Nancy J Gardner v. Potestivo & Associates Pc ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
NANCY J. GARDNER, UNPUBLISHED
December 20, 2016
Plaintiff-Appellant,
v No. 328185
St. Clair Circuit Court
POTESTIVO & ASSOCIATES P.C., FEDERAL LC No. 15-000435-PZ
NATIONAL MORTGAGE ASSOCIATION,
QUICKEN LOANS, INC., FLAGSTAR BANK
FSB, and SHERIFF TIM DONNELLON,
Defendants-Appellees.
NANCY GARDNER,
Plaintiff-Appellant,
v No. 329752
St. Clair Circuit Court
UNITED STATES OF AMERICA, FLAGSTAR LC No. 15-001505-CH
BANK, QUICKEN LOANS, FEDERAL
NATIONAL MORTGAGE ASSOCIATION,
POTESTIVO & ASSOCIATES P.C., ST. CLAIR
COUNTY SHERIFF DEPARTMENT, and
STATE OF MICHIGAN,
Defendants-Appellees.
Agent Nancy on behalf of NANCY J. GARDNER
and Agent Don on behalf of DONALD M.
GARDNER,
Plaintiffs-Appellants,
v No. 330964
St. Clair Circuit Court
CHIEF EXECUTIVE OFFICER FOR THE LC No. 15-002607-CZ
UNITED STATES and CHIEF EXECUTIVE
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OFFICER FOR THE FEDERAL NATIONAL
MORTGAGE ASSOCIATION,
Defendants-Appellees.
Before: SERVITTO, P.J., and STEPHENS and RONAYNE KRAUSE, JJ.
PER CURIAM.
In Docket No. 328185, plaintiff, Nancy Gardner, appeals as of right an order entered by
St. Clair Circuit Court Judge Daniel J. Kelly, granting summary disposition of plaintiff’s
declaratory judgment action in favor of defendants, Potestivo & Associates P.C., Federal
National Mortgage Association (“Fannie Mae”), Quicken Loans, Inc. (“Quicken”), Flagstar
Bank, FSB, and Sheriff Tim Donnellon, and discharging and releasing a claim of lien executed
by plaintiff against real property located at 7221 State Road, Burtchville, Michigan.
In Docket No. 329752, plaintiff appeals as of right an order entered by St. Clair Circuit
Court Judge Michael L. West, granting summary disposition of plaintiff’s foreclosure action in
favor of defendants, the United States of America, Flagstar Bank, Quicken, Fannie Mae,
Potestivo & Associates, P.C., the St. Clair County Sheriff’s Department, and the State of
Michigan.
In Docket No. 330964, plaintiffs, “Agent Nancy on behalf of Nancy J. Gardner” and
“Agent Don on behalf of Donald M. Gardner,” appeal as of right another order entered by Judge
Kelly dismissing a quitclaim deed action filed against defendants, the Chief Executive Officer
for the United States of America and the Chief Executive Officer for Fannie Mae. The court
dismissed the action because “Agent Nancy” and “Agent Don” are not legally recognized entities
and neither had the capacity to bring an action before the court.
We affirm in all three appeals.
I. BACKGROUND FACTS
The current cases represent three of many legal actions, brought in both state and federal
court, related to the real property located at 7221 State Road, Burtchville, Michigan (“the
property”). The Sixth Circuit Court of Appeals summarized the historical facts leading up to the
instant cases as follows:
On May 18, 2007, Gardner executed a note in the amount of $215,200.00
to obtain a loan from Flagstar to purchase real property commonly known as 7221
State Road, Burtchville, Michigan 48059. As security for the loan, Gardner
executed a mortgage on the property. On May 22, 2007, the mortgage was
recorded with the St. Clair County Register of Deeds, in Liber 3723 Page 10.
