Opinion
No. 346563
04-23-2020
MOHAMED KAZKAZ, Plaintiff-Appellant, v. OAKLAND COUNTY TREASURER and FPJ INVESTMENTS LLC, Defendants-Appellees, and CITY OF OAK PARK, Defendant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2018-167177-CZ Before: SAWYER, P.J., and LETICA and REDFORD, JJ. PER CURIAM.
In this declaratory-judgment action seeking to set aside a property tax foreclosure, plaintiff Mohamed Kazkaz appeals by right a stipulated order of dismissal as to defendants City of Oak Park (the City) and FPJ Investment, LLC (FPJ), under MCR 2.116(I)(1) (judgment without delay). On appeal, plaintiff challenges an order granting defendant Oakland County Treasurer (Treasurer) summary disposition under MCR 2.116(C)(4) (subject-matter jurisdiction). We affirm.
I. BACKGROUND
Plaintiff owned a residential real property located on Oneida Avenue in Oak Park, Michigan. By June 2016, plaintiff had accrued over $10,000 in unpaid property taxes on the property for the 2011 through 2015 tax years. Over the years, plaintiff had entered into, and complied with, a series of delinquent property tax payment plans with the Treasurer for certain of these tax years. Accordingly, the Treasurer had regularly exercised its discretion to withhold the property from the tax foreclosure rolls.
In June 2016, the Treasurer mailed to plaintiff's subject address a notice of delinquency for the 2015 tax year, stating, "Your local government has turned over unpaid taxes or specials [sic] assessments on your property from the 2015 tax year to our office for collection." The notice indicated that on April 2, 2018, "if your delinquent taxes, interest and fees are not paid, you can lose your property to tax foreclosure." The notice requested payment immediately in full or alternatively that plaintiff enter into a monthly payment plan. The Treasurer sent plaintiff the same notice again in August 2016. Neither of these tax delinquency notices were returned to the Treasurer as undeliverable and plaintiff, while continuing to pay under the installment plans for previous tax years, neither heeded nor took action in response to these notices.
Given plaintiff's failure to address the 2015 taxes, the Treasurer, consistent with its obligations under the General Property Tax Act (GPTA), MCL 211.1 et seq., petitioned for foreclosure for the 2015 tax year. Despite posting notice of the foreclosure proceedings on plaintiff's residence, publishing notice in the local newspaper for two consecutive weeks, and sending plaintiff notice of the proceedings via certified mail, for which someone at the residence signed, plaintiff never appeared to contest the foreclosure. Consequently, the circuit court entered a judgment of foreclosure vesting title to the property in the Treasurer, subject to plaintiff's appeal rights and right of redemption. Plaintiff never appealed the judgment or redeemed the property, despite an e-mail from the Treasurer informing plaintiff of the need to establish a new payment plan before expiration of the redemption period to save his property. Because plaintiff took no action, title to the property ultimately vested in the Treasurer. After title vested in the Treasurer, it sold the property to the City. The City later sold the property to FPJ in June 2018.
About a month later, plaintiff initiated this lawsuit seeking declaratory relief against defendants. Plaintiff alleged that he had never received any notice that the property was subject to foreclosure and that he first became aware of the tax foreclosure when he received a letter from FPJ. Plaintiff further alleged that he had no reason to believe the property would be subject to tax foreclosure given that he had entered into a series of tax payment plans with the Treasurer, including for the 2015 tax year and previous tax years, and had just renewed a payment plan the month before the Treasurer filed the petition to foreclose. Plaintiff asked that the foreclosure be set aside, asserting that it amounted to an unlawful taking and deprivation of property without due process of law and without notice.
In lieu of answering the complaint, the Treasurer moved for summary disposition under MCR 2.116(C)(4) for lack of subject-matter jurisdiction, and (C)(10) no genuine issue of material fact. The Treasurer claimed entitlement to judgment in its favor because the undisputed facts established that plaintiff had actual and constructive notice of the foreclosure, and absent any due-process violation, the court lacked jurisdiction to modify the judgment of foreclosure. Plaintiff countered the motion, asserting that he had established a due-process violation because actual notice would not have led plaintiff to know that he needed to take some action to avoid foreclosure since he had already entered into a payment plan set up by the Treasurer to avoid foreclosure and automatic payments continued to be made under that plan through April 2018. The circuit court ruled that no factual dispute existed regarding whether plaintiff had actual and constructive notice of the foreclosure proceedings and failed to appear at the hearings. The circuit court held that it consequently lacked jurisdiction and granted summary disposition to the Treasurer under MCR 2.116(C)(4) and dismissed the case under MCR 2.116(I)(1).
II. STANDARDS OF REVIEW
Summary disposition is proper under MCR 2.116(C)(4) when "[t]he court lacks jurisdiction of the subject matter." Whether a circuit court has subject-matter jurisdiction is a question of law that we review de novo. In re Tuscola Co Treasurer, 317 Mich App 688, 694; 895 NW2d 569 (2016). "[A] trial court's decision on a motion for summary disposition based on MCR 2.116(C)(4) [is reviewed] de novo to determine if the moving party was entitled to judgment as a matter of law, or if affidavits or other proofs demonstrate there is an issue of material fact." Southfield Ed Ass'n v Southfield Pub Sch Bd of Ed, 320 Mich App 353, 373; 909 NW2d 1 (2017) (citation and quotations omitted). Further, "[a] trial court's decision to grant summary disposition pursuant to MCR 2.116(I)(1) is also reviewed de novo." AK Steel Holding Corp v Dep't of Treasury, 314 Mich App 453, 462; 887 NW2d 209 (2016). "[T]he court shall render judgment without delay" under this subrule "[i]f the pleadings show that a party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there is no genuine issue of material fact . . . ." MCR 2.116(I)(1).
