the misrepresentations contained in the sheriff deed, it remains true that Appellee’s

misrepresentations regarding its ownership of the disputed property, by virtue of the invalid

sheriff deed, occurred before the March 23, 2009 date for the Judgment of Possession. It

therefore follows that a Judgment of Possession in favor of the Appellee, based upon

misrepresentation and fraud upon the court by the Appellee, was not properly entered by the

lower court and should be set aside.

Moreover, even if Appellee’s misrepresentation of the auctioneer as a deputy sheriff was

previously unknown to Plaintiff/Appellee, by virtue of Appellants’ January 4, 2010 motion in the

district court, Appellee was placed on notice of this misrepresentation; thus, their continuing

of 20

misrepresentation of the auctioneer’s status became a knowing misrepresentation by Appellee’s

counsel and constitutes a continuing violation of the Michigan Rules of Professional Conduct,

and represents a continuing fraud upon this court.

B. The Circuit Court Lacks Jurisdiction to Review the February 2010 Order and

Opinion.

The Appellee offers no caselaw, statute, or court rule supporting its position that the

Circuit Court is deprived of jurisdiction. Moreover, the Appellee is barred from raising issues

defending the validity of the sheriff deed because the Appellee failed to raise such arguments

before the lower court. Appellee challenges that the Appellants’ appeal only addresses issues

raised in Appellants’ January 4, 2010 Motion for Relief from Judgment and that such issues

cannot be heard on a Claim of Appeal filed on April 1, 2009. Appellee’s argument on this point

is in error, because this appellate court has jurisdiction to hear this appeal, on the basis of the fact

that this appeal addresses the lower court’s lack of subject matter jurisdiction.

January 4, 2010 is the date that the Appellants filed their motion in district court based

upon their discovery that the sheriff deed had no validity; and, that Appellee’s law firm crafted

an affidavit that contained the misrepresentation that the auctioneer was a deputy sheriff when in

truth the auctioneer was not a deputy sheriff or a properly appointed special deputy sheriff.

Perhaps this is why Appellee’s counsel failed to respond to the motion in the lower court or in its

Appellee brief. Appellee’s law firm continues to neglect its ethical duty to disclose to this court

relevant information regarding the material fact as to whether its claim of title, by virtue of the

sheriff deed, is indeed valid. Appellee argues that Appellants and their counsel have

demonstrated a lack of understanding or unwillingness to follow procedural requirements in

of 20

every court in which they have litigated. Appellants can likewise argue that Appellees have

demonstrated unethical behavior and fraud upon every court in which they have litigated, due to

the fact that Appellee misrepresented that the auctioneer was a deputy sheriff, and that such

misrepresentation renders Appellee’s sheriff deed invalid.

The February 26, 2010 Order reinstated this appeal pursuant to nine months of

Appellants’ persistent, post-judgment motions. Appellee did not object, move for

reconsideration, or appeal the February 26, 2010 Order. Given that the February 26, 2010 Order

reinstated the appeal, it would be a waste of Appellant’s limited financial resources and against

the interests of judicial economy to require that Appellants file an additional Claim of Appeal

rather than consolidate all issues into a single appeal. Appellee offers no caselaw supporting its

position that the appeal must be dismissed for failure to address issues that occurred prior to the

April 1, 2009 Claim of Appeal. Without reference to any legal authority, Appellee proposes the

confusing scenario that indigent Appellant undergo the hardship of simultaneously paying

escrow and paying counsel and drafting a brief addressing issues occurring prior to April 1,

2009, while at the same time filing and paying a second appeal fee and having a second escrow

imposed and paying additional attorney fees to write a second brief for issues occurring up to

February 26, 2010 in order for Appellee to write two responding briefs and the appellate court to

issue two different decisions which may be further appealed. The February 26, 2009 Order of

the district court granted reinstatement of this appeal, which permits consolidation of all issues

that Appellants wish to appeal.

Regarding grounds for relief from judgment, MCR 2.612(C)(3) states: “This subrule

does not limit the power of a court to entertain an independent action to relieve a party from a

judgment, order, or proceeding; to grant relief to a defendant not actually personally notified as

of 20

provided in subrule (B); or to set aside a judgment for fraud on the court.” [Emphasis

added.] Appellants therefore argue that this court rule permits any court, including an appellate

court, to set aside a judgment for fraud upon the court in order to achieve substantial justice.

Thankfully, this appellate court need not navigate the intricacies and eccentricities of

Appellee’s specious arguments regarding pre and post April 1, 2009 issues because it is clear and

undisputed law in this state that the fact of lack of subject matter jurisdiction may be raised at

any time, [MCR 2.116(C)(4); MCR 2.116(D)(3)]; and, indeed, lack of subject matter

jurisdiction may be raised for the first time on appeal. A motion under MCR 2.116(C)(4),

alleging that the court lacks subject matter jurisdiction, raises an issue of law. The issue of

subject matter jurisdiction may be raised at any time, even for the first time on appeal. McCleese

v Todd, 232 Mich App 623, 627; 591 NW2d 375 (1998) (“Lack of subject matter jurisdiction

may be raised at any time.”); Phinney v Perlmutter, 222 Mich App 513, 521; 564 NW2d 532

(1997) (“Although the jurisdictional issue here was never resolved by the trial court, a challenge

to subject-matter jurisdiction may be raised at any time, even for the first time on appeal.”).