Both the note and mortgage were in favor of Flagstar, as lender, with Mortgage
Electronic Registration Systems, Inc. (MERS) acting solely as the nominee for
Flagstar and its successors and assigns. The mortgage provided that MERS is the
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mortgagee under the mortgage. On March 4, 2013, the mortgage was assigned
from MERS, as nominee for Flagstar and its successors and assigns, to Quicken.
The assignment was recorded with the St. Clair County Register of Deeds.
Gardner defaulted on the note for nonpayment. On February 11, 2013,
Potestivo, a debt collector acting on behalf of Quicken, served a pre-foreclosure
notice on Gardner notifying her that default was made for nonpayment and that
the amount due under the note was $207,350.35. On March 6, Gardner responded,
requesting a meeting with Potestivo to attempt to work out a modification of the
mortgage loan. On March 12, Potestivo replied, informing Gardner that it was the
designee for Quicken with regard to her loan pursuant to section
600.3205(a)(1)(c) of the Michigan Compiled Laws. Potestivo advised that to
initiate a modification, Gardner would need to complete and return certain
financial paperwork along with any supporting documentation within seven days.
Potestivo also advised that the ninety-day hold on foreclosure proceedings would
expire on May 13, 2013. Gardner responded on March 16. Instead of providing
the documentation Potestivo requested, Gardner requested documentation of
Potestivo’s legal right to negotiate with her and to enter into a modification
agreement under the terms of the mortgage. On March 25, Potestivo replied,
stating that its response was in connection with Gardner’s request that Quicken
review the loan for a possible modification and again requesting that Gardner
complete and return certain financial paperwork along with supporting
documentation within seven days. The letter again advised that the ninety-day
hold on foreclosure proceedings would expire on May 13, 2013. On April 8,
Potestivo again wrote to Gardner, noting the receipt of her March 16 letter,
explaining that it was the designee for Quicken, and advising that it must receive
Gardner’s documentation by April 12, 2013. On May 23, Potestivo again wrote
to Gardner, responding to her request for information about the mortgage loan.
Potestivo reiterated that it was the designee for Quicken and informed Gardner
that on March 4, 2013, the mortgage was assigned from MERS as nominee for
Flagstar to Quicken. Potestivo enclosed copies of the note, mortgage, assignment,
and correspondence from its office. The letter also informed Gardner that
Quicken was entitled to enforce the mortgage as the mortgagee of record, that the
outstanding balance of the loan was $210,270.10, and that a foreclosure sale was
scheduled for May 30, 2013. The foreclosure notice was posted on the door of
the property and published four times in the Port Huron Times Herald on April
19, April 25, May 3, and May 10, 2013. A sheriff’s sale was held on May 30,
2013. Quicken was the highest bidder and received the sheriff’s deed to the
property. Gardner had six months to redeem the property, and the redemption
period expired on November 30, 2013.
A day before the sheriff’s sale, on May 29, 2013, Gardner filed a lawsuit
in St. Clair County circuit court against Flagstar, Quicken, and Potestivo. Gardner
framed her complaint in three counts. Count I sought a declaratory judgment of
no debt owed the defendants because they “failed to satisfy their burden of
showing they are entitled to enforce the debt.” In Count I, Gardner alleged
multiple challenges to the foreclosure sale: (1) that the defendants failed to
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comply with Article 3 of the UCC; (2) that they lacked “standing” to foreclose on
her mortgage because the defendants failed to endorse the note and were not a
holder in due course; (3) that she was entitled to a copy of the original note before
Quicken could foreclose; and (4) that Flagstar violated section 6 of the Real
Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2605, because it sold the
note shortly after it was originated. Count II alleged that the mortgage was an
unenforceable contract of adhesion. Count III sought injunctive relief barring the
defendants from proceeding with the foreclosure. On June 19, Quicken and
Potestivo timely removed the case to federal district court because Gardner
alleged that Flagstar violated the REPSA, 12 U.S.C. § 2605. Flagstar consented
to the removal. Quicken and Potestivo moved to dismiss pursuant to Rule
12(b)(6). Flagstar concurred in the motion. On August 27, 2013, the district
court granted the defendants’ motion and dismissed Gardner’s case for failure to
state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).
