STATE OF MICHIGAN

IN THE CIRCUIT COURT OF THE COUNTY OF WAYNE

____________

NATIONAL CITY BANK,

Plaintiff-Appellee,

vs. Hon. Robert L .Ziolkowski

Case No. 09-007640 AV

THELMA BELLE, and
ANITA BELLE, 36th Dist. Ct. Case # 08-311916 LT
Defendants-Appellants.
__________________________________/

APPELLANTS’ BRIEF
On Appeal from District Court Order of February 26, 2010

ORAL ARGUMENTS SCHEDULED Thursday, June 10, 2010 at 2:00 p.m.

ARTHUR C. KIRKLAND, JR. GREGORY MACKAY (P62030)

Attorney at Law (P27551) TROTT & TROTT, P.C.
Attorney for Defendants/Appellants Attorney for Plaintiff/Appellee
Post Office Box 35676 31440 Northwestern Hwy., Ste. 200
Detroit, Michigan Farmington Hills, MI 48334
(313) 909-5895 (248) 723-6476

April 27, 2010

Page 1 of 27
Table of Contents

Table of Authorities.........................................................................................................................3
Jurisdictional Statement...................................................................................................................4
Statement of Questions....................................................................................................................5
Statement of Facts............................................................................................................................6
Argument I.....................................................................................................................................12
Standard of Review....................................................................................................................12
Analysis.....................................................................................................................................12
Argument II...................................................................................................................................22
Standard of Review....................................................................................................................22
Analysis.....................................................................................................................................22
Relief Requested............................................................................................................................24
Proof of Service.............................................................................................................................25
Exhibits..........................................................................................................................................26

Page 2 of 27
Table of Authorities

Cases
City of Lake Angelus v Oakland Co Road Comm’n, 194 Mich App 220, 224; 486 NW2d 64
(1992).........................................................................................................................................15
Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993)......................................................15
Federal National Mortgage Association v. Strother, case number 09-C2299-LT in the 35th
District Court of Michigan...................................................................................................18, 26
In Re Antonio Attard, case number 08-57422 and Attard v. Wells Fargo Bank, adversarial
proceeding case number 08-5064 in the U.S. Bankruptcy Court for Eastern Michigan.....20, 27
In re Jude, 228 Mich App 667, 670; 578 NW2d 704 (1998)........................................................12
Miller v. Inglis, 223 Mich.App. 159, 567 N.W.2d 253...........................................................13, 23
PHH Mortgage Corporation v. Cude, case number 09-02-2565 LT in the 23rd District Court of
Michigan........................................................................................................................18, 19, 27
Reitmeyer v Schultz Equipment & Parts Co, Inc, 237 Mich App 332, 336; 602 NW2d 596 (1999)
...................................................................................................................................................22
Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995).....................................15
Statutes
11 U.S.C. §1322(c)(1)...................................................................................................................20
MCL 51.70.....................................................................................................................6, 16, 18, 19
MCL 51.72.....................................................................................................................................17
MCL 51.73.................................................................................................................................6, 14
MCL 600.2932...............................................................................................................................19
MCL 600.3216...........................................................................................................................6, 15
MCL 600.3232...........................................................................................................................6, 14
MCL 8.3a; MSA 2.212(1).............................................................................................................15
Rules
MCR 2.116(C)(10)........................................................................................................................19
MCR 2.612(C).............................................................................................................12, 13, 22, 23
MCR 2.625....................................................................................................................................24
MCR 4.201......................................................................................................................................6
MCR 4.201(N).................................................................................................................................4
MCR 4.201(M)(1)(b).....................................................................................................................22
MCR 7.101(A).................................................................................................................................4
MCR 7.101(B)(1) ...........................................................................................................................4
MCR 7.101(P)..................................................................................................................................7

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Jurisdictional Statement
The Circuit Court has jurisdiction over this Claim of Appeal pursuant to MCR 4.201(N)

and MCR 7.101(B)(1). This appeal is from the Judgment for Possession and the February 26,

2010 Opinion and Order entered in 36th District Court Case No. 311916 LT.

Page 4 of 27
Statement of Questions

I. Did the trial court err in ruling that the Appellants failed to present any new evidence

or reason that the court’s initial ruling that granted the Possession Judgment was

incorrect, when Appellants presented undisputed documentary evidence that the

sheriff deed was defective and void, because the person conducting the sheriff sale

and signing the sheriff deed was not properly appointed, or authorized to do so, in

accordance with Michigan law?

II. Would substantive due process, under the Michigan and U.S. Constitutions, dictate

that an escrow order take into consideration the prejudice to the Appellants due to

their indigency and their high likelihood of prevailing on the merits as weighed

against the relatively little or no prejudice to the Appellee?

