On August 25, 2011 the Michigan Court of Appeals published a final opinion in Richard v. Schneiderman & Sherman, P.C., No. 297353. (The court had previously issued an opinion on August 11, 2011 which it later vacated on August 22, 2011.) The opinion is important because it confirms that Saurman (previously discussed on this blog) is retroactive in nature; however, it limits the application of Saurman by requiring a mortgagor to challenge the foreclosure by advertisement during the foreclosure or eviction proceedings. The court specifically points out that that if the foreclosed property has already been sold to a bona fide purchaser then Saurman does not apply.
It’s an interesting application of retroactive law, on one hand the Court of Appeals says the foreclosure proceedings are void ab initio, yet apparently only challengeable if the mortgagor challenged the proceedings promptly during the foreclosure or eviction proceedings. The question remains, even if a mortgagor can’t void the foreclosure proceedings using Saurman, are they entitled to damages through other equitable remedies?
These opinions have wrecked havoc on the foreclosed real estate market, including but not limited to the availability to procure title insurance on any property foreclosed upon by MERS. If you are purchasing a foreclosed property please give us a call to set up an appointment. For more information contact Fraser Trebilcock attorney Charles D. Drayton at 517.377.0822 or firstname.lastname@example.org.