Gardner timely appealed. [Gardner v Quicken Loans, Inc, unpublished opinion of
the Sixth Circuit Court of Appeals, issued June 2, 2014 (Docket No. 13-2257)
(citation omitted).]
On June 2, 2014, the Sixth Circuit Court of Appeals affirmed the federal district court’s order
granting the motion to dismiss. On June 12, 2014, Quicken transferred the property to Fannie
Mae by quitclaim deed for “the full consideration of One Dollar ($1.00).”
The instant appeals arise from cases filed in the St. Clair Circuit Court after the Sixth
Circuit’s decision.
II. DOCKET NO. 328185
Plaintiff first argues that Judge Kelly erred by granting summary disposition to
defendants on the basis of a lack of standing in her declaratory judgment action. We disagree.
“This Court reviews de novo a circuit court’s summary disposition ruling.” Dalley v
Dykema Gossett, PLLC, 287 Mich. App. 296, 304; 788 NW2d 679 (2010). Whether a party has
standing to assert a claim also poses a question of law that we review de novo. Heltzel v Heltzel,
248 Mich. App. 1, 28; 638 NW2d 123 (2001). Likewise, questions of law related to declaratory
judgment actions are reviewed de novo, but a decision regarding declaratory relief is reviewed
for an abuse of discretion. Barrow v Detroit Election Comm, 305 Mich. App. 649, 662; 854
NW2d 489 (2014). “[A]n abuse of discretion occurs only when the trial court’s decision is
outside the range of reasonable and principled outcomes.” Id. (citation omitted).
A motion for summary disposition asserting as its basis the doctrine of standing invokes a
prudential doctrine that “focuses on whether a litigant ‘is a proper party to request adjudication
of a particular issue and not whether the issue itself is justiciable.’ ” Pontiac Police & Fire
Retiree Prefunded Group Health & Ins Trust Bd of Trustees v Pontiac No 2, 309 Mich. App. 611,
620-621; 873 NW2d 783 (2015) (citations omitted). “A motion based on such a defense would
be within MCR 2.116(C)(8) or MCR 2.116(C)(10), depending on the pleadings or other
circumstances of the particular case.” Id. (citation omitted). Here, defendants brought motions
pursuant to MCR 2.116(C)(8), and Judge Kelly cited MCR 2.116(C)(8) in his opinion.
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However, Judge Kelly’s opinion was in part based upon an analysis of documentary
evidence beyond the pleadings. Therefore, we treat the motions as having also been brought, and
granted, pursuant to MCR 2.116(C)(10), and we too examine the pleadings and documents on
which the parties and the court relied. Kefgen v Davidson, 241 Mich. App. 611, 616; 617 NW2d
351 (2000).
A motion for summary disposition pursuant to MCR 2.116(C)(10) “tests the factual
sufficiency of the complaint.” Joseph v Auto Club Ins Ass’n, 491 Mich. 200, 206; 815 NW2d 412
(2012). “In evaluating a motion for summary disposition brought under this subsection, a trial
court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by
the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.”
Maiden v Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999). Summary disposition is proper
under MCR 2.116(C)(10) where there is no “genuine issue regarding any material fact.” Id.
MCR 2.605 governs actions seeking a declaratory judgment. “In a case of actual
controversy within its jurisdiction, a Michigan court of record may declare the rights and other
legal relations of an interested party seeking a declaratory judgment, whether or not other relief
is or could be sought or granted.” MCR 2.605(A)(1). A judgment for declaratory relief is not
precluded where there exists another adequate remedy. MCR 2.605(C). A declaratory judgment
is a procedural remedy that constitutes a binding and conclusive adjudication of the rights and
status of the litigants. Associated Builders & Contractors v Dep't of Consumer & Indus Servs
Dir, 472 Mich. 117, 124; 693 NW2d 374 (2005), overruled in part on other grounds in Lansing
Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich. 349, 371 n 18; 792 NW2d 686 (2010). MCR 2.605
incorporates traditional restrictions on justiciability, such as standing, ripeness, and mootness.
