US Bank National Association v. Jeffrey Klemm ( 2014 )

STATE OF MICHIGAN
COURT OF APPEALS
U.S. BANK NATIONAL ASSOCIATION, UNPUBLISHED
November 18, 2014
Plaintiff-Appellee,
v No. 317235
Allegan Circuit Court
JEFFREY KLEMM, and HUNTINGTON LC No. 12-049873-CH
NATIONAL BANK,
Defendants,
and
LORI KLEMM,
Defendant-Appellant.
Before: M. J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.
PER CURIAM.
In this foreclosure dispute, defendant Lori Klemm appeals by right the trial court’s order
granting summary disposition in favor of plaintiff, U.S. Bank National Association, and entering
a judgment of foreclosure against her interest in the real property at issue.1 Because we conclude
there were no errors warranting relief, we affirm.
Jeffrey and Lori Klemm, who were married, purchased real property in Saugatuck,
Michigan. In April 2005, Jeffrey Klemm executed a note that was secured by a mortgage on the
property. Jeffrey executed the mortgage on his wife’s behalf under a power of attorney whose
authenticity his wife later disputed. Jeffrey and Lori used the proceeds to pay off an existing
note and mortgage on the property that they had both executed. The note and mortgage at issue
were eventually assigned to U.S. Bank.
1
U.S. Bank sued defendant Huntington National Bank to establish that its security interest had
priority over a security interest held by Huntington Bank on the same property. Jeffrey Klemm
and Huntington Bank are not parties to this appeal.
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In March 2012, U.S. Bank sued for judicial foreclosure under the note and mortgage.
U.S. Bank alleged that Jeffrey Klemm defaulted on the note by failing to make monthly
payments from June 2009 and that, under the terms of the mortgage, it had the right to foreclose
against the property.
Jeffrey Klemm admitted in his pleadings that he executed the note and mortgage and
subsequently failed to make monthly payments as required under the note. But Jeffrey and Lori
Klemm alleged that when Jeffrey Klemm executed the mortgage on his wife’s behalf he did not
have written authority to do so. Accordingly, they argued, the mortgage was invalid.
In April 2013, U.S. Bank moved for summary disposition under MCR 2.116(C)(9) and
MCR 2.116(C)(10). It argued that it was entitled to summary disposition as to Jeffrey Klemm
under MCR 2.116(C)(9) because he conceded that he executed the note and mortgage and failed
to make the required payments. With regard to Lori Klemm’s interest in the property and the
validity of the mortgage, U.S. Bank argued that it was entitled to summary disposition under
MCR 2.116(C)(10) because the undisputed evidence showed that, even if Lori Klemm did not
validly authorize her husband to execute the mortgage on her behalf in April 2005, she
subsequently ratified his acts. The trial court agreed that Jeffrey Klemm had no defense and
determined that the undisputed evidence showed that Lori Klemm ratified the mortgage.
Consequently, it granted U.S. Bank’s motion for summary disposition.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Under MCR 2.116(C)(10),
summary disposition of all or part of a claim or defense may be granted when “[e]xcept as to the
amount of damages, there is no genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law.” “A motion under MCR
2.116(C)(10) tests the factual sufficiency of the complaint.” Maiden, 461 Mich at 120. In
reviewing a motion under MCR 2.116(C)(10), this Court must “determine whether there exists a
genuine issue of material fact on which reasonable minds could differ or whether the moving
party is entitled to judgment as a matter of law.” Gibson v Neelis, 227 Mich App 187, 190; 575
NW2d 313 (1997). We consider the “entire record in the light most favorable to the party
opposing the motion . . . .” Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342
(2004). “There is a genuine issue of material fact when reasonable minds could differ on an
issue after viewing the record in the light most favorable to the nonmoving party.” Allison v
AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
On appeal, Lori Klemm argues the trial court erred when it determined that the
undisputed evidence showed she ratified the April 2005 mortgage. “ ‘Ratification is the
affirmance by a person of a prior act which did not bind him but which was done or professedly
done on his account, whereby the act, as to some or all persons, is given effect as if originally
authorized by him.’ ” City Nat’l Bank of Detroit v Westland Towers Apartments, 152 Mich App
136, 142-143; 393 NW2d 554 (1986), quoting David v Serges, 373 Mich 442, 444; 129 NW2d
882 (1964), quoting 1 Restatement Agency, 2d, § 82, p 210. An affirmance for purposes of
ratification is “ ‘(a) a manifestation of an election by one on whose account an unauthorized act
has been done to treat the act as authorized, or (b) conduct by him justifiable only if there were
such an election.’ ” City Nat’l Bank of Detroit, 152 Mich App at 143, quoting David, 373 Mich
at 444, quoting 1 Restatement Agency, 2d, § 83, p 212. “Ratification may be express or implied,
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so long as there is knowledge of the material facts relating to the initial contract.” Apfelblat v
Nat’l Bank Wyandotte-Taylor, 158 Mich App 258, 262; 404 NW2d 725 (1987).
Lori Klemm argues on appeal that the evidence showed she did not have knowledge of
the material facts concerning the April 2005 mortgage and, therefore, her subsequent actions
could not ratify the mortgage. However, before U.S. Bank sued to foreclose in March 2012, Lori
Klemm petitioned for bankruptcy. In her petition, she stated that she knew about the April 2005
mortgage and considered herself a codebtor. She also listed U.S Bank as a secured creditor,
listed the amount outstanding on the note, and stated that it was her intent to surrender the
property. Accordingly, the evidence showed that Lori Klemm was aware of the material facts
related to the mortgage executed on her behalf.
Further, Lori Klemm’s assertions in her bankruptcy petition showed that she had elected
to treat the April 2005 mortgage as authorized. Additionally, less than three months after her
husband signed the mortgage on her behalf, Lori Klemm went to the title company and signed a
new power of attorney, giving Jeffrey Klemm authority with respect to mortgages on the
property. Although it is unclear when she learned the specific details concerning the note and
mortgage, the evidence showed that Lori Klemm eventually became aware of the material terms
related to the note and mortgage and took steps to ensure that the process was complete by
signing the new power of attorney. She also continued to live at the property and considered
herself a co-owner, which was only possible because the proceeds from the April 2005 note and
mortgage were used to pay off a prior note and mortgage. Given the undisputed evidence that
Lori Klemm took actions to affirm her husband’s acts, the trial court did not err when it
determined that she ratified the mortgage. City Nat’l Bank of Detroit, 152 Mich App at 142-143.
The trial court properly granted summary disposition in U.S. Bank’s favor regarding Lori
Klemm’s interest in the property at issue. Maiden, 461 Mich at 118.2
There were no errors warranting relief.
Affirmed. As the prevailing party, U.S. Bank may tax its costs. MCR 7.219(A).
/s/ Michael J. Kelly
/s/ Jane M. Beckering
/s/ Douglas B. Shapiro
2
Given our resolution of this issue, we decline to consider U.S. Bank’s alternate bases for
affirming.
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