Page 5 of 27
Statement of Facts

1. This appeal arises from a summary proceeding to recover possession of premises

under MCR 4.201 in 36th District Court filed on April 11, 2008 after a purported

sheriff sale and deed executed on August 29, 2007, for the property commonly known

as 19935 Vaughan in Detroit, Wayne County, Michigan. The sheriff sale and sheriff

deed were invalid because the sale was not conducted and the sheriff deed was not

executed by a person authorized to do so under MCL 600.3216, MCL 600.3232,

MCL 51.70, and MCL 51.73. (Please note Paragraphs 9 and 10 of this Statement of

Facts, infra.). The trial court granted a Judgment of Possession on March 23, 2009, at

which time the Defendants’ Motion to Dismiss was denied for reasons stated on the

record. (See Exhibit 1, the 36 District Court Register of Actions dated April 12,

2010. See Exhibit 2 for a copy of the Judgment of Possession and Exhibit 3 for the

Order Denying the Motion to Dismiss. )

2. A timely Claim of Appeal was filed on April 1, 2009. (See date entry on Register of

Actions in Exhibit 1.) Also filed with the Claim of Appeal was a $200 personal

bond. This bond was approved by the trial court in its Order of February 26, 2010.

(Although this bond is not on the Register of Actions, it became part of the record

below by means of numerous motions to endorse the bond, the first of such motions

being made on July 31, 2009, with corresponding Exhibit N attached to said motion

that displayed said bond as being date-stamped on April 1, 2009 by the 36th District

Clerk of Court. For convenience, a copy of this bond is annexed hereto as Exhibit 4.)

A $20 check in deposit for the February 10, 2009, March 10, 2009, and March 23,

Page 6 of 27
 2009 transcripts was made on April 1, 2009. (Although not part of the Register of

Actions, the request and deposit were raised in the July 31, 2009 Motion, and

corresponding Exhibits C and D were attached to that motion. For convenience, a

copy of the Request for Transcript and a copy of the $20 unendorsed check are

annexed hereto as Exhibit 5.)

3. On April 14, 2009, the trial court ordered a cash bond of $2500. Also on April 14,

2009, the trial court ordered an escrow of $900 per month, prorated to $480 for April

2009. (See Exhibit 1.) Both the bond and escrow orders were mailed to the

Defendants on May 5, 2009. (Although not part of the Register of Actions, the fact of

the 21-day delay in mailing the April 14, 2009 Orders for Bond and Escrow, was

raised repeatedly in numerous motions, the first of which was in the July 31, 2009

Motion and corresponding Exhibit M. For convenience, a copy of the envelope,

postmarked May 5, 2009, that contained the April 14, 2009 Orders for Bond and

Escrow, is annexed hereto as Exhibit 6.).

4. On May 1, 2009, the Defendants tendered a check for $175 to the court reporter.

(Although not part of the Register of Actions, the issue regarding the transcripts was

raised repeatedly, including in the July 31, 2009 Motion, with a corresponding copy

of Appellants’ check attached as Exhibit E. For convenience, a copy of the

unendorsed May 1, 2009 check is annexed hereto as Exhibit 7.) On May 26, 2009,

the trial court dismissed the appeal for nonpayment of the bond and escrow, citing

MCR 7.101(P). Numerous motions were made to set aside this dismissal, including

the July 31, 2009 Motion which contained a copy of the May 26, 2009 Order at

Exhibit I. For convenience, the May 26, 2009 Order Dismissing Appeal is attached

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 hereto as Exhibit 8. The district court’s order dismissing the appeal was postmarked

June 3, 2009. (Although not on the Register of Actions, this issue was presented in

the July 31, 2009 Motion with corresponding Exhibit J. A copy of the envelope

postmarked June 3, 2009 is annexed hereto with Exhibit 8.)

5. On June 10, 2009, the Defendants submitted $175 cash to the court reporter, in

substitution for the unendorsed $175 check. (Although not part of the Register of

Actions, this issue was raised repeatedly via motion, including in the July 31, 2009

Motion with corresponding Exhibit F. For convenience, a copy of the receipt for

$175 is annexed hereto as Exhibit 9.) Unbeknownst to the Appellants, on June 9,

2009, this court had dismissed the appeal for lack of the transcripts.

6. On June 11, 2009, the court reporter completed a Certificate of Ordering the

Transcript on Appeal. Although this certificate is not on the Register of Actions or in

the court file, a copy of the same is annexed hereto as Exhibit 9. On June 19, 2009,

the court reporter gave the transcripts to the Defendants/Appellants, as attested to in

numerous motions, including the July 31, 2009 Motion with corresponding Exhibit X

containing the coversheets and affidavits of three transcripts. For convenience, the

coversheet and court reporter’s affidavits are annexed hereto as Exhibit 11.

