Frost v. Cockerham

M. R. Knoblock, J. Defendant appeals from an order of the circuit court granting plaintiffs motion for summary disposition on the basis that *761 there existed no genuine issue of material fact. MCR 2.116(0(10). The facts are not in dispute. Plaintiff was divorced from Lawrence Pirtle on April 2, 1979. By the terms of the judgment of divorce, Pirtle was awarded title to the marital home. The judgment also provided: It is further ordered and adjudged that the plaintiff, Lawrence A. Pirtle, shall execute a Mortgage in the amount of Twenty Thousand Dollars ($20,000.00) payable to the defendant, Barbara Ann Pirtle upon the sale of the marital home located at 1265 Argentine Road, Howell, Michigan. Said mortgage shall have no interest. On April 2, 1979, a mortgage was executed by Pirtle in accordance with the above provision. The mortgage was recorded on April 27, 1979. On August 17, 1981, Pirtle executed a second mortgage of the subject property to the Brighton State Bank in the amount of $25,000. He subsequently defaulted on this mortgage and the bank commenced a foreclosure action on May 2, 1983. On June 2, 1983, a default judgment of foreclosure was entered in that action which provided that a total of $27,165.13 was due, including interest, costs and attorney fees. On August 5, 1983, plaintiff in this action intervened as a party plaintiff in the bank foreclosure action. On the same date, a consent judgment was entered providing that the subject property be listed for sale and appointing the bank as agent and receiver of the property and authorizing the bank to take "any and all actions necessary for the completion of said sale.” It was further ordered that the mortgage debt owed to the bank be paid as a first priority with the lien in favor of *762 plaintiff in this action subordinated to that of the bank. On December 8, 1983, Pirtle conveyed his interest in the subject property by quitclaim deed to the bank. On May 8, 1984, the bank conveyed the subject property to the defendant in this action by quitclaim deed in consideration of the payment of $31,029.11. On August 31, 1984, the bank granted Pirtle a discharge of mortgage. On May 29, 1985, plaintiff commenced this action in which she asserted that the conveyance of the subject property by Pirtle to the bank on December 8, 1983, constituted a sale, thereby causing her mortgage to become due and payable, and in default. She claimed a balance due of $15,000 and prayed for a judgment of foreclosure and sale of the subject property to satisfy the debt. Defendant answered, denying any liability for payment of the debt and affirmatively asserting an accord and satisfaction of the mortgage by the August 5, 1983, consent judgment and the conveyance by Pirtle to the bank on December 8, 1983. On July 31, 1985, plaintiff served requests for admissions on defendant, pursuant to MCR 2.312, which requested that defendant admit: (1) that prior to April, 1979, the plaintiff was married to Lawrence Allen Pirtle. (2) that Lawrence A. Pirtle and plaintiff were divorced by judgment of the trial court dated April 2, 1979, and case number 79-7112-DO. (3) that pursuant to the terms of the judgment in said case number 79-7112-DO, plaintiff was granted a mortgage for $20,000 on real property commonly known as 1265 Argentine Road, Howell. (4) that plaintiff’s mortgage on the aforesaid property was recorded in Liber 921, p 500, of the records of the Livingston County Register of Deeds on April 27, 1979. *763 (5) that Lawrence A. Pirtle sold his interest in the aforesaid real property to the Brighton State Bank by way of quit claim deed which was recorded with the Livingston County Register of Deeds on December 16, 1983. (6) that on May 8, 1984, the Brighton State Bank sold its interest in the aforesaid real property to the defendant, Russell Steven Cockerham. (7) that plaintiff has been paid $5,000, towards the aforesaid mortgage amount of $20,000 leaving a current principal balance of $15,000. Defendant filed a motion to strike plaintiff’s request for admissions which came on for hearing on September 25, 1985. At the hearing, counsel for both parties announced on the record a stipulation that defendant would respond to the request to admit within seven days. A proposed order was submitted to the trial court under the seven-day rule (MCR 2.602) and, no objections having been filed, an order encompassing the terms of the stipulation was entered by the trial court on October 10, 1985. Defendant thereafter failed to respond to the requests. On November 8, 1985, plaintiff filed a motion for summary disposition claiming that, as a result of defendant’s failure to respond, the facts asserted in the requests to admit were "conclusively established” pursuant to MCR 2.312(D). The motion was heard on November 