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When notice of foreclosure process is insufficient, foreclosure may be voidable

Holding that the notice the defendants provided to the plaintiffs as to the foreclosure process was insufficient to inform plaintiffs of their right to modify the mortgage loan to avoid foreclosure, the court reversed the trial court's order granting defendants summary disposition and remanded for further proceedings. The case revolved "around the fact that plaintiffs claim they never received notice of the foreclosure process" from the law firm that handled the foreclosure process for defendant-CCO Mortgage. Defendants claimed that the fact that they mailed the notices was enough to satisfy the statutory requirements of MCL 600.3204(4) and MCL 600.3205a(1).The court concluded that "in order for a plaintiff to establish a claim that notice was insufficient pursuant to MCL 600.3204(4)(a) and MCL 600.3205a, the borrower must show that the notice did not apprise the borrower of his right to modify." Plaintiffs alleged from the beginning that they never received notices from defendants. If they "never received notice, it was impossible for plaintiffs to request a meeting to negotiate a modification" in accordance with MCL 600.3205a(1). "Notice by mail is adequate when it is 'directed to an address reasonably calculated to reach the person entitled to notice.'" It is presumed in Michigan that "'a letter mailed in the due course of business is received.'" However, "'this presumption can be rebutted with evidence that the letter was not received.'" The evidence showed that "notices sent to plaintiffs by certified mail were not delivered to them and were sent back to the post office. Further, plaintiffs contended they never received notices sent by first-class mail" and the law firm "lacked an established record keeping practice to track returned first-class mail." Thus, the court reversed the trial court's ruling that no genuine issue of material fact existed as to notice. "A defect or irregularity in the foreclosure proceeding that results in a foreclosure is voidable, but the defect must be prejudicial." The evidence showed that plaintiffs were communicating with CCO about "modification when their home was foreclosed but had no definitive answer as to whether they would be granted a modification or not. Because plaintiffs did not receive the required statutory notices before the foreclosure proceedings began, they were unable to claim the statutory protections" within the 14 days from the mailing of the notices. On remand, the trial court should consider whether, given that they were already trying to modify their mortgage, they "would have taken the additional opportunity to mediate if it were offered to them."

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