Id. at 125.
In Bryan v JPMorgan Chase Bank, 304 Mich. App. 708, 713; 848 NW2d 482 (2014), this
Court explained:
Pursuant to MCL 600.3240, after a sheriff’s sale is completed, a
mortgagor may redeem the property by paying the requisite amount within the
prescribed time limit. . . . “Unless the premises described in such deed shall be
redeemed within the time limited for such redemption as hereinafter provided,
such deed shall thereupon become operative, and shall vest in the grantee therein
named, his heirs or assigns, all the right, title, and interest which the mortgagor
had at the time of the execution of the mortgage, or at any time thereafter . . . .”
MCL 600.3236. If a mortgagor fails to avail him or herself of the right of
redemption, all the mortgagor’s rights in and to the property are extinguished.
[Citation omitted.]
In Bryan, the plaintiff sued the defendant bank, which was both the lender of the loan that
secured the mortgage and the purchaser of the property following the sheriff’s sale, to quiet title
and for unjust enrichment, deceptive or unfair practices, and wrongful foreclosure, alleging that
the defendant was not the owner of the indebtedness secured by the mortgage or the servicing
agent as required by Michigan law because the defendant failed to record its interest in the
property before the sheriff’s sale. Id. at 710-711. The plaintiff argued that the sheriff’s sale was
void ab initio. Id. at 711. The plaintiff filed her complaint after the expiration of the redemption
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period, but the plaintiff argued that she had standing to sue because of fraud or irregularity in the
foreclosure process due to the defendant’s failure to record its mortgage interest before the sale.
Id. The Bryan Court held that summary disposition for the defendant was proper because the
plaintiff lacked standing to bring her claims. Id. at 715. Moreover, the plaintiff failed to
demonstrate how any irregularity in the recording of the mortgage prejudiced her position to
preserve an interest in the property. Id. at 717-718.
As Judge Kelly found, this case is analogous to Bryan. There is no genuine issue of
material fact that plaintiff did not redeem the property within the statutory redemption period and
the redemption period expired before she filed this declaratory judgment action. Thus, pursuant
to Bryan, plaintiff never had standing to bring her claims. Once the redemption period ended,
the sheriff’s deed vested in Quicken, and Quicken was assigned all the “right and title” of
plaintiff that existed at the time she executed the mortgage. Hanson v Huetter, 339 Mich. 130,
133-134; 62 NW2d 663 (1954); see also MCL 600.3236. Fannie Mae later acquired that right
and title by quitclaim deed. Because plaintiff lacked standing to raise any questions about the
property in the declaratory judgment action (i.e., the relationship between defendants, the
identity of the noteholder, and whether she was entitled to a financial remedy from defendants),
summary disposition of plaintiff’s claim was proper pursuant to MCR 2.116(C)(10).1
Plaintiff makes numerous unpreserved claims on appeal, including allegations that: (1)
she did not sign the note, “Agent Nancy” signed it, (2) the default notice mailed to her was
unsigned, and (3) default was not proven beyond a reasonable doubt at a trial by jury. “This
Court will generally decline to address unpreserved issues unless a miscarriage of justice will
result from a failure to pass on them, . . . the question is one of law and all the facts necessary for
its resolution have been presented, or [it is] necessary for a proper determination of the case.”
Autodie, LLC v City of Grand Rapids, 305 Mich. App. 423, 431; 852 NW2d 650 (2014) (quotation
marks and citation omitted). No miscarriage of justice will result from the failure to address
plaintiff’s claims because, again, there is no genuine issue of material fact that plaintiff lacked
standing to bring them after the expiration of the redemption period.