Although the Notice of Filing of Transcript and Affidavit of Mailing are not listed on

the Register of Actions or in the court file, a copy of this certificate is annexed hereto

as Exhibit 12.

7. The remaining parts of the Record are contained in Exhibit 1: On or about June 18,

2009, the Defendants/Appellants moved to disqualify the district court judge. Their

motion was denied on July 20, 2009. On July 29, 2009, Defendants initially moved

Page 8 of 27
 for Chief Judge Atkins to review the order denying disqualification, pursuant to MCR

2.003(C)(3)(a), but filed on July 31, 2009 a motion for reconsideration of the court’s

order denying disqualification. As part of the July 31, 2009 motion for

reconsideration, the Defendants also moved to vacate dismissal or to reinstate their

appeal, moved for an ex parte emergency stay, moved for relief from the possession

judgment and relief from the denial of motion to dismiss, moved for the court reporter

to be ordered to file her notice of filing transcripts, moved for the bond to be waived

due to Defendants’ indigency, and moved to modify the escrow order. On August 17,

2009, the district court denied the motion for reconsideration of its order denying

disqualification. Judge E. Lynise Bryant-Weekes scheduled the remaining motions to

be heard on August 28, 2009.

8. On August 26, 2009, the Defendants/Appellants moved for the Chief Judge to review

the disqualification motion. On or around October 14, 2009, the Defendants

supplemented their motion to the Chief Judge, asking for superintending control and

providing documentary evidence of the invalid sheriff sale. The Chief Judge denied

the motions on November 17, 2009. On December 8, 2009, Defendants/Appellants

moved for the Chief Judge to reconsider her denial of the motion to disqualify due to

the November 25, 2009 change in the Michigan Court Rules regarding

disqualification of judges. While the motion for reconsideration was pending before

the chief judge, on December 23, 2009, the district court notified the parties that she

would be ruling on Defendants/Appellants’ July 31, 2009 motion on January 11, 2010

and that the Plaintiff/Appellee had until January 8, 2010 to file its response to the

motion.

Page 9 of 27
9. On January 4, 2010, the Defendants filed amended motions to disqualify the judge,

for relief from judgment of possession and denial of motion to dismiss, for sanctions

and costs, to vacate order dismissing appeal/reinstate appeal, for emergency motion

for ex parte stay, to order filing of appeal transcripts and court reporter’s notice of

filing, to endorse bond filed by defendants on appeal, to modify the escrow order on

appeal, and request oral argument on these motions. The January 4, 2010 amended

motion clearly stated as grounds for their motion for relief from the Possession

Judgment and Relief from the Motion to Dismiss that mistake or fraud occurred

because of defects in the sheriff deed. Attached to the January 4, 2010 motion were

Exhibits F and G. Exhibit F was a copy of the sheriff deed, prepared by John T.

Harrison of Trott and Trott, the law firm representing the Appellee, and signed and

notarized by “Deputy Sheriff” Sterling K. Harrison. For convenience, a copy of the

August 29, 2007 sheriff deed is annexed hereto as Exhibit 13. The January 4, 2010

Amended Motion also included the “Appointment of Special Deputy Sheriff” for

Sterling K. Harrison and his Oath of Special Deputy Sheriff, attached to that motion

as Exhibit G. For convenience, a copy of Sterling Harrison’s appointment and oath of

office are annexed hereto as Exhibit 14. The appointment of special deputy sheriff

states that it appoints “Sterling K. Harrison special deputy sheriff during the year

ending December 31, 2008”, [emphasis added.] As indicated in Exhibit 13, the

Sheriff sale was conducted and the Sheriff Deed was executed by Sterling K.

Harrison, on August 29, 2007, prior to the effective date of the purported

appointment. The appointment is signed by Harold Cureton, the undersheriff. The

Page 10 of 27
 appointment, on the same page as the oath of special deputy, was notarized on June

18, 2006 and date-stamped as filed by the county clerk on June 21, 2006.

10. On January 8, 2010, the Chief Judge denied the motion for reconsideration of the

disqualification motion. (See Exhibit 1.) The Plaintiff/Appellee failed to respond to

the original motion filed on July 31, 2009 and the amended motion filed on January 4,

2010. On February 26, 2010, the trial court, purporting to resolve all pending

matters, reinstated the appeal, endorsed the April 1, 2009 original bond, and modified

the escrow to $500 per month. (A copy of the February 26, 2010 Order is annexed

hereto as Exhibit 15.) Regarding the Motion for Relief from the Possession

Judgment and Denial of Motion to Dismiss, the trial court’s February 26, 2010 Order

denied these motions on the basis that the Defendants failed to present the court with

any new evidence or reason that the court’s initial ruling was incorrect. Based on the

motions presented to the trial court before the February 26, 2010 Order that denied all

the motions except for reinstating the appeal, the lower court committed reversible

error regarding the undisputed documentary evidence of the defective appointment of

the special deputy sheriff, and the fact that the Sheriff sale was conducted and the

Sheriff Deed was executed prior to the effective date of the purported appointment of

the Special Deputy.

