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REAL ESTATE 37: Trial court can set aside a foreclosure sale if there is a strong case of fraud or irregularity.

Plaintiff secured two mortgages. The first mortgage was in the amount of $297,050 and the second mortgage arose from a fixed-rate balloon note in the amount of $74,250. On September 1, 2008, plaintiff entered into a loan modification agreement F Company. The loan modification agreement defined and named F Company as the “Lender” of funds in the amount of $73,745.12, which was the amount payable under the note and mortgage, and stated that the borrower promised to pay the Unpaid Principal Balance, plus interest, to the order of Lender.

On August 31, 2016, the first mortgage assigned to S Company, all interest it had with regard to plaintiff’s second mortgage. On February 16, 2017, a Notice of Foreclosure on the second mortgage was published in the Oakland County Legal News, and at some point, plaintiff received a copy of the notice which had been attached to her premises.

The Notice of Foreclosure continued that the mortgage would be foreclosed by a sale of the subject premises on March 21, 2017, which would be followed by a six-month redemption period. The sale was subsequently adjourned until July 18, 2017, at which time S Company, purchased the property for $88,000 under a sheriff’s deed.

Proceeding in propria persona, on December 7, 2017, before the six-month redemption period expired, plaintiff filed a quiet title action. Plaintiff alleged that the first mortgage had no beneficial interest in her property to assign to the foreclosing entity, S Company, after she entered into the loan modification agreement with F Company, which was not affiliated with the first mortgage.

When the statutory requirements for mortgage foreclosure are met, a trial court generally lacks authority to set aside a foreclosure sale except in a strong case of fraud or irregularity.  In this case, plaintiff established her claim that S Company did not own an interest in her indebtedness that was secured by the second mortgage because F Company had owned the interest and that debt was paid, a significant irregularity would exist to set aside the foreclosure sale.

In summary, the trial court erred in granting defendants’ motion for summary disposition under the circumstances of this case. Therefore, the appeals court reversed the decision to grant defendants’ motion and remanded this matter to the trial court for further proceedings.

Whether you are trying to save your home from foreclosure or your home loan is upside down and you are unsure of what you should do, you can find the sound advice and helpful support you require at Aldrich Legal Services in Plymouth, Michigan. We have helped many people find solutions to the real estate issues that you now face.

Contact us today to schedule a free consultation and learn more about options that may be available to you.

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