Plaintiff also raises the additional unpreserved claim that the transfer between Quicken
and Fannie Mae for one dollar was constructive fraud and argues that fraud constitutes grounds
for relief from judgment under MCR 2.612(C)(1). Indeed, after the redemption period, a court
may equitably extend a mortgagor’s ability to file suit asserting rights or interest in the property
1
On appeal, defendants focus on the alternative basis for Judge Kelly’s dismissal that plaintiff
failed to satisfy the pleading requirements under the court rules. Given the lack of supporting
facts required by MCR 2.111(B)(1) and plaintiff’s failure to amend her complaint, Judge Kelly
did not err by concluding that summary disposition was also warranted on this basis under MCR
2.116(C)(8). Although defendants assert that summary disposition may also be affirmed on the
alternative grounds of collateral estoppel and res judicata, their arguments are unpreserved and
we decline to review them. Ligon v Detroit, 276 Mich. App. 120, 129; 739 NW2d 900 (2007)
(noting that an appellate court may decline to review an issue that was not raised in or decided by
the trial court).
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only upon a strong showing of fraud or irregularity. Sweet Air Investment, Inc v Kenney, 275
Mich. App. 492, 497; 739 NW2d 656 (2007); Schulthies v Barron, 16 Mich. App. 246, 247-248;
167 NW2d 784 (1969). “[D]efects or irregularities in a foreclosure proceeding result in a
foreclosure that is voidable, not void ab initio.” Kim v JPMorgan Chase Bank, NA, 493 Mich.
98, 115; 825 NW2d 329 (2012). Thus, parties seeking to set aside a foreclosure sale must show
not only fraud or irregularity in the foreclosure process, they also “must show that they were
prejudiced” by the alleged fraud or irregularity. Id. “To demonstrate such prejudice, they must
show that they would have been in a better position to preserve their interest in the property
absent” the fraud or irregularity. Id. at 115-116.
The allegedly fraudulent transfer plaintiff cites occurred well after the sheriff’s sale and
after expiration of the redemption period. Constructive fraud requires a misrepresentation to
induce detrimental reliance, Gen Electric Credit Corp v Wolverine Ins Co, 420 Mich. 176, 188-
190; 362 NW2d 595 (1984), but plaintiff does not allege that defendants made a representation
of any kind to her regarding this deed transfer. She also makes no argument establishing that she
would have been in a better position to preserve her interest absent this transfer or the alleged
fraud. Therefore, even if plaintiff had properly preserved her claim, she has failed to
demonstrate the requisite prejudice to set aside the foreclosure sale.
Plaintiff also argues on appeal that Judge Kelly lacked authority to discharge the lien
because only the declaratory judgment action was before him and nobody raised the issue of the
claim of lien. Again, we disagree. MCR 2.605(F) provides that “[f]urther necessary or proper
relief based on a declaratory judgment may be granted, after reasonable notice and hearing,
against a party whose rights have been determined by the declaratory judgment.” Shuler v Mich
Physicians Mut Liability Co, 260 Mich. App. 492, 520; 679 NW2d 106 (2004). “[T]he language
of MCR 2.605 is permissive rather than mandatory; thus, it rests with the sound discretion of the
court whether to grant declaratory relief.” PT Today, Inc v Comm’r of the Office of Fin & Ins
Servs, 270 Mich. App. 110, 141; 715 NW2d 398 (2006). “Actions for declaratory relief are
intended to minimize avoidable losses and the unnecessary accrual of damages.” Durant v
Michigan, 456 Mich. 175, 208-209; 566 NW2d 272 (1997).
Once the trial court ruled that plaintiff lacked any standing related to the property, it had
discretion under MCR 2.605(F) to grant further necessary relief to minimize further losses or
damages. Specifically, because plaintiff’s rights in the property were extinguished, she was not
entitled to reimbursement for investments in the property. Discharge of the claim of lien related
to those investments therefore avoided further damages to defendants by the cloud on the title to
the property. Plaintiff had notice of the discharge of the claim of lien, and a chance to object to
the discharge in a written pleading and at a hearing. Thus, Judge Kelly did not abuse his
discretion by discharging the claim of lien pursuant to MCR 2.605(F).
