Petition for Writ of Certiorari — Simonetta Vespucci Sutton, Petitioner v. Mountain High Investments, LLC, et al.

li

ii

IV ;

No.

'111

6th Circuit

21-1346

IN THE

Supreme Court of the United States

SIMONETTA VESPUCCI SUTTON,

PETITIONER,

v.

v

8

MOUNTAIN HIGH INVESTMENTS, LLC,

A MICHIGAN LIMITED LIABILITY COMPANY,

INHERITANCE FUNDING GROUP 1, LLC,

A MICHIGAN LIMITED LIABILITY COMPANY,

PREMIUM HOMES REALTY, LLC,

A MICHIGAN LIMITED LIABILITY COMPANY,

REALTY SHARES REO, LLC,

A DELAWARE LIMITED LIABILITY COMPANY,

AND BOWMAN K. MITCHELL, A UTAH RESIDENT,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Simonetta Vespucci Sutton

In Pro Per

18327 Muirland

Detroit, MI 48221

(313) 758-7148

4-

1

1

FILED

JUL 2 e 2022

I

QUESTIONS PRESENTED

a ,

tt

A. Whether The District Court Erred In Denying Petitioner’s Motion To Remand

When The Respondent, Realty Shares Had Failed To Meet The Statutory

Requirement For Removal From The Wayne County Circuit Court To The

United States Federal District Court?

Petitioner would answer “Yes”

Respondent would answer “No”

The District Court answered “No”

This Court should answer “Yes”

B. Whether The District Court Erred In Denying Petitioner’s Request For A

Default Judgment Against Respondent, Realty Shares?

Petitioner would answer “Yes”

Respondent would answer “No”

The District Court answered “No”

This Court should answer “Yes”

C. Whether The District Court Erred In Granting Respondent, Realty Shares Reo,

LLC’S Motion To Dismiss?

if-

Petitioner would answer “Yes”

Respondent would answer “No”

The District Court answered “No”

This Court should answer “Yes”

;

T'

w

s '

i

n

D. Whether The District Court Erred In Amending The Judgment In Favor Of

Respondent, Petitioner And Against Petitioner, Simonetta Vespucci Sutton

And The Claims In Petitioner’s Complaint Against Named Defendants

Mountain High Investments, LLC, Inheritance Funding Group 1, LLC,

Premium Homes Realty, LLC, And Bowman K. Mitchell Being Dismissed

Without Prejudice?

Petitioner would answer “Yes”

Respondent would answer “No”

The District Court answered “No”

This Court should answer “Yes”

»

f

i

8

fi

Ill

PARTIES TO THE PROCEEDING

1<f ■

SIMONETTA VESPUCCI SUTTON*

PETITIONER,

v.

MOUNTAIN HIGH INVESTMENTS, LLC,

A MICHIGAN LIMITED LIABILITY COMPANY,

INHERITANCE FUNDING GROUP 1, LLC,

A MICHIGAN LIMITED LIABILITY COMPANY,

PREMIUM HOMES REALTY, LLC,

A MICHIGAN LIMITED LIABILITY COMPANY,

REALTY SHARES REO, LLC,

A DELAWARE LIMITED LIABILITY COMPANY,

AND BOWMAN K. MITCHELL, A UTAH RESIDENT,

a

RESPONDENTS.

r

a

1 This document was drafted or partially drafted with the assistance of a lawyer licensed to practice in the State

of Michigan, pursuant to MRPC 1.2(b).

\

it

A :

1

I

IV

TABLE OF CONTENTS

Page

j •

■r

»

QUESTIONS PRESENTED

1

PARTIES TO THE PROCEEDING

m

TABLE OF AUTHORITIES

v

OPINIONS BELOW

1

JURISDICTION

1

RELEVANT PROVISIONS INVOLVED

1

STATEMENT

2

REASONS FOR GRANTING THE PETITION

3

CONCLUSION

22

APPENDIX

23

I

!j •

1 '

V

i

;<

TABLE OF AUTHORITIES

i-.