18, 1985, on which date defendant filed his response to the motion, denying that any sums of money were due from defendant to plaintiff. The trial court rendered its decision in a written opinion finding that defendant could not assert that no sums were due plaintiff because this fact was established by the admissions which had not been denied. Although defendant had not at any time requested permission to file late responses to the requests to admit, the trial court never *764 theless balanced the factors enumerated in Janczyk v Davis, 125 Mich App 683; 337 NW2d 272 (1983), concerning whether a trial court should allow a party to file a late response. Finding that defendant’s disregard of the court’s order, together with the unexplained absence of any response to plaintiff’s requests to admit, far outweighed any countervailing consideration, the court concluded that defendant was not entitled to file a late response. The court subsequently entered a judgment of foreclosure and decreed that there was due to plaintiff the sum of $15,000 plus taxable costs. The court further held that the defendant was not personally liable for payment of the sum due, but that, if it was not paid within twenty-one days, the premises would be ordered sold at public auction with the proceeds to be used to satisfy the debt. As a preliminary matter it should be noted that defendant’s brief on appeal does not comply with the provisions of MCR 7.212(C) by setting forth separately each issue raised followed by an argument on each issue. For this reason, defendant’s arguments are extremely difficult to understand and analyze. Defendant does not appear to contest the trial court’s conclusion that the facts listed in plaintiff’s request to admit must be considered conclusively established. Defendant maintains, however, that these facts are not prima facie sufficient to establish plaintiff’s right to summary disposition because they do not establish who is responsible to pay the amount due plaintiff, nor do they address defendant’s affirmative defense of accord and satisfaction. MCR 2.116(0(10) provides that a motion for summary disposition should be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a *765 matter of law. A motion based upon GCR 1963, 117.2(3), now MCR 2.116(0(10), is designed to test the factual support for a claim or defense. Maccabees Mutual Life Ins Co v Dep’t of Treasury, 122 Mich App 660; 332 NW2d 561 (1983), lv den 417 Mich 1100.15 (1983); Detroit Edison Co v Richmond Twp, 150 Mich App 40; 388 NW2d 296 (1986). The court must consider the pleadings, affidavits and other available evidence and be satisfied that the claim or position cannot be supported by evidence at trial because of some deficiency which cannot be overcome. Maccabees, supra. The court must give the benefit of any reasonable doubt to the party opposing the motion and inferences are to be drawn in favor of that party. Id. A mortgage is an interest in real estate. Tromley v Lange, 236 Mich 240; 210 NW 202 (1926); Purification Systems, Inc v Mastan Co, 40 Mich App 308; 198 NW2d 807 (1972), overruled on other grounds in Rogers v Colonial Federal Savings & Loan Ass’n of Grosse Pointe Woods, 405 Mich 607, 620; 275 NW2d 499 (1979). A real estate mortgage in Michigan is but a security for a debt in the nature of a specific lien. Equitable Trust Co v Milton Realty Co, 263 Mich 673; 249 NW 30 (1933). In the present case, plaintiffs lien was on the real estate. After concluding, based on the facts established by the record including the admissions, that plaintiff had a valid lien on the real estate, the trial court was correct in ordering that it be sold to satisfy plaintiffs claim. The court was not obligated to determine who was responsible to pay the debt which the mortgage secured. The bank abandoned its foreclosure action by accepting the quitclaim deed from Pirtle. A quitclaim deed conveys only the grantor’s interest. Putnam v Russell, 86 Mich 389; 49 NW 147 (1891); *766 Koenig v Koenig, 311 Mich 12; 18 NW2d 259 (1945). Thus, by definition of a quitclaim deed and operation of law, the bank acquired only the interest Pirtle had in the real estate which was subject to plaintiffs mortgage. By the terms of plaintiffs judgment of divorce, Pirtle’s conveyance of the property made the debt due and payable. The bank conveyed its interest to defendant by way of a quitclaim deed which stated on its face that it was subject to instruments of record. Since plaintiff’s lien was never extinguished, the title defendant received from the bank was subject to the plaintiffs mortgage. We are of the opinion that the trial court was correct in concluding that, on the record presented, there existed no genuine issue of material fact and that plaintiff was entitled to judgment as a matter of law. Affirmed.