When a court lacks jurisdiction over the subject matter, any action it takes, other than to

dismiss the case, is absolutely void. McCleese, 232 Mich App at 628; 591 NW2d at 377. The

trial court’s determination will be reviewed de novo by the appellate court to determine whether

the pleadings demonstrate that the defendant was entitled to judgment as a matter of law, or

whether affidavits and other proofs show that there was no genuine issue of material fact. See

Cork v Applebee’s of Michigan, Inc, 239 Mich App 311; 608 NW2d 62 (2000) (“When

reviewing a motion for summary disposition under MCR 2.116(C)(4), we must determine

whether the pleadings demonstrate that the defendant was entitled to judgment as a matter of law

or whether the affidavits and other proofs show that there was no genuine issue of material

of 20

fact.”); Walker v Johnson & Johnson Vision Products, Inc, 217 Mich App 705; 552 NW2d 679

(1996); Faulkner v Flowers, 206 Mich App 562; 522 NW2d 700 (1994); Department of Natural

Resources v Holloway Construction Co, 191 Mich App 704, 478 NW2d 677 (1991).

As stated in the Appellants’ brief, the invalidity of the sheriff deed establishes that the

district court lacked subject matter jurisdiction to address Appellee’s complaint for termination

of tenancy and/or to enter a Judgment for Possession. Because the lack of subject matter

jurisdiction can be raised at any time, then this appellate court has jurisdiction to address and

determine this appeal from the district court’s Possession Judgment. The Appellants’ brief

referenced Cude, PHH Mortgage Corporation v. Cude, case number 09-02-2565 LT in the 23rd

District Court of Michigan, a case in which the district court dismissed a similar complaint to

terminate tenancy after sheriff sale and deed, because of the invalidity of the sheriff deed. The

Cude court found that the district court did not have subject matter jurisdiction to resolve

genuine issues of material fact in order to quiet title. MCR 4.201(B)(1)(e) provides that a

complaint for termination of tenancy in district court summary proceedings must show the

plaintiff's right to possession and indicate why the defendant's possession is improper or

unauthorized. The invalid sheriff deed clearly means that the plaintiff does not have a right to

possession of Appellants’ home. In accordance with the court’s holding in Cude, and pursuant to

MCR 4.201(B)(1)(e), in the case at bar, Appellee’s Judgment of Possession is void because the

district court did not have subject matter jurisdiction, as a result of the invalid sheriff sale and

deed.

C. Appellee’s Request for Sanctions.

Appellee’s request for sanctions is outrageous given that Appellee continues to advocate

that Appellants’ eviction is inevitable despite undisputed evidence that Appellee’s sheriff deed is

of 20

invalid and Appellee’s ethical duty to disclose relevant material facts to the court. Accordingly,

Appellants request that this Court deny Appellee’s sanctions. Appellants also request that this

Court grant to Appellants sanctions for actual damages, reasonable attorney’s fees, and punitive

damages for costs associated with defending against Appellee’s claim for possession in reliance

upon the invalid sheriff deed.

Conclusion

Appellants argue that Appellee’s counsel has a continuing, ethical duty to truthfully

disclose to every court any relevant information or material facts regarding the case at bar.

Appellants contend that Appellees’s counsel prepared an affidavit for the sheriff sale auctioneer

that contained a misrepresentation about the auctioneer being a deputy sheriff. The Appellants

discovered the misrepresentation after a Judgment of Possession was rendered. Appellee argues

that this Court does not have jurisdiction to hear an appeal regarding Appellee’s

misrepresentation and Appellee’s invalid sheriff deed and seeks the Court’s dismissal of the

appeal so that Appellee can exercise its possession rights, obtained by fraud upon the court, and

evict the Appellants from the property that still, rightfully, belongs to the Appellants.

Appellants contend that an invalid sheriff deed deprives the lower court of subject matter

jurisdiction and thus renders the Possession Judgment void. Because the lack of subject matter

jurisdiction in the lower court can be raised at any time, including for the first time on appeal,

Appellants urge this Appellate Court to uphold Michigan law regarding the statutory authority of

sheriff sale auctioneers, and set aside the invalid sheriff sale and the void Possession Judgment.

Appellants argue that any other ruling would lead to the unjust result of awarding property to a

party who commits fraud upon the court.

of 20

Dated June 18, 2010 Respectfully submitted,

_________________________________Arthur C. Kirkland, Jr. (P27551)Attorney for Appellants Thelma Belle & Anita BelleP.O. Box 35676Detroit, MI 48235Phone: (313) 909-5895Email: [email protected]

Proof of Service

I certify that a copy of the foregoing Appellants’ Reply Brief with 5 Exhibits was served

on opposing counsel, Michelle K. Clark of Trott & Trott P.C., by hand-delivery to 31440

Northwestern Hwy, Suite 200, Farmington Hills, MI 48334 on June 18, 2010.

Respectfully submitted,

_______________________________

Anita E. Belle, Defendant/Appellant19935 VaughanDetroit, MI 48219Phone: 313-532-0161

Dated June 18, 2010

of 20

mailto:[email protected]

Exhibits

Exhibit A: A copy of the Michigan Bar Attorney Directory listing for Gregory MacKay

Exhibit B: A copy of the January 4, 2010 Motion, containing the Certificate of Service

upon Gregory MacKay

Exhibit C: The transcript of the March 23, 2009

Exhibit D: A copy of Appellee’s complaint

Exhibit E: A copy of the sheriff deed

Exhibit F: A copy of the appointment for Sterling Harrison

of 20

appellants' reply brief

Documents