J5 :

« :

1:

I

i-,

CASES

A&A Asphalt Paving Co v Pontiac Speedway,

Inc,363 Mich 634, 110 NW2d 601 (1961)......

Page

17

Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 234 n 7; 600 NW2d

9

638 (1999)

Belle Isle Grill Corp vs. Detroit, 256 Mich. App.

463 (2003).......................................................... .......

16

Bunner v Blow-Rite Insulation Co, 162 Mich.App.

669, 673-674; 413 N.W.2d 474 (1987)..................... 4,11

Hill v Frawley, 155 Mich App 611, 614; 400

NW2d 328 (1986).............................................. 3, 4, 10, 11

Holliday v Townley, 189 Mich.App. 424, 425; 473 N.W.2d 733 (1991)

................................................. ...11, 12

Hord vEnvironmental Research Inst of Michigan,

463 Mich 399, 617 NW2d 543 (2000)......................

17

Hornbuckle v. Mortg: Elec. Registration Sys., Inc., No. 10—14306, 2011 WL 5509214,

at *5 (E.D. Mich. Nov. 10, 2011)

14

ISB Sales Co v Dave’s Cakes, 258 Mich App 520,

528, 530; 672 NW2d 181 (2003)..............................

9

j* •

1!

VI

Langley v. Chase Home Fin. LLC, No. 10-604, 2011 WL 1130926, at *2 n. 2 (W.D.

Mich. Mar. 28, 2011) ..14

M&D,Inc v McConkey,231 Mich App 22, 585 NW2d 33 (1998),appeal denied,459

Mich 962, 590,

17

llNW2d 536 (1999)

i ■■

Overton v. Mortg. Elec. Registration Sys., No.

284950, 2009 WL 1507342, at *1 .......................

14

Temborius v Slatkin,157 Mich App587, 403 NW2d

821 (1986).......................................................................

18

United States v. Garno, 974 F. Supp. 628, 633

(E.D. Mich. 1997)..................................................

14

United StatesFid & Guar Co v Black,412 Mich 99,

313 NW2d 77 (1981).....................................................

17

Woods v SLB Prop Mgt, LLC, 277 Mich App 622,

628; 750 NW2d 228 (2008).......................................

9

Statutes

28 U.S.C. §1254(1)

1

MCL 600.3208

19

I

aV :

1

OPINIONS BELOW

«

I

The opinion of the United States Court of Appeals for the Sixth Circuit and the

opinion of the United States District Court for the Eastern District of Michigan were

unpublished opinions.

JURISDICTION

The decision of the United States Court of Appeals for the Sixth Circuit,

affirming the appeal from the District Court’s March 8, 2021, Opinion and Order

Denying the Petitioner’s Motion to Remand; and Granting Respondent, Realty Shares

REO, LLC’s Motion to Dismiss and the March 9, 2021, Amended Judgment in favor

of Respondent, Realty Shares REO, LLC. This Court has jurisdiction pursuant to

28 U.S.C. §1254(1)

RELEVANT PROVISIONS INVOLVED

i!

li

»•

(j

28 U.S. Code 1446 (b) (2) (B); MCR 2.603; MCR 2.105; In Hill v Frawley, 155 Mich

App 611, 614; 400 NW2d 328 (1986) .

3-

1

2

STATEMENT

On March 3, 2020, Petitioner commenced this action in the Wayne County

Circuit Court. The case was transferred to the United States District Court for the

Eastern District of Michigan on June 23, 2020. The basis of subject matter

jurisdiction is the diversity of the parties pursuant to 28 U.S.C 1332.

r

The District Court granted Respondent, Realty Shares REO, LLC’s Motion to

Dismiss on March 8, 2021, and denied Petitioner’s Motion to Remand. The Petitioner

appealed to this 6th Circuit Court of Appeals from the District Court’s granting of the

Respondents Motion to Dismiss and denying the Petitioner’s Motion to Remand on

April 7, 2021.