Page 11 of 27
Argument I

The trial court erred in ruling that the Appellants failed to present any new evidence or

reason that the court’s initial ruling that granted the Possession Judgment was incorrect, when

Appellants presented undisputed documentary evidence that the sheriff deed was defective and

void, because the person conducting the sheriff sale and signing the sheriff deed was not properly

appointed, or authorized to do so in accordance with Michigan law.

Standard of Review

This case involves a question of law, which is reviewed de novo on appeal. In re Jude,

228 Mich App 667, 670; 578 NW2d 704 (1998).

Analysis

This case involves a foreclosure by advertisement and purported sheriff sale on the

property commonly known as 19935 Vaughan in Detroit, Wayne County, Michigan. At issue is

whether Appellee’s sheriff deed, signed by Sterling K. Harrison on August 29, 2007, is valid.

(The sheriff deed appears at Exhibit 13.)

National City Bank obtained a Possession Judgment on March 23, 2009 based upon the

August 29, 2007 sheriff deed. Pursuant to MCR 2.612(C), Appellants initially moved for relief

from the Possession Judgment and denial of their motion to dismiss on July 31, 2009. However,

on January 4, 2010, as part of their amended motion to disqualify the trial court judge due to the

change in the Michigan court rules, Appellants also amended their motions for relief from

possession judgment and relief from the denial of their motion to dismiss and attached as

exhibits to their amended motions documentary evidence that the person conducting the sheriff

sale and signing the sheriff deed was not appointed to do so in accordance with applicable

Page 12 of 27
Michigan law. Appellee did not respond to either the original or amended motions, thereby

conceding to the documentary evidence.

On February 26, 2010, the trial court ruled that no new evidence or reason was presented

to the court that showed the court’s initial ruling was incorrect. It is unclear from the February

26, 2010 Order whether the trial court was ruling on the original or amended motion for relief

from possession judgment. Although it may be construed that the trial court did not rule on the

amended motion, it is an issue of law with all necessary facts properly before this Court, hence

the court may address the issue. Miller v. Inglis, 223 Mich.App. 159, 567 N.W.2d 253. The

question of law that remains is whether the sheriff sale was conducted by a person not authorized

to do so in accordance with Michigan law. Judicial economy and substantive justice would

direct that this court resolve the trial court order’s ambiguity in the Appellants’ favor and allow

this appeal to proceed on the merits in order for the Possession Judgment to be set aside or

vacated because of the defective and void sheriff deed.

As mentioned above, in both the original and amended motions, Appellants cited grounds

pursuant to MCR 2.612(C) as the basis for their motion for relief from the March 23, 2009

Possession Judgment. MCR 2.612(C) states,

(1) On motion and on just terms, the court may relieve a party or the legal representative
of a party from a final judgment, order, or proceeding on the following grounds:
(a) Mistake, inadvertence, surprise, or excusable neglect.
(b) Newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under MCR 2.611(B).
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an
adverse party.
(d) The judgment is void.
(e) The judgment has been satisfied, released, or discharged; a prior judgment on
which it is based has been reversed or otherwise vacated; or it is no longer equitable that
the judgment should have prospective application.
(f) Any other reason justifying relief from the operation of the judgment.
(2) The motion must be made within a reasonable time, and, for the grounds stated in
subrules (C)(1)(a), (b), and (c), within one year after the judgment, order, or proceeding

Page 13 of 27
 was entered or taken. A motion under this subrule does not affect the finality of a
judgment or suspend its operation.

In the January 4, 2010 amended motion, Appellants contended that, due to mistake, fraud,

and misrepresentation, a person who was not a deputy sheriff conducted the August 29, 2007

sheriff sale. Undisputed documentary evidence points to the fact that John T. Harrison, an

attorney for the law firm representing the Appellee, Trott and Trott, prepared the sheriff deed and

affidavit of auctioneer. As part of the affidavit, the auctioneer, Sterling K. Harrison, swore and

deposed before a notary that he was a deputy sheriff. This statement is false: The only

appointment that the Wayne County Clerk had on file for Sterling K. Harrison during the time

period of August 29, 2007 was his appointment as special deputy sheriff. (See Exhibit 14.) If

Sterling K. Harrison was a deputy sheriff, he should have had a written appointment on file with

the Wayne County Clerk. MCL 51.73 mandates,

Every appointment of an under sheriff, or of a deputy sheriff, and every

revocation thereof, shall be in writing under the hand of the sheriff, and shall be filed and
recorded in the office of the clerk of the county; and every such under sheriff or deputy
shall, before he enters upon the duties of his office, take the oath prescribed by the
twelfth article of the constitution of this state. But this section shall not extend to any
person who may be deputed by any sheriff to do a particular act only.

