This case arises out of a long running dispute over a property. Plaintiff has previously attempted to avoid liability on the mortgage and to avoid foreclosure in a number of different lawsuits, all of which have been unsuccessful.
On December 2, 2016, the bank (defendant) filed a motion for summary disposition under MCR 2.116(C)(7), MCR 2.116(C)(8), and MCR 2.116(C)(10), arguing that the eviction, lockout, and underlying order of eviction were valid and proper because defendant was entitled to possession as owners of the property, and because plaintiff did not have an appeal pending from the judgment of possession at the time the above events occurred. Moreover, defendant asserted that plaintiff’s underlying arguments disputing the judgment of possession are barred by preclusion given that plaintiff has previously litigated those claims or had the opportunity to bring those claims in previous litigation, but did not.
On December 21, 2016, the trial court entered a summary disposition scheduling order, which ordered that there would be a hearing regarding the bank’s (defendant) motion for summary disposition on February 15, 2017 at 11:00 a.m. It was further ordered that plaintiff’s response to the motion was due on February 1, 2017. The order continued, failure to file a response by this date will be considered as consent to the relief requested.
If a party fails to comply with a court order, upon motion by an opposing party, the court may enter a default against the noncomplying party.
On February 15, 2017, the trial court held a hearing on defendant’s motion for summary disposition. At the hearing, the trial court began by confirming with defendant’s counsel that this was the correct time and date for the summary disposition hearing, and further confirmed with defendant’s counsel that plaintiff was properly served with the time and date of the motion hearing back in December.
The trial court then made the following statement: Plaintiff is not here today and this matter was set for 11:00 and it is now 11:36 and there is no one else present in the courtroom. That being said, the Court will grant the relief set forth in the motion for summary disposition, consistent with the pleading, as well as consistent with [Marquette, 114 Mich App at 92], in that the plaintiff failed to appear and did not respond. The trial court later entered an order dismissing the case with prejudice on February 17, 2017.
In sum, the court enough evidence to conclude that plaintiff was served with defendant’s motion on December 2, 2016. Hence, the 2½ months between service of the motion on plaintiff and the February 15, 2017 motion hearing, indicates plaintiff had adequate time to respond to the motion. Further, the trial court’s scheduling order gave plaintiff until February 1, 2017, to respond via briefing, which supports the conclusion that plaintiff had adequate time to respond.
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