2. Michigan law relating to the doctrines of waiver and laches requires that persons in Debtor's position timely raise issues of irregularities or infirmities in the foreclosure process, and provides that their failure to do so precludes them from later asserting such. See, e.g. Fox vs Jacobs, 289 Mich. 619, 624 286 N.W. 854, 856 (Mich. 1939).

2. Michigan law relating to the doctrines of waiver and laches requires that persons in Debtor's position timely raise issues of irregularities or infirmities in the foreclosure process, and provides that their failure to do so precludes them from later asserting such. See, e.g. Fox vs Jacobs, 289 Mich. 619, 624 286 N.W. 854, 856 (Mich. 1939).

"The function of courts of equity is to do justice, not injustice." Fox v Jacobs, 289 Mich 619, 623; 286 NW 854 (1939). In a proper case, hardship may be considered a factor in a court's determination of whether to apply its equitable powers. Etherington v Bailiff, 334 Mich 543, 554; 55 NW2d 86 (1952).

It naturally follows from this pronouncement that one who is not the record holder of a mortgage may not foreclose the mortgage under MCL 600.3204. Id.; see also Fox v Jacobs, 289 Mich 619, 623-624; 286 NW 854 (1939) (holding that despite a notice defect in the foreclosure proceedings, the defendants "possessed the right to foreclose" because "there is no question but that the [defendants] at the time foreclosure was instituted owned all of the interest in the mortgage"). In this case, defendant did not own the mortgage or an interest in the mortgage on October 27, 2005.

We hold that a defect in notice renders a foreclosure sale voidable. Our Supreme Court reached a similar result in Fox v Jacobs, 289 Mich. 619; 286 N.W. 854 (1939), holding that the failure of the notice to specify an assignee of the mortgage, as required by statute, did not render the foreclosure sale absolutely void, but only voidable. While it is clear that the defect of which the mortgagee complained in Fox is not of the same nature as the defect presented here, we are convinced that the same result is required here.

Id. at 429 (quoting Richard v. Schneiderman & Sherman, PC, 818 N.W.2d 334, 337 (Mich. Ct. App. 2011), rev'd on other grounds, 807 N.W.2d 325 (Mich. 2012)). Michigan courts have dismissed post-redemption period challenges to foreclosures when the plaintiff filed suit after the redemption period expired, see Richard, 818 N.W.2d at 337 (citing White v. Burkhardt, 60 N.W.2d 925 (Mich. 1953)), and when the plaintiff filed suit some twenty months after the foreclosure sale, id. (citing Fox v. Jacobs, 286 N.W. 854 (Mich. 1939)). In this case, the six-month statutory redemption period ended on May 29, 2013.

First, our Supreme Court has held that a mortgagor must challenge the validity of a foreclosure by advertisement promptly and without delay. See White v Burkhardt, 338 Mich 235, 239; 60 NW2d 925 (1953) (Claim too late where redemption period expired prior to filing of complaint); Fox v Jacobs, 289 Mich 619, 625; 286 NW2d 854 (1939) (Twenty months after foreclosure sale too late). In addition, in Hogan v Hester Investment Co, 257 Mich 627; 241 NW 881 (1932), our Supreme Court held that the validity of a foreclosure by advertisement may not be challenged after the property is sold to a bona fide purchaser.

Specifically, Calvert cites cases estopping mortgage holders from challenging foreclosure sales when they unreasonably delayed in seeking relief. See Fox v. Jacobs, 286 N.W.2d 854, 857 (Mich. 1939) (mortgage holder did not challenge alleged defects in the foreclosure notice for twenty months following the foreclosure sale); Walker v. Schultz, 141 N.W. 543, 545 (Mich. 1913) (mortgage holder did not challenge an irregularity in a foreclosure proceeding for years). However, there is no assertion here that Plaintiffs unreasonably delayed in challenging the foreclosure proceedings, and Calvert cites no authority specifically holding that exercising the right of redemption results in a waiver of the right to challenge the foreclosure proceedings.

This Court, the Court of Appeals, and the United States District Court for the Eastern District of Michigan have consistently used this interpretation."); Fox v. Jacobs, 286 N.W. 854 (Mich. 1939) (notice defect renders a foreclosure sale voidable, rather than void). Here, Plaintiff does not explain how he would have been in a better position to preserve his interest in the property absent the noncompliance, i.e., if the purported assignment had been recorded and the notices correct; indeed, Plaintiff "does not challenge Chase or Freddie Mac's right to foreclose," he simply "challenge[s] the method and means leading to the sheriff's sale of his home."

Stavenkan offers no reason for the delay, and, given that Stavenkan's owner and operator Michael Stacey was also the majority shareholder and president of First Mortgage, it seems likely that Stavenkan at least had notice of First Mortgage's actions. Regardless, under Michigan law, three years is too long to wait. See White v. Burkhardt, 338 Mich. 235, 239, 60 N.W.2d 925 (1953) (concluding that a claim was too late when the redemption period had expired before the filing of the complaint); Fox v. Jacobs, 289 Mich. 619, 625, 286 N.W. 854 (1939) (concluding that a challenge brought twenty months after the foreclosure sale was brought too late). The bankruptcy court held that it could not reach Stavenkan's challenge to the foreclosure's validity because it was required to give full faith and credit to “valid foreclosures entered in another forum.”