The appointment that Wayne County Clerk Cathy M. Garrett had on file and date-

stamped June 21, 2006 stated that Sterling K. Harrison was appointed special deputy sheriff for

the year ending December 31, 2008. This appointment was signed by Harold Cureton, the

undersheriff of Wayne County.

According to MCL 600.3232, the person who conducts the sheriff sale, the auctioneer,

must sign the sheriff deed. MCL 600.3232 states,

“The officer or person making the sale shall forthwith execute, acknowledge, and
deliver, to each purchaser a deed of the premises bid off by him; and if the lands
are situated in several counties he shall make separate deeds of the lands in each

Page 14 of 27
 county, and specify therein the precise amounts for which each parcel of land
therein described was sold. And he shall endorse upon each deed the time when
the same will become operative in case the premises are not redeemed according
to law. Such deed or deeds shall, as soon as practicable, and within 20 days after
such sale, be deposited with the register of deeds of the county in which the land
therein described is situated, and the register shall endorse thereon the time the
same was received, and for the better preservation thereof, shall record the same
at length in a book to be provided in his office for that purpose; and shall index
the same in the regular index of deeds, and the fee for recording the same shall be
included among the other costs and expenses allowed by law. In case such
premises shall be redeemed, the register of deeds shall, at the time of destroying
such deed, as provided in section 3244 of this chapter, write on the face of such
record the word “Redeemed”, stating at what date such entry is made, and signing
such entry with his official signature”

Specific individuals have the authority to conduct sheriff sales. MCL 600.3216 states,

“The sale shall be at public sale, between the hour of 9 o'clock in the forenoon
and 4 o'clock in the afternoon, at the place of holding the circuit court within the
county in which the premises to be sold, or some part of them, are situated, and
shall be made by the person appointed for that purpose in the mortgage, or by the
sheriff, undersheriff, or a deputy sheriff of the county, to the highest bidder.”
[Emphasis added.]

MCL 600.3216 does not specifically enumerate special deputies among the list of those

authorized to conduct sheriff sales. A fundamental principle of statutory construction is that “a

clear and unambiguous statute leaves no room for judicial construction or interpretation.”

Coleman v Gurwin, 443 Mich 59, 65; 503 NW2d 435 (1993). When a legislature has

unambiguously conveyed its intent in a statute, the statute speaks for itself and there is no need

for judicial construction; the proper role of a court is simply to apply the terms of the statute to

the circumstances in a particular case. Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528

NW2d 681 (1995); City of Lake Angelus v Oakland Co Road Comm’n, 194 Mich App 220, 224;

486 NW2d 64 (1992). Finally, in construing a statute, we must give the words used by the

Legislature their common, ordinary meaning. MCL 8.3a; MSA 2.212(1). Because MCL

Page 15 of 27
600.3216, a statute enacted in 1961, omits mention of special deputies among the persons

authorized to conduct sheriff sales, strict statutory construction would conclude that special

deputies are not authorized to conduct sheriff sales. It could be inferred that the intent of the

Michigan Legislature was to have duly-appointed and sworn county law enforcement officers

conduct the sale of property because of the education and special training received by such

officers or because law enforcement officers are bonded. The inference of the intent of the

Legislature is derived from MCL 51.70 which states:

“Each sheriff may appoint 1 or more deputy sheriffs at the sheriff's pleasure, and
may revoke those appointments at any time. Persons may also be deputed by a
sheriff, by an instrument in writing, to do particular acts, who shall be known
as special deputies and each sheriff may revoke those appointments at any time.
A sheriff shall not be responsible for the acts, defaults, and misconduct in office
of a deputy sheriff. The appointed deputy or deputies, other than special deputies,
before entering upon the duties of office shall execute and file with the county
clerk an official bond running to the people of this state in the amount of at least
$2,500.00, if the county board of commissioners determines an individual bond is
necessary, which bond shall be conditioned in the same manner as the bond
required of the sheriff, and with sufficient sureties as the presiding judge of the
circuit court for the county approves. A county by resolution of its county board
of commissioners may pay premiums on the individual bond running to the
people of this state in the amount of at least $2,500.00 as prescribed by the county
board of commissioners. A bond required by this section shall be conditioned in
the same manner as the bond required for the sheriff and have sufficient sureties.”
[Emphasis added.]

In accordance with MCL 51.70, the bond placed upon deputy sheriffs permits the sheriff

to not be responsible for the deputies’ acts, defaults, and misconduct, while at the same time the

bond protects the people of the state from the deputies’ acts, defaults, and misconduct. The same

statute does not require a bond for special deputy sheriffs, thus inferring that a sheriff is

responsible for the acts, defaults, and misconduct of the special deputies that the sheriff appoints.

