Now Accepting New Clients!

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.


Are you involved in a real estate dispute in Michigan? Are you seeking resolution to a property litigation matter?

If you are facing a residential or commercial real estate issue, seek the advice of an experienced and skilled real estate litigation attorney at Aldrich Legal Services.

Contact Aldrich Legal Services

Speak to a Pro: (734) 404-3000


Wills and Trusts

Originally posted on: 02/14/2014 Aldrich Legal Service provides legal advice and representation for residents in Plymouth, Ann Arbor, and Southeast Michigan. We also review recent legal cases to examine what took place and what we can...

REAL ESTATE 68: Holding that plaintiffs-buyers’ allegations of fraud in this case arising from the sale of a residence did not preclude the trial court from granting defendants’ motion for summary disposition based on a release, the court affirmed.

This cause of action arises from plaintiffs’ purchase of a residence from defendant, who had rights in the house under a land contract from co-defendant, the legal owner of the house. Before the house was for sale, in January 2018, an upstairs...

REAL ESTATE 65: Determining that it could not conclude the trial court erred in its factual findings, and that it did not err in reforming a 2005 deed, the court affirmed the ruling that defendants were fee simple owners of the disputed 50-foot area

This case arose from a real-property dispute between brothers, as well as their respective wives. After a bench trial, the trial court rendered its findings of fact. The trial court determined that plaintiffs did not prove that excluding the...

FAMILY LAW 58: The trial court did not err by denying defendant-father’s motion to change custody and modify his parenting time of the parties’ child without having an evidentiary hearing to determine if there was proper cause or a change in circums

This case arose from a custody and parenting-time dispute between plaintiff-mother and father over their minor child. After father failed to respond to the paternity complaint within the 21 days of receipt of the complaint, mother filed an affidavit...

DIVORCE 53: Although the court affirmed the trial court’s decisions to deny defendant’s motions to set aside the default and the default JOD, it vacated the portions of the default JOD as to the distribution of marital property, custody, parenting t

Plaintiff filed for divorce. Defendant filed an answer and a counterclaim for divorce.  Plaintiff and defendant were both ordered to appear at the settlement conference. After defendant failed to appear, the trial court entered a default. Soon...

FAMILY LAW 53: The trial court erred by treating the parties’ GAL as an LGAL and denying the parties the right to question her at a hearing; however, the trial court did not err in requiring the parties to compensate the GAL for her services.

Plaintiff and Defendant were never married, but share a young son who was born in 2016. The parties have battled over custody, child support, and other parenting issues ever since. In the spring of 2019, the parties filed competing motions to modify...

The Difference Between Theft, Robbery, and Burglary

Original Post: 1/11/2019 Often, burglary, robbery, and theft are used interchangeably even though there are distinct differences between all of them. Though, what all three do have in common is they may involve the unlawful taking of...

REAL ESTATE 59: Concluding that the one-year period contained in the parties’ home purchase agreement was not a statute of limitations, but rather akin to a statute of repose, and that it was plain and unambiguous, the court held that it barred plai

BACKGROUND On March 12, 2016, the parties entered into an agreement for the purchase of defendants’ home. The purchase agreement contained the following clause: TIME FOR LEGAL ACTION: Buyer and Seller agree that any legal action against...

Don't let a bad decision, unfair contract, or a messy divorce get in the way of a promising future!
Contact the experienced team at Aldrich Legal Services today to schedule your free initial
and secure reliable and trustworthy representation today!
Get the Help You Need From a Team You Can Truly Count On: (734) 404-3000