Sutariya Properties LLC v. Allen & I-75 LLC ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SUTARIYA PROPERTIES LLC, FOR PUBLICATION
February 25, 2020
Plaintiff/Counter-Defendant- 9:10 a.m.
Appellant,
v No. 344481
Wayne Circuit Court
ALLEN & I-75, LLC. and BILAL SAAD, LC No. 14-009289-CH
Defendants/Counter-Plaintiffs/Third
Party Plaintiffs/Cross-Plaintiffs-
Appellees
and
ALLEN & I-75, INC.,
Defendant/Counter-Plaintiff/Third-
Party Plaintiff
and
FRACN HOLDINGS LLC, and CHARLES
ALIAHMAD,
Defendants/Cross-Defendants
and
NORTH CRE VENTURE 2010-2, LLC,
Third-Party Defendant.
Before: SHAPIRO, P.J., and JANSEN and M. J. KELLY, JJ.
PER CURIAM.
Appellant, Sutariya Properties, LLC, appeals as of right a judgment in its favor against
FRACN Holdings, LLC. On appeal, Sutariya Properties challenges the trial court’s prior order
-1-
granting summary disposition in favor of appellees, Allen & I-75, LLC and Bilal Saad. Because
there are no errors warranting reversal, we affirm.
I. BASIC FACTS
The events leading to the underlying dispute in this matter are largely undisputed. On
April 28, 2009, Allen & I-75 entered an agreement with Warren Bank, borrowing $1,650,000 so
that it could purchase real property in Southgate, Michigan. Paragraph 8.11 of the loan agreement,
which is referred to by the parties as the tender-back provision or the put-back provision, provides:
During the period from May 1, 2011 through November 1, 2011 and
provided that no Event of Default exists, Borrower may, with not less than 30 days’
nor more than 60 days’ prior written notice to Bank, deed the Real Property and
convey or cause to be conveyed the Personal Property to Bank by warranty deed
conveying marketable fee simple title and warranty bill of sale, free and clear of
any interests, encumbrances and liens of any third parties, and without any new
restrictions against the Real Property that do not exist of record as of the date of
this Loan Agreement, with all real and personal property taxes and assessments due
and payable as of the date of such conveyance fully paid, in full satisfaction of
Borrower’s and Guarantors’ liability for the remaining unpaid non-delinquent
principal and interest then due on the Loan. If Borrower elects to exercise such
right to convey the Real Property and Personal Property as provided herein, there
shall be an orderly transfer at a mutually agreeable date and time within the notice
period with real and personal property taxes pro-rated on a DUE DATE BASIS and
with final utility readings and surrender of all keys to the Real and Personal
Property, and any improvements to the Real Property and Personal Property by or
on behalf of Borrower or any Guarantor shall remain with the Real Property and
Personal Property and will be considered the property of Bank without liability to
Borrower or any Guarantor.
Along with the loan agreement, Allen & I-75 executed a promissory note, a mortgage on the
property in favor of Warren Bank, and an assignment of leases and rents in favor of Warren Bank.
In addition, Allen & I-75’s sole member, Saad, executed a guaranty for the debt. Collectively, the
loan agreement, promissory note, mortgage, assignment of leases and rents, and guaranty will be
referred to as the Allen Loan Package.
In 2009, Warren Bank was closed by the Michigan Office of Financial and Insurance
Regulation, and the Federal Deposit Insurance Corporation (FDIC) was appointed as the receiver
for its holdings. Thereafter, the FDIC partnered with Colony Capital, a real estate private equity
firm, to create North CRE Venture 2010-2, Inc. As it relates to this case, North CRE held a
portfolio of debts including the Allen Loan Package. Colony Capital acted as North CRE’s
managing member to resolve nonperforming debts, and the FDIC maintained a 60% controlling
interest in North CRE.
Starting on May 27, 2011, Allen & I-75 and Saad sought to exercise the option under
Paragraph 8.11 of the loan agreement to convey the property to the lender in full satisfaction of
the liability associated with the loan, as well as the liability of the guarantors. Between May 27,
-2-
2011 and July 2011, Allen & I-75 and Saad sent numerous letters invoking Paragraph 8.11 to North
CRE or those affiliated with North CRE. In early September 2011, North CRE’s lawyer finally
contacted Allen & I-75 and Saad. Initially, North CRE indicated that there was some question as
to whether Allen & I-75’s payment obligations were current. Yet, it was eventually determined
that the payment obligations were current and that Allen & I-75 was not in default. Further, North
CRE acknowledged that Allen & I-75 had the right to exercise the tender-back option in Paragraph
8.11 of the loan agreement. However, because of the terms of the agreement between Colony
Capital and the FDIC, North CRE claimed that it was unable to accept title to the property.