III. DOCKET NO. 329752
In Docket No. 329752, plaintiff again asserts that Judge Kelly erred by discharging the
claim of lien and, therefore, the discharge was not a proper basis for Judge West’s dismissal of
the foreclosure of the claim of lien action. As we concluded earlier, Judge Kelly did not abuse
his discretion by discharging the claim of lien. In the foreclosure action, defendants filed a
motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). Judge West decided
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this case under MCR 2.116(C)(10) looking beyond the pleadings, specifically at Judge Kelly’s
order discharging the claim of lien. Kefgen, 241 Mich. App. at 616. As a result of the discharge,
there was no genuine issue of material fact remaining regarding the claim of lien and defendants
were entitled to judgment as a matter of law. Judge West did not err by granting defendants’
motion for summary disposition.2
Plaintiff claims that summary disposition violated her constitutional rights to a jury trial,
Const 1963, art 1, § 14, prohibitions against involuntary servitude, US Const, Am XIII, and
Const 1963, art 1, § 9. But “[s]ummary disposition does not violate a party’s right to a jury trial
because that right extends only to cases in which there are genuine issues of fact for the jury.
Lowrey v LMPS & LMPJ, Inc, 313 Mich. App. 500, 507; 885 NW2d 638 (2015). Moreover,
pursuant to the mortgage, plaintiff had an obligation to maintain the property to prevent
deterioration. To the extent that plaintiff claims that she performed services, such as the removal
of trees, painting, and lawn care, plaintiff had alternatives to personally performing these
services, such as hiring contractors. Thus, even if the alternatives were distasteful or less
attractive than the services, she cannot establish involuntary servitude. Blair v Checker Cab Co,
219 Mich. App. 667, 673; 558 NW2d 439 (1996). Because plaintiff cannot establish plain error
with regard to these constitutional claims, reversal is not required.
Plaintiff also objects to Judge Kelly’s refusal to recognize her as “Agent Nancy” at the
June 29, 2015 hearing in the declaratory judgment action. The following exchange occurred at
that hearing:
Plaintiff. For the record, Agent Nancy respectfully objects to the
following:
Trial court. I don’t recognize you as an agent of yourself. I recognize you
as a person that has come before this Court and has submitted to the Court’s
jurisdiction. You may proceed in that fashion.
Plaintiff. Okay. Agent Nancy objects to - -
Trial court. Again, you’re not an Agent.
Plaintiff. Nancy.
Trial court. You’re Mrs. Gardner.
Plaintiff claims that Judge Kelly violated her right to the freedom of speech, US Const, Am I,
and Const 1963, art 1, § 5, and her religious beliefs, Const 1963, art 1, § 4. She explains that
2
In addition, plaintiff’s lack of standing was a valid alternative basis for dismissing the
foreclosure action under MCR 2.116(C)(10). Defendants again assert that summary disposition
was appropriate on the grounds of collateral estoppel and res judicata, but their arguments are
unpreserved and we decline to review them. Ligon, 276 Mich. App. at 129.
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Agent Nancy is an agent of the Almighty God acting on behalf of “property you refer to as
Nancy J. Gardner.”
An “agent” is “ ‘a person having express or implied authority to represent or act on behalf
of another person, who is called his principal.’ ” Stephenson v Golden, 279 Mich. 710, 734; 276
N.W. 849 (1937), quoting Bowstead, Agency (4th ed), p 1. According to this definition, plaintiff
could not serve as an agent for herself, only “another person.” And even if plaintiff could serve
as an agent for herself, she could not appear in court in that capacity unless she was a licensed
attorney. See MCL 600.916 (unauthorized practice of law); Cobb v Judge of Superior Court of
Grand Rapids, 43 Mich. 289; 5 N.W. 309 (1880) (a party to an action in a court of record cannot
appear therein by an “agent” not licensed as an attorney). Therefore, Judge Kelly did not err by
instructing plaintiff to refer to herself as “Mrs. Gardner” instead of Agent Nancy. Moreover,
even if plaintiff could establish a violation of her constitutional rights from this instruction, she
cannot establish that the violation was prejudicial. She does not argue that she was denied the
opportunity to make any arguments. Rather, following this interchange, plaintiff reiterated the
contents of her complaint and addressed defendants’ arguments. Regardless of her constitutional
claim, the claim of lien had already been discharged, plaintiff lacked standing to make claims
against the property, and summary disposition was proper.
