STATE OF MICHIGAN
COURT OF APPEALS

RESIDENTIAL FUNDING CO, LLC, f/k/a
RESIDENTIAL FUNDING CORPORATION,

Plaintiff-Appellee,

v

GERALD SAURMAN,

Defendant-Appellant.

BANK OF NEW YORK TRUST COMPANY,

Plaintiff-Appellee,

v

COREY MESSNER,

Defendant-Appellant.

Before:  WILDER, P.J., and SERVITTO and SHAPIRO, JJ.

SHAPIRO, J.

These consolidated cases each involve a foreclosure instituted by Mortgage Electronic Registration System (MERS), the mortgagee in  both cases.  The sole question presented is whether MERS is an entity that qualifies under MCL 600.3204(1)(d)  to foreclose by advertisement on the subject properties, or if it must instead seek to foreclose by judicial process.  We hold that MERS does not meet the requirements of MCL 600.3204(1)(d) and, therefore, may not foreclose by advertisement.

CONCLUSION
Defendants were entitled to judgment as  a matter of law because, pursuant to MCL 600.3204(1)(d), MERS did not own the indebtedness, own an interest in the indebtedness secured by the mortgage, or service the mortgage.  MERS’ inability to comply with the statutory requirements rendered the foreclosure proceedings in both cases void ab initio.  Thus, the circuit courts improperly affirmed the district courts’ decisions to proceed with eviction based upon the foreclosures of defendants’ properties.

In both Docket No. 290248 and 291443, we reverse the circuit court’s affirmance of the district court’s orders, vacate the foreclosure  proceedings, and remand for further proceedings consistent with this opinion.  We do not retain jurisdiction. Defendants, as the prevailing parties, may tax costs.  MCR 7.219(A).

Full opinion below…

Docket here…

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4closureFraud.org

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Michigan Court of Appeals – MERS May NOT Foreclose by Advertisement