Therefore, in an effort to resolve the issue, North CRE informally agreed to extend the six-month
period within which Paragraph 8.11 of the loan agreement required Allen & I-75 to convey the
property to North CRE. It was also agreed that Allen & I-75 would remain on the property, without
making further loan payments, to operate the gas station business and would still be able to exercise
its tender-back rights under Paragraph 8.11 when a final resolution was reached.1
The Allen Loan Package was ultimately sold to FRACN in the spring of 2014 as part of a
debt portfolio consisting of negotiable instruments related to several properties. The record
reflects that although North CRE did not provide a written disclosure regarding the modification
of the loan agreement, FRACN received an e-mail indicating that “[t]he note for [the property at
issue in this case] has been modified/rewritten to forgive the debtor (Bill [sic] Saad) for any
responsibility in paying back the $1,649,416 outstanding balance on the note as long as the debtor
makes a demonstrative effort to sell the asset.” Almost immediately after North CRE assigned the
Allen Loan Package to FRACN, FRACN assigned it to Sutariya Properties, without providing any
notice of the issues regarding its enforceability.
On July 18, 2014, Sutariya Properties initiated this action by filing a complaint against
Allen & 1-75 and Saad alleging that the 2009 promissory note was in default and seeking to
foreclose on the mortgage, have a receiver appointed, and recover the balance of the promissory
note. Allen & 1-75 and Saad denied that the note was in default, indicating that they had complied
with the tender-back provision in Paragraph 8.11 of the loan agreement. Allen & I-75 and Saad
additionally filed a counter-claim against Sutariya Properties, alleging that by refusing to honor
the tender-back provision in Paragraph 8.11 of the loan agreement, Sutariya had breached the
agreement.
The parties filed numerous competing motions for summary disposition. Relevant to this
appeal, Sutariya Properties argued that any modification of the loan agreement was oral, but that
an oral modification was ineffective because MCL 566.132(2), which is applicable in actions
against a financial institution, requires a “promise or commitment to renew, extend, modify, or
permit a delay in repayment or performance of a loan, extension of credit, or other financial
accommodation” to be “in writing and signed with an authorized signature by the financial
institution.” Following oral arguments, the trial court determined that MCL 566.132 did not apply
because there was no attempt to enforce an oral agreement against a “financial institution,” and
the statutory language did not indicate that it applied to “an individual who takes an assignment of
1
The parties dispute whether the loan modification was strictly an oral modification or whether it
was committed to a signed writing sufficient to satisfy the statute of frauds.
-3-
a note, in the course of business, further down the road.” The court also determined that Paragraph
8.11 of the loan agreement had been modified so as to release Allen & I-75 and Saad from liability
on the outstanding indebtedness and that the negotiated release was conveyed to FRACN’s broker.
The trial court, therefore, concluded that Allen & I-75 and Saad were entitled to summary
disposition, and entered an order granting their motion and denying Sutariya Properties’ motion
for summary disposition. The order also dismissed Allen & I-75 and Saad’s counterclaims as
moot. After further litigation unrelated to the issues raised in this appeal, the trial court entered a
final judgment in Sutariya Properties’ favor against FRACN from which this appeal was taken.
II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
Sutariya Properties argues that the trial court erred by denying its motion for summary
disposition and by granting Allen & I-75 and Saad’s motion for summary disposition. Challenges
to a court’s decision to grant or deny motions for summary disposition are reviewed de novo. El-
Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 NW2d 665 (2019). Summary
disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Mich Ass’n of Home Builders v
City of Troy, 504 Mich. 204, 212; 934 NW2d 713 (2019). “A genuine issue of material fact exists
when the record leaves open an issue upon which reasonable minds might differ.” El-Khalil, 504
Mich. at 160 (quotation marks and citation omitted). Issues of statutory interpretation are reviewed
de novo. Mich Ass’n of Home Builders, 504 Mich. at 212.
B. ANALYSIS
Sutariya Properties argues that Allen & I-75 and Saad cannot enforce the modification of
Paragraph 8.11 of the loan agreement because the modification is oral and, therefore, its
enforcement is barred by the statute of frauds set forth in MCL 566.132(2). “The statute of frauds,
MCL 566.132, requires certain types of agreements to be in writing before they can be enforced.”