IV. DOCKET NO. 330964
In Docket No. 330964, plaintiffs argue that Judge Kelly erred by dismissing their
quitclaim deed action because they lacked the capacity to sue as “Agent Nancy” and “Agent
Don.” In his order, Judge Kelly did not cite a court rule as the basis for his decision. Defendants
filed a motion for summary disposition under MCR 2.116(C)(7), (8), and (10), not MCR
2.116(C)(5) (capacity to sue). It would therefore appear from this context that Judge Kelly
granted summary disposition pursuant to MCR 2.116(I)(1) (“If 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, the court shall render judgment without delay.”). Kefgen, 241
Mich. App. at 616.
MCR 2.201(C) pertains to the capacity to sue and provides:
(C) Capacity to Sue or be Sued.
(1) A natural person may sue or be sued in his or her own name.
(2) A person conducting a business under a name subject to certification
under the assumed name statute may be sued in that name in an action arising out
of the conduct of that business.
(3) A partnership, partnership association, or unincorporated voluntary
association having a distinguishing name may sue or be sued in its partnership or
association name, in the names of any of its members designated as such, or both.
(4) A domestic or a foreign corporation may sue or be sued in its corporate
name, unless a statute provides otherwise.
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(5) Actions to which the state or a governmental unit (including but not
limited to a public, municipal, quasi-municipal, or governmental corporation, an
unincorporated board, a public body, or a political subdivision) is a party may be
brought by or against the state or governmental unit in its own name, or in the
name of an officer authorized to sue or be sued on its behalf. An officer of the
state or governmental unit must be sued in the officer’s official capacity to
enforce the performance of an official duty. An officer who sues or is sued in his
or her official capacity may be described as a party by official title and not by
name, but the court may require the name to be added.
Likewise, MCL 600.2051(1) provides, “Any natural person may sue or be sued in his own
name.”3 There is no evidence in the record that “Agent Nancy” or “Agent Don” are Nancy J.
Gardner’s and Donald Gardner’s own names. Relying on the court rule’s use of the word “may,”
plaintiffs argue that the capacities in MCR 2.201(C) do not amount to an exclusive list and others
have the capacity to sue. The word “may” does, in fact, signify a permissive provision. Walters
v Nadell, 481 Mich. 377, 383; 751 NW2d 431 (2008). But the word “may” permits the listed
persons or entities, including a natural person in his or her own name, to be sued. Nothing in the
plain language of the court rule suggests that this is a non-exclusive list. On the contrary, “[t]his
Court recognizes the maxim expressio unius est exclusio alterius; that the express mention in a
statute of one thing implies the exclusion of other similar things.” Bradley v Saranac
Community Schools Bd of Ed, 455 Mich. 285, 298; 565 NW2d 650 (1997). Because the court
rule does not include a provision for plaintiffs to sue or be sued under the circumstances they
allege—persons acting as uncertified agents on behalf of themselves—they cannot establish the
capacity to sue under MCR 2.201(C).4
Referencing the Bible and their service to God, plaintiffs also claim some capacity to sue
as “personal representatives” under MCR 2.201(B), which provides, in relevant part:
(B) Real Party in Interest. An action must be prosecuted in the name of
the real party in interest, subject to the following provisions:
3
Black’s Law Dictionary (9th ed) defines the term “natural person” as “[a] human being.”