This Court has jurisdiction over this appeal pursuant to 28 U.S.C 1291.

This appeal is from a final order of the District Court which disposed of all

parties’ claims.

t

j

3

REASONS FOR GRANTING THE PETITION

!

!»

II

ARGUMENT

A.

The District Court erred in Denying Petitioner’s Motion To Remand

when the Respondent, Realty Shares had failed to meet the statutory

requirement for removal from the Wayne County Circuit Court to the

United States Federal District Court.

1. Service of process

In the case at bar, the District Court agreed with the Respondent, that there

was no basis to find proper service. However, Respondent, Realty Shares’ claim that

they were not properly served because their resident agent was not personally served

is without merit. MCR 2.105(E) (D) is a non-issue because Petitioner received actual

notice under MCR 2.105(J) (3) which states as follows:

(3) An action shall not be dismissed for improper service of process

unless the service failed to inform the defendant of the action within the

time provided in these rules for service.

'i

Petitioner’s actual notice of the Complaint is evidenced by the fact that the

Complaint was signed for by the Register Agent or its designee. In Hill v Frawley,

155 Mich App 611, 614; 400 NW2d 328 (1986) the Court stated that an action shall

not be dismissed for improper service of process unless the service failed to

1 ;

r.

1 !

#:

4

■i :

I1

s

!

inform the defendant of the action within the time provided in these rules for service."

"Thus, if a defendant actually receives a copy of the summons and complaint within

the permitted time, he cannot have the action dismissed on the ground that the

manner of service contravenes the rules." Hill v Frawley, 155 Mich App 611, 614; 400

NW2d 328 (1986).

The failure to technically comply with MCR 2.105(E) does not render service of

process ineffective. Notably, the rules applicable to service of process "are not

intended to limit or expand the jurisdiction given the Michigan courts over a

defendant." MCR 2.105(J)(1). As a result, strict compliance with the rules is not

mandated. MCR 2.105(J)(3); Alycekay Co v Hasko Constr Co, Inc, 180 Mich.App. 502,

505-506; 448 N.W.2d 43 (1989). Rather, "[t]his Court has held that service-of-process

rules are intended to satisfy the due process requirement that a defendant be

informed of the pendency of an action by the best means available, by methods

reasonably calculated to give a defendant actual notice of the proceeding and an

opportunity to be heard and to present objections or defense." Bunner v Blow-Rite

Insulation Co, 162 Mich.App. 669, 673-674; 413 N.W.2d 474 (1987).

Because the purpose underlying the rules governing service of process is to

provide actual notice of a lawsuit and an opportunity to defend, MCR 2.105(I)(1),

courts shall not dismiss an action based on improper service unless the service failed

to inform the defendant of the existence of a claim within the time specified within

the court rules. MCR 2.105(J)(3); Holliday v Townley, 189 Mich.App. 424, 425; 473

N.W.2d 733 (1991). Contrary to the majority's opinion,

(i

5

I

li '

$

i»

I

■

the focus is not on the method of process used to provide the notice but rather on

whether the service used actually provided timely notice of the complaint to an

authorized individual.

Defendants may argue MCR 2.105(J)(3) does not apply where there is "a

complete failure of service of process." Holliday v Townley, 189 Mich.Ann. 424. 425;

473 N.W.2d 733 (1991). Contrary to that argument, however, the facts presented here

did not establish a "complete failure of service of process in that evidenced by the fact

that Complaint was signed for by the Register Agent or its designee. The Respondent

was "aware of' the pending action as a result of the service under MCR 2.105(J)(3).