It must also be noted that Sterling K. Harrison was not even a special deputy on the day

of the sheriff sale because his appointment was defective. MCL 51.70 outlines that only sheriffs,

Page 16 of 27
not undersheriffs, may appoint special deputies. As evidenced in Exhibit 14, the written

appointment for Sterling K. Harrison was signed by Harold Cureton as undersheriff. MCL 51.72

dictates the circumstances under which an undersheriff may execute the duties of a sheriff. MCL

51.72 states,

If a vacancy occurs in the office of sheriff of a county, the undersheriff of the

county shall in all things execute the office of sheriff, until a sheriff is elected and
qualified. A default or misfeasance in office of an undersheriff in that capacity, shall be
considered to be a breach of the condition of the bond given on behalf of or by the sheriff
who appointed the undersheriff, and also a breach of the condition of the bond executed
on behalf of or by the undersheriff to the sheriff by whom the undersheriff was appointed.

The written appointment of Sterling K. Harrison claims to be made while Warren C.

Evan was sheriff of Wayne County. Appellee provided no evidence to the trial court that the

office of sheriff was vacant, thus empowering the undersheriff, Harold Cureton, with statutory

authority to appoint Sterling K. Harrison as a deputy sheriff. It must therefore be concluded that

the office of sheriff was not vacant when the undersheriff signed the special deputy appointment,

thus rendering the appointment as void due to lack of statutory authority.

In addition, the written appointment on its face claims that the appointment was for the

year ending December 31, 2008, even though the appointment was date-stamped by the Wayne

County Clerk as being filed on June 21, 2006. Given that the appointment must be in writing, it

therefore follows that even if the appointment had been signed by Wayne County Sheriff Warren

C. Evans, because the appointment’s time period was limited to the 2008 calendar year, then

Sterling K. Harrison was not duly appointed a special deputy in 2007, the year in which the

disputed sheriff sale took place. If the appointment is defective, then Sterling K. Harrison was,

at best, a civilian employee of the Wayne County Sheriff’s Office. Civilian sheriff department’s

employees are not statutorily authorized to conduct the sheriff sale or sign the sheriff deed.

Page 17 of 27
Consequently, the sheriff deed is void and the Possession Judgment, predicated upon the void

sheriff deed, should be set aside or vacated.

The legal issue regarding the defective Wayne County special deputy appointments has

been raised at least three times. In Federal National Mortgage Association v. Strother, case

number 09-C2299-LT in the 35th District Court of Michigan, Judge Ronald W. Lowe granted

summary disposition in favor of the defendants on July 24, 2009. (A copy of this order is

annexed hereto as Exhibit 16.) In Strother, a mortgage company foreclosed on a homeowner

and sought a judgment of possession after the redemption period expired following a sheriff sale.

A special deputy named Yolanda Diaz conducted the sheriff sale and signed the sheriff deed in

Strother. However, the Strother case is similar to the case at bar because the under sheriff signed

both appointments of purported special deputies. Judge Lowe ruled in Strother that MCL 51.70

did not empower the under sheriff with statutory authority to appoint special deputies or

deputies, thus the Strother court dismissed the plaintiff’s complaint for possession.

In PHH Mortgage Corporation v. Cude, case number 09-02-2565 LT in the 23rd District

Court of Michigan, Judge William J. Sutherland set aside a default judgment and granted

summary disposition in favor of the defendant on September 23, 2009. (A copy of this order and

its exhibit, the appointment of Adrienne Sanders, is annexed hereto as Exhibit 17.) In Cude, a

mortgage company sought a judgment of possession against a homeowner after foreclosure by

advertisement, a sheriff sale, and expiration of the redemption period. Again, similar to both the

case at bar and Strother, a purported special deputy, Adrienne Sanders, conducted the sheriff sale

but was appointed by someone signing for Wayne County Sheriff Warren C. Evans. Of note is

that the signature of the person signing the Adrienne Sanders appointment in Cude is similar to

the signature of Harold N. Cureton who signed Sterling K. Harrison’s appointment in the case at

Page 18 of 27
bar. The Cude court found that a person, whose signature was not legible, could not appoint

special deputies for Wayne County Sheriff Warren C. Evans. As in Strother, the Cude court

found that MCL 51.70 does not permit anyone other than a sheriff to appoint special deputies.

Consequently, the Cude court found the sheriff deed signed by Adrienne Sanders to be an invalid

transfer and that the district court did not have jurisdiction to act on the plaintiff mortgage

company’s original complaint against the homeowner Tammie Cude to terminate her tenancy.

By lack of jurisdiction, it is inferred that the Cude court is stating that it did not have subject

matter jurisdiction to hear the mortgage company’s complaint.