III. ANALYSIS
Plaintiff claims that the circuit court erred by concluding that it lacked jurisdiction and by granting summary disposition for defendants on the ground that he presented facts of a due-process violation. We disagree.
The GPTA sets forth a detailed process for judicial foreclosures based on tax delinquencies. The statute requires that the governmental unit provide notice of foreclosure consistent with minimal due-process requirements and delineates a process for contesting a petition of foreclosure once a petition has been filed. MCL 211.78k(1)-(3). Once the court enters a final judgment on a petition to foreclose, title vests "absolutely" in the foreclosing governmental unit if the interested party does not redeem the property within the statutory redemption period or appeal the judgment to this Court within 21 days. MCL 211.78k(6)-(7). In In re Wayne Co Treasurer Petition, 478 Mich 1; 732 NW2d 458 (2007), our Supreme Court explained that this scheme "reflects a clear effort to limit the jurisdiction of courts so that judgments of foreclosure may not be modified other than through the limited procedures provided in the GPTA." Although MCL 211.78k(6) deprives a circuit court of jurisdiction to alter a judgment of foreclosure if not redeemed or appealed within 21 days, the Supreme Court has interpreted the statute to grant jurisdiction to modify or vacate the judgment in situations where the petitioner fails to provide constitutionally adequate notice. Id. at 10-11.
In this case, the record reflects that plaintiff failed to redeem the property or appeal the judgment of foreclosure to this Court within 21 days of its entry. Plaintiff asserts that the circuit court incorrectly concluded that it lacked jurisdiction because the Treasurer failed to provide him constitutionally sufficient notice of the foreclosure. Both the United States and Michigan Constitutions prohibit the deprivation of property without due process of law. US Const, Am V; Const 1963, art 1, § 17. "[D]ue process requires the government to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." In re Wayne Co Treasurer Petition, 478 Mich at 9 (quotation marks and citations omitted). "Interested parties are entitled to have the [government] employ such means as one desirous of actually informing [them] might reasonably adopt to notify [them] of the pendency of the proceedings." Sidun v Wayne Co Treasurer, 481 Mich 503, 509; 751 NW2d 453 (2008) (quotation marks and citations omitted, alteration in original). In other words, "the means employed to notify interested parties must be more than a mere gesture; they must be means that one who actually desires to inform the interested parties might reasonably employ to accomplish actual notice." Id. at 509. "[D]ue process does not require that a property owner receive actual notice before the government may take his property." Id. (quotation marks and citation omitted).
The record in this case supports the circuit court's conclusion that plaintiff received constitutionally adequate notice and that plaintiff failed to establish the existence of a genuine issue of material fact in this regard to avoid summary disposition. The Treasurer sent plaintiff two notices of tax delinquency for the 2015 tax year in June and August of 2016, respectively. Neither of these notices were returned as undeliverable. Then, after filing the petition for foreclosure, the Treasurer attempted personal service at plaintiff's residence. When personal service could not be achieved, the Treasurer posted notice of the foreclosure proceedings on the front door of plaintiff's property. No evidence established that the property had been abandoned. Several weeks later, the Treasurer mailed notice of the proceedings to plaintiff's residence via certified mail and someone at the residence signed the acknowledgment of receipt of the mailing. Further, the Treasurer published for two consecutive weeks in the Oakland Press notice of the foreclosure. Under these circumstances, where service was accomplished via physical posting, certified mail, and publication in a local newspaper, and there was no indication that plaintiff had abandoned the property, we are constrained to conclude that the Treasurer's efforts were reasonably calculated to apprise plaintiff of the foreclosure proceedings and properly provided plaintiff constitutionally adequate notice.
While plaintiff contests that notice was posted at his home and that he received notice via certified mail, plaintiff nonetheless concedes on appeal that he had actual notice of the pending foreclosure based on the 2015 delinquent taxes. Despite conceding that he received actual notice of the foreclosure, plaintiff asserts that the government denied him due process because he entered into a tax payment plan for delinquent taxes after receiving notice of the delinquency and pending foreclosure and complied with the payment schedule under the plan. Plaintiff's argument lacks merit because the tax payment plan did not include the 2015 tax year and the multiple delinquent notices and notices of foreclosure specifically referenced foreclosure and payment plans in relation to the 2015 tax year. Plaintiff simply cannot blame the Treasurer for his failure to heed and respond to the notices he received. The government did not take his property without providing him constitutionally adequate notice and an opportunity to be heard. Accordingly, the circuit court did not err by concluding that plaintiff failed to establish violation of his due-process rights and that it lacked jurisdiction over plaintiff's case. The circuit court properly granted defendants summary disposition under MCR 2.116(G)(4) and MCR 2.116(I)(1).
Affirmed.
/s/ David H. Sawyer
/s/ Anica Letica
/s/ James Robert Redford