A motion for Default Judgment shall be granted unless good cause is shown

and an affidavit of facts showing a meritorious defense is filed. Respondent, Realty

Shares cannot show good cause in that Respondent, Realty Shares was served with a

copy of the Complaint on March 27, 2020, and the Respondent, had until April 24,

2020, to file its Answer. Petitioner filed her Motion for a Default Judgment under

MCR 2.603. MCR 2.603(A)(2) MCR 2.603(A)(2) MCR 2.105(J) (3)

A motion to set aside a default or a default judgment, except when grounded

on lack of jurisdiction over the defendant, shall be granted only if good cause is shown

and an affidavit of facts showing a meritorious defense is filed. Defendants

cannot show good cause in that a motion for Default Judgment shall be granted

unless good cause is shown and an affidavit of facts showing a meritorious defense is

filed. Respondent cannot show good cause in that Respondent

6

.i

*

d -

It *

was served with a copy of the Complaint on March 27, 2020, and the Respondent, had

until April 24, 2020, to file its Answer. Petitioner filed her Motion for a Default

Judgment under MCR 2.603. MCR 2.603(A)(2) MCR 2.603(A)(2) MCR 2.105(J) (3)

Finally, Respondents do not have a meritorious defense in that the

Respondents unlawfully foreclosed on the subject property in breach of Quiet Title

statutes and case law.

2. FEDERAL JURISDICTION DOES

REMOVAL WAS UNTIMELY

NOT

EXIST

BECAUSE

THE

The timeframe for Respondent, Realty Shares to remove the Wayne County

Circuit case to Federal Court is governed by 28 U.S. Code 1446 (b) (2) (B) which

states that “defendant shall have 30 days after receipt by or service on that

defendant” to file a removal. Respondent, Realty Shares that “(t)he other Defendants

in this action have not appeared in this case, they were improperly joined, and no

party including Realty Shares has been served. The Respondent may therefore

remove under 28 U.S.C. § 1446(b)(2) is just plain wrong. Respondent, Realty Shares

was served on March 27, 2020, and a default was entered on June 19, 2020.

Respondent, Realty Shares had until April 24, 2020, to remove the case. However,

the removal did not occur until June 23, 2020. Thus, Federal Jurisdiction does not

exist because Respondent, Realty Shares’ removal was untimely.

7

3. DIVERSITY JURISDICTION DOES NOT EXIST BECAUSE SEVERAL

DEFENDANTS ARE LOCATED IN THE STATE OF MICHIGAN

Diversity jurisdiction does not exist in the case at bar for the reason that

several Defendants are located in the State of Michigan. The nondiverse coDefendants are as follows:

A. Defendant, Mountain High Investments, LLC, a Michigan limited

liability company, upon information and belief is located in Eaton

Rapids, MI and doing business in Wayne County, State of Michigan.

B. Defendant, Inheritance Funding Group 1, LLC, a Michigan limited

liability company, upon information and belief is located in Grosse

Pointe, MI and doing business in Wayne County, State of Michigan.

ji

il <

K

iS

I'!

C. Defendant, Premium Homes Realty, LLC, a Michigan limited liability

Company, upon information and belief is located in Brighton, MI. and

doing business in Wayne County, State of Michigan.

Respondent, Realty Shares’ assertion that none of the Defendants were properly

joined or served is simply not true. The Complaint includes nondiverse co­

8

\

defendants, Defendant Mountain High of which has been served (ECF No 1-2, Page

ID 23-36) and therefore Removal is not applicable because of lack of diversity, thus,

28 U.S.C 1441 and 28 U.S.C. 1332 do not apply.

For the reasons stated above, Respondent, Realty Shares’ argument that

None of the other Defendants here have been properly joined or served or

“forum defendant” argument does not apply and simply not true.

THIRTY DAYS TO SEEK TO REMAND

4*

4:

Respondent, Realty Shares’ argument that 28 U.S.C. §1441(b) was waived

and 28 U.S.C. § 1447(c) is the correct section is a distinction without a difference at

best and nonsense at worse. Respondent, Realty Shares cited 28 U.S.C. §1441 and

28 U.S.C. §1441(b) as its basis for removal and Plaintiff cited 28 U.S.C. §1441 and 28

U.S.C. § 1441(b) as its basis for remand. (ECF No 4-2, Page ID 398-463)

B.

