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REAL ESTATE 67: The court held that the trial court plainly erred by deciding that there was no genuine issue of material fact as to the mortgage interest rate.


Many of the facts are undisputed. In November 2007, Defendant entered into a mortgage agreement with Plaintiff, in which Defendant agreed to lend Plaintiff $500,000 secured by certain real property located in Livingston County. Both parties filed suit.  These two cases were subsequently consolidated by the trial court. In August 2018, Plaintiff filed a motion for partial summary disposition under MCR 2.116(C)(10), which is at the heart of this appeal. Plaintiff argued that there was no genuine issue of material fact concerning whether the amount Defendant Mortgages paid for the property at the foreclosure sale exceeded the amount that was actually due by $333,439.86. In support of its motion, it attached the mortgage, an affidavit from a certified public accountant (CPA), and the handwritten ledger. Defendant Mortgages did not file a response, and it failed to appear at the hearing.  The trial court granted Plaintiff’s motion “[b]ased on the . . . argument of Plaintiff’s counsel as to the amount of money that’s owed his client and the reasons set forth there in the papers, . . . there being no response by way of any answer or affidavit or documentary evidence showing that there are genuine issues for trial.” Plaintiff stipulated to the dismissal of its remaining claims in that action, and the trial court accordingly dismissed the claims. This addressed all claims in that case, and the trial court entered a final judgment for that case on September 13, 2018. The other action filed by Defendant Mortgages against Plaintiff, however, remained pending. Defendant’s counsel filed a motion for relief from judgment under MCR 2.612 or for amendment of the judgment under MCR 2.611, arguing that the September 2018 order could not constitute a final order because the two cases had been consolidated and Defendant’s claims against Plaintiff were still pending. Defendant Mortgages failed to advance any arguments concerning the interest rate or the grant of partial summary disposition. The trial court denied the motion. This appeal followed.


On appeal, Defendant Mortgages raises for the first time its arguments concerning the interest rate. It argues that the documentation created an issue of fact regarding whether the interest rate was simple or compound and that, accordingly, the trial court erroneously granted partial summary disposition.  Given that Defendant Mortgages failed to raise this issue in the trial court, it is unpreserved and, as Plaintiff argues, ordinarily not subject to review. Because we find merit in Defendant’s arguments, we have decided to address this issue despite the failure to preserve it. “Unpreserved claims are reviewed for plain error, which ‘occurs at the trial court level if (1) an error occurred (2) that was clear or obvious and (3) prejudiced the party, meaning it affected the outcome of the lower court proceedings.’ We review de novo the trial court’s decision on a motion for summary disposition.

Next, Defendant Mortgages argues that the documentation provided by Plaintiff was insufficient support for its motion under MCR 2.116(C)(10). Defendant Mortgages contends that, in fact, the documentation provided by Plaintiff created an issue of material fact even without Defendant’s response. We agree. A motion is properly granted pursuant to MCR 2.116(C)(10) when “there is no genuine issue with respect to any material fact and the moving party is entitled to judgment as a matter of law.” Therefore, we hold that the trial court plainly erred by determining that there was no genuine issue of material fact regarding the interest rate. The parties’ course of conduct, the ledger, the CPA’s affidavit, and the mortgage were insufficient to show that the interest rate was indisputably simple interest. It was therefore in error to grant Plaintiff’s motion for partial summary disposition.


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