Summary dispositions in the district court may proceed pursuant to MCR 2.116(C)(10)

which states,

Except as to the amount of damages, there is no genuine issue as to any material

fact, and the moving party is entitled to judgment or partial judgment as a matter of law.

However, when genuine issues of material fact are present to such an extent that the title

of the disputed property becomes at issue, then MCL 600.2932 grants circuit courts, rather than

district courts, subject matter jurisdiction in cases involving quiet of title. MCL 600.2932 states:

“Any person, whether he is in possession of the land in question or not, who

claims any right in, title to, equitable title to, interest in, or right to possession of
land, may bring an action in the circuit courts against any other person who
claims or might claim any interest inconsistent with the interest claimed by the
plaintiff, whether the defendant is in possession of the land or not.” [Emphasis
added.]

Consequently, it is inferred that the Cude court found that its initial default judgment to

the mortgage company must be set aside because the default judgment was based upon a sheriff

deed which later proved to be an invalid transfer. The Cude court, as a district court, therefore

did not have subject matter jurisdiction to hear quiet title issues.

Page 19 of 27
 In Re Antonio Attard, case number 08-57422 and Attard v. Wells Fargo Bank, adversarial

proceeding case number 08-5064 in the U.S. Bankruptcy Court for Eastern Michigan involves an

adversarial proceeding conducted in the bankruptcy case, in which 11 U.S.C. §1322(c)(1) was at

issue. (The adversarial complaint in Attard v. Wells Fargo is annexed hereto as Exhibit 18. The

August 6, 2009 Judgment for In Re Attard is also annexed hereto as Exhibit 18.) This federal

statute, 11 U.S.C. §1322(c)(1) states:

(c) Notwithstanding subsection (b)(2) and applicable nonbankruptcy law--

(1) a default with respect to, or that gave rise to, a lien on the debtor’s
principal residence may be cured under paragraph (3) or (5) of subsection (b) until
such residence is sold at a foreclosure sale that is conducted in accordance with
applicable nonbankruptcy law; and

(2) in a case in which the last payment on the original payment schedule
for a claim secured only by a security interest in real property that is the debtor’s
principal residence is due before the date on which the final payment under the
plan is due, the plan may provide for the payment of the claim as modified
pursuant to section 1325(a)(5) of this title.

The Attard debtor filed Chapter 13 and sought confirmation of a plan that would cure the

default on the mortgage for his principal residence in Livonia, Michigan. In his adversarial

complaint, the Attard debtor alleged that even though Wells Fargo Bank possessed a sheriff

deed, a 2007 foreclosure sale had not been conducted in accordance with applicable

nonbankruptcy law because the person conducting the sheriff sale, Adrienne Sanders, was not a

Wayne County deputy as represented in the sheriff deed. Neither was Adrienne Sanders

properly appointed to do particular acts as a special deputy. In the August 6, 2009 Judgment,

U.S. Bankruptcy Judge Thomas J. Tucker ruled in favor of the Attard debtor and found that the

foreclosure (i.e, sheriff) sale was not conducted in accordance with Michigan (nonbankruptcy)

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law, therefore the disputed property remains the debtor’s principal residence for which he may

confirm a plan to cure its defaulted mortgage.

Thus, two other Michigan district courts and one federal court have found that sheriff

deeds signed by persons with defective appointments create invalid transfers of ownership. The

Michigan district courts dismissed the mortgage company’s complaint for possession or set aside

the mortgage company’s default judgment of possession. The bankruptcy court has effectively

ruled that such sheriff deeds are void, finding the debtor to still be the titled owner of such

principal residence. However, when these directly on-point precedents and the documentary

evidence were presented to the district court in the case at bar in Appellants’ January 4, 2010

amended motion, if the district court indeed considered the amended motion, it then ruled that

the new evidence did not show that the court’s initial ruling was incorrect. The district court’s

finding is clearly erroneous. Accordingly, Appellants seek that this court set aside or vacate the

possession judgment on the basis that the sheriff deed is void due to it being signed by a person

not statutorily authorized.

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Argument II
This court may and should waive the escrow order of $500 per month.

Standard of Review

The interpretation and application of court rules presents a question of law that this Court

reviews de novo. Reitmeyer v Schultz Equipment & Parts Co, Inc, 237 Mich App 332, 336; 602

NW2d 596 (1999).

