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Colby v. Tobba, Inc.

Michigan Court of Appeals
Oct 22, 1985
381 N.W.2d 411 (Mich. Ct. App. 1985)

Opinion

Docket No. 77180.

Decided October 22, 1985.

Anagnost Hall, P.C. (by Christ A. Anagnost), for plaintiff.

George Killeen, for defendant.

Before: HOOD, P.J., and D.E. HOLBROOK, JR., and D.P. KERWIN, JJ.

Recorder's court judge, sitting on the Court of Appeals by assignment.


This action arises from defendant's default on a land contract. Defendant is appealing as of right from the order of confirmation of the foreclosure sale of the property. On appeal defendant argues that plaintiffs' acceptance of payments by a court-appointed receiver constituted a waiver of the initial foreclosure and that it is entitled to credit for all payments made during the forefeiture period. We find defendant's arguments to be without merit and affirm the trial court.

Defendant argues that acceptance of payments from the court-appointed receiver waived the foreclosure and reinstated the land contract. Defendant's argument is based upon Krell v Cohen, 214 Mich. 590; 183 N.W. 53 (1921), and Rubenstine v Powers, 215 Mich. 434; 184 N.W. 589 (1921). However, those cases were decided under the law as it existed under the Judicature Act of 1915. That act was repealed, effective January 1, 1963, by the Revised Judicature Act, 1961 PA 236. Additionally we note that defendant as not the one who made the payments: rather, it was the court-appointed receiver. If defendant had wished to retain ownership, payment in full was required. MCL 600.3110; MSA 27A.3110. By making the payments, the court-appointed receiver was fulfilling his statutory duties. MCL 600.2926; MSA 27A.2926; MCL 600.2927; MSA 27A.2927. We decline defendant's invitation to create a rule which would require vendors to refuse all payments from a court-appointed receiver.

Defendant also contends that it is entitled to a return of approximately $57,000 for payments that it paid during the forfeiture period. After a thorough review of the record, we agree with the trial court that no surplus existed.

Accordingly, we affirm the trial court.

Affirmed. Costs to appellees.


Summaries of

Colby v. Tobba, Inc.

Michigan Court of Appeals
Oct 22, 1985
381 N.W.2d 411 (Mich. Ct. App. 1985)
Case details for

Colby v. Tobba, Inc.

Case Details

Full title:COLBY v. TOBBA, INC

Court:Michigan Court of Appeals

Date published: Oct 22, 1985

Citations

381 N.W.2d 411 (Mich. Ct. App. 1985)
381 N.W.2d 411

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