4
Plaintiffs argue that an agent falls within the definition of “person” in the Elliot-Larsen Civil
Rights Act, MCL 37.2101 et seq., and the Uniform Commercial Code (UCC), MCL 440.1101 et
seq., but even if those definitions apply to MCR 2.201(C), “Agent Nancy” and “Agent Don” are
not plaintiffs’ own names. Notably, plaintiff relied on the UCC in the prior Sixth Circuit appeal
and that court concluded that the UCC does not apply to mortgage foreclosures. Gardner, unpub
opn at 365.
Plaintiffs cite the definition of “agency” in MCR 7.102(1) (“ ‘agency’ means any
governmental entity other than a ‘trial court,’ the decisions of which are subject to appellate
review in the circuit court”) and argues that “Agent Nancy” and “Agent Don” are government
entities belonging to the United States of America. But again, the record does not establish that
“Agent Nancy” and “Agent Don” are plaintiffs’ own names under MCR 2.201(C).
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(1) A personal representative, guardian, conservator, trustee of an express
trust, a party with whom or in whose name a contract has been made for the
benefit of another, or a person authorized by statute may sue in his or her own
name without joining the party for whose benefit the action is brought.
But again, there is no evidence in the record that “Agent Nancy” or “Agent Don” were legally
appointed as a personal representative, or to act in some other representative capacity, for Nancy
J. Gardner and Donald Gardner. See, e.g., MCL 700.1403, MCL 700.3307, and MCL 700.3614.
Accordingly, plaintiffs have not demonstrated that they had the capacity to sue in a
representative capacity. See Warren v Howlett, 148 Mich. App. 417; 383 NW2d 636 (1986) (the
plaintiff lacked the capacity to sue on behalf of the decedent’s estate because he was not
appointed as personal representative until nine days after filing suit).
Plaintiffs claim that they could sue as “Agent Nancy” and “Agent Don” because “Agent
Nancy” signed the mortgage and note. Plaintiffs’ claim is inconsistent with the record. The
copies of the mortgage and note in the lower court records were signed by “Nancy J. Gardner.”
Therefore, neither “Agent Nancy” nor “Agent Don” have any interest in the controversy by
virtue of those documents.
Plaintiffs claim that Judge Kelly erred by reasoning that only attorneys could represent
parties. But MCL 600.916 prohibits the unauthorized practice of law. By holding themselves
out as agents representing Nancy J. Gardner and Donald Gardner and filing legal documents as
such, rather than parties appearing in propria persona, plaintiffs effectively represented
themselves as attorneys without license and authority.
In their reply brief on appeal, plaintiffs object to Fannie Mae’s attorney’s involvement as
a third-party intervener. Plaintiffs’ argument is inconsistent with the record on appeal. Nicholas
Tatro filed an appearance as an attorney for Fannie Mae consistent with MCR 7.204(G).
In sum, Judge Kelly properly dismissed plaintiffs’ action for lack of capacity to sue under
MCR 2.116(I)(1). In addition, just as in Docket Nos. 328185 and 329752, plaintiffs’ lack of
standing was a valid alternative basis for dismissing the action under MCR 2.116(C)(10).
V. SANCTIONS
In all three cases, defendants argue that this Court should impose sanctions for a
vexatious appeal. Defendants’ requests are not properly before this Court, because they were not
made in a motion filed under MCR 7.211(C)(8). See MCR 7.216(C)(1); Bonkowski v Allstate
Ins Co, 281 Mich. App. 154, 181; 761 NW2d 784 (2008). Pursuant to MCR 7.211(C)(8),
defendants may file a motion requesting damages or other disciplinary action “at any time within
21 days after the date of the order or opinion that disposes of the matter that is asserted to have
been vexatious.” Therefore, defendants’ request is denied without prejudice.
Affirmed.
/s/ Deborah A. Servitto
/s/ Cynthia Diane Stephens
/s/ Amy Ronayne Krause
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