Crown Technology Park v D&N Bank, FSB, 242 Mich. App. 538, 548; 619 NW2d 66 (2000). When
interpreting a statute, this Court must first examine the statutory language, and, “[i]f the statute is
unambiguous on its face, we simply enforce the statute as written.” Id. at 549. MCL 566.132(2)
provides:
(2) An action shall not be brought against a financial institution to enforce
any of the following promises or commitments of the financial institution unless
the promise or commitment is in writing and signed with an authorized signature
by the financial institution:
(a) A promise or commitment to lend money, grant or extend credit, or make
any other financial accommodation.
(b) A promise or commitment to renew, extend, modify, or permit a delay
in repayment or performance of a loan, extension of credit, or other financial
accommodation.
-4-
(c) A promise or commitment to waive a provision of a loan, extension of
credit, or other financial accommodation.
This Court has held that MCL 566.132(2) acts as “an unqualified and broad ban” on claims against
financial institutions. Crown Tech Park, 242 Mich. App. at 550. The term “financial institution”
is statutorily defined as
a state or national chartered bank, a state or federal chartered savings bank or
savings and loan association, a state or federal chartered credit union, a person
licensed or registered under the mortgage brokers, lenders, and servicers licensing
act, Act No. 173 of the Public Acts of 1987, being sections 445.1651 to 445.1683
of the Michigan Compiled Laws, or [the Secondary Mortgage Loan Act,] Act No.
125 of the Public Acts of 1981, being sections 493.51 to 493.81 of the Michigan
Compiled Laws, or an affiliate or subsidiary thereof. [MCL 566.132(3).]
The question at issue in this case is whether North CRE, the entity that modified the loan
agreement with Allen & I-75 and Saad qualifies as a financial institution. At the outset, it is clear
that North CRE is not a bank, a savings bank or savings and loan association, a credit union, or a
person licensed or registered under the Mortgage Brokers, Lenders, and Servicers Licensing Act
or Secondary Mortgage Loan Act, MCL 445.1651 et seq. or the Secondary Mortgage Loan Act,
MCL 493.51 et seq. On appeal, Sutariya Properties argues that North CRE is an “affiliate or
subsidiary” of “a state or nationally chartered bank.”
Specifically, Sutariya Properties proclaims that the FDIC is a state or nationally chartered
bank because it was appointed as the receiver for Warren Bank. The FDIC, however, is a
corporation created pursuant to the federal deposit insurance act, 12 USC 1811 et seq., to insure
deposits held by various institutions and act as receiver for insured institutions under certain
circumstances. 12 USC 1811; 12 USC 1822; see also Kim v JPMorgan Chase Bank, NA, 493
Mich. 98, 107 n 15; 825 NW2d 329 (2012). The fact that the FDIC was appointed as the receiver
for Warren Bank (which was presumably a state or nationally chartered bank) does not mean that
the FDIC is also a state or nationally chartered bank. The Legislature opted to include affiliates
and subsidiaries of state or nationally chartered banks within the definition of a financial
institution.2 It did not, however, also include receivers of state or nationally chartered banks within
the definition. When interpreting a statute, this Court is not at liberty to read provisions not
included by the Legislature into the statutory language. Polkton Twp v Pellegrom, 265 Mich. App.
2
MCL 566.132(3) provides that affiliates or subsidiaries of state or nationally chartered banks
qualify as financial institutions. Because these terms were not defined by the Legislature and have
a peculiar legal meaning, it is appropriate to consult a legal dictionary to ascertain their meaning.
Safdar v Aziz, 327 Mich. App. 252, 262; 933 NW2d 708 (2019). According to Black’s Law
Dictionary (11th ed), “affiliate” means “[a] corporation that is related to another corporation by
shareholdings or other means of control; a subsidiary, parent, or sibling corporation.” A
“subsidiary” is a shortened term for “subsidiary corporation,” which refers to “[a] corporation in
which a parent corporation has a controlling share.” Black’s Law Dictionary (11th ed), p 432. The
FDIC is not a subsidiary or an affiliate of Warren Bank.
-5-
88, 102; 693 NW2d 170 (2005). Accordingly, under the plain language of MCL 566.132(3), the
FDIC is not a financial institution, so North CRE cannot qualify as a financial institution by virtue
of being an affiliate or subsidiary of the FDIC. The trial court did not err by granting summary
disposition.3
Affirmed. Allen & I-75 and Saad may tax costs as the prevailing party. MCR 7.219(A).
/s/ Douglas B. Shapiro
/s/ Kathleen Jansen
/s/ Michael J. Kelly
3
Given our resolution, we decline to address Allen & I-75 and Saad’s alternative arguments in
favor of affirming the trial court’s decision to grant their motion for summary disposition and deny
Sutariya Properties’ motion for summary disposition.
-6-