Analysis

On February 26, 2010, the district court ordered that the appeal be reinstated and

modified the escrow to $500 per month. Appellants asserted in Argument I that the district

court’s February 26, 2010 order did not rule on their January 4, 2010 amended motions that

included an amended motion to disqualify and an amended motion for relief from possession

judgment pursuant to MCR 2.612(C). Appellants assert that MCR 4.201(M)(1)(b) permits the

escrow order to be waived. MCR 4.201(M)(1)(b) states:

(M) Postjudgment Motions. Except as provided in MCR 2.612, any postjudgment

motion must be filed no later than 10 days after judgment enters.
(1) If the motion challenges a judgment for possession, the court may not
grant a stay unless
(a) the motion is accompanied by an escrow deposit of 1 month's
rent, or
(b) the court is satisfied that there are grounds for relief under
MCR 2.612(C), and issues an order that waives payment of the escrow;
such an order may be ex parte.
If a stay is granted, a hearing shall be held within 14 days after it is issued.

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 Simplistically, Appellants assert that if the appellate court applies Miller v. Inglis, page

13 supra, and rules on the issue that the invalid sheriff deed presented grounds for relief under

MCR 2.612(C), then this court may also waive the escrow that was modified on February 26,

2010. Appellants contend that judicial economy would justify such a simplification.

Alternatively, this court may determine that the district court did indeed rule on the

January 4, 2010 amended motions and that the district court concluded, in its February 26, 2010

Order, that the documentary evidence presented in the amended motions did not justify setting

aside the Possession Judgment. This court would then review the February 26, 2010 Order and,

consistent with other district court precedents, rule that the February 26, 2010 Order must be

reversed and Possession Judgment set aside or vacated because the person conducting the sheriff

sale and signing the sheriff deed was not statutorily authorized to do so. This court could then

find that the lower court abused its discretion by not waiving the escrow. By vacating the

Possession Judgment and setting aside the void sheriff sale and sheriff deed, as required by the

Michigan district court and federal court precedents, this court could avert remand and allow this

case to finally be resolved in accordance with Michigan statutory law and court rules.

Page 23 of 27
Relief Requested

WHEREFORE, Appellants, Thelma Belle and Anita Belle, respectfully request that this

Honorable Court vacate the trial court’s Possession Judgment, and set aside the Sheriff’s Sale

and Sheriff Deed . In addition, pursuant to MCR 2.625, Appellants seek $13,000 in attorney’s

fees plus reasonable costs.

Respectfully submitted,

_________________________________
Arthur C. Kirkland, Jr. (P27551)
Attorney for Appellants
Thelma Belle & Anita Belle
P.O. Box 35676
Detroit, MI 48235
Phone: (313) 909-5895
Email: arthurckirkland@gmail.com

Dated April 27, 2010

Page 24 of 27
Proof of Service
I certify that a copy of the foregoing Appellants’ Brief with 18 Exhibits was served on

opposing counsel, Gregory MacKay of Trott & Trott P.C., by regular U.S. Mail delivery to

31440 Northwestern Hwy, Suite 200, Farmington Hills, MI 48334 on April 27, 2010.

Respectfully submitted,

_______________________________

Anita E. Belle, Defendant/Appellant

19935 Vaughan
Detroit, MI 48219
Phone: 313-532-0161

Dated April 27, 2010

Page 25 of 27
Exhibits
Exhibit 1: 36th District Court Register of Actions dated April 12, 2010

Exhibit 2: Judgment of Possession dated March 23, 2009

Exhibit 3: Order Denying Motion to Dismiss, both dated March 23, 2009.

Exhibit 4: Bond on Appeal filed on April 1, 2009

Exhibit 4: Request for Transcript and Copy of the $20 unendorsed check to court

reporter Maia Fields

Exhibit 5: Bond on Appeal

Exhibit 6: Order of Bond and Order of Escrow, dated April 14, 2009, in addition to

envelope containing said Orders, postmarked May 5, 2009.

Exhibit 7: Copy of unendorsed check for $175 to court reporter Maia Fields and Receipt

of Deposit for Transcripts.

Exhibit 8: Order Dismissing Appeal, dated May 26, 2009 and envelope containing said

Order, postmarked June 3, 2009.

Exhibit 9: Receipt for $175 cash for transcripts, dated June 9, 2009.

Exhibit 10: Certificate of Ordering of Transcript on Appeal, dated June 11, 2009.

Exhibit 11: June 19, 2009 Coverpage and Certificate of Court Reporter for transcripts of

hearings held on February 10, 2009, March 10, 2009, and March 23, 2009.

Exhibit 12: Notice of Filing of Transcript and Affidavit of Mailing, dated June 19, 2009.

Exhibit 13: Sheriff Deed dated August 29, 2007.

Exhibit 14: Special Deputy Sheriff Appointment for Sterling K. Harrison

Exhibit 15: Order of February 26, 2010.

Exhibit 16: Federal National Mortgage Association v. Cortney L. Strother.

Page 26 of 27
 Exhibit 17: PHH Mortgage Corporation v. Tammie R. Cude

Exhibit 18: Attard v. Wells Fargo Bank adversarial proceeding complaint and Judgment

in In Re Attard.

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