THE DISTRICT COURT ERRED IN DENYING PETITIONER’S

REQUEST FOR A DEFAULT JUDGMENT AGAINST RESPONDENT,

REALTY SHARES.

MCR 2.603

MCR 2.603(A)(1) provides that a default may be entered against a party who

has “failed to plead or otherwise defend” as required by the court rules. “Once

j

i

:!

f

t :

ii •

?}

9

■

,1 .

i ;

1 :

li.

the default of a party has been entered, that party may not proceed with the

action until the default has been set aside by the court” in accordance with

MCR 2.603(D) or MCR 2.612. MCR 2.603(A)(3). (Emphasis added)

A defaulted party may move to set aside the default before entry of a default

judgment or to set aside a default judgment within 21 days after the default judgment

was entered. MCR 2.603(D)(1) and (2); ISB Sales Co v Dave’s Cakes, 258 Mich App

520, 528, 530; 672 NW2d 181 (2003). An order granting a default judgment is a final

judgment, MCR 7.202(6)(a)(i); Allied Electric Supply Co v Tenaglia, 461 Mich 285,

288; 602 NW2d 572 (1999), and relief from that judgment may also be sought under

MCR 2.612(C) after the judgment is entered. Alken-Ziegler, Inc v Waterbury Headers

Corp, 461 Mich 219, 234 n 7; 600 NW2d 638 (1999).

A motion to set aside a default or default judgment shall be granted only for a

showing of good cause and the filing of an affidavit of facts showing a meritorious

defense. MCR 2.603(D)(1); Woods v SLB Prop Mgt, LLC, 277 Mich App 622, 628; 750

NW2d 228 (2008). The moving party bears the burden of demonstrating good cause

and a meritorious defense. Saffian, 477 Mich at 14.

An affidavit of meritorious defense “requires the affiant to have personal

knowledge of the facts, state admissible facts with particularity, and show that the

affiant can testify competently to the facts outlined in the affidavit.” Huntington Nat’l

Bank, 292 Mich App at 390. Factors relevant to the existence of a meritorious defense

include whether there is evidence that: (1) the plaintiff cannot prove or the defendant

can disprove an

10

•J

.1

V.

element of the claim or a statutory requirement; (2) ground for summary disposition

exists; and (3) the plaintiffs claim rests on inadmissible evidence. Shawl, 280 Mich

App at 238. However, in the case at bar Respondent, Realty Shares failed to file

any type of affidavit.

MCR 2.105

Moreover, Respondent, Realty Shares’ claim that it was not properly served

according to MCR 2.105(E) is without merit. MCR 2.105(E) (D) is a non-issue because

Respondent, Realty Shares received actual notice under MCR 2.105(J) (3) which

states as follows:

(3) An action shall not be dismissed for improper service of process

unless the service failed to inform the defendant of the action within the

time provided in these rules for service.

Respondent, Realty Shares’ actual notice of the Complaint is evidenced by

the fact that Respondent, Realty Shares filed their Notice to Remove and

subsequently filed their Motion to Dismiss. What is glaringly missing is any affidavit

from the Respondent, Realty Shares stating that they were not served and how

they ultimately obtained notice of the Complaint. Without more information, this

Court cannot establish when Respondent, Realty Shares was served, and its

Notice of Removal was due.

In Hill v Frawley, 155 Mich App 611, 614; 400 NW2d 328 (1986) the Court

stated that an action shall not be dismissed for improper service of process unless

f :

$:

t ■

1

»:

:!

:: 1

‘5

1:

11

the service failed to inform the defendant of the action within the time provided in

these rules for service." "Thus, if a defendant actually receives a copy of the summons

and complaint within the permitted time, he cannot have the action dismissed on the

ground that the manner of service contravenes the rules." Hill v Frawley, 155 Mich

App 611, 614; 400 NW2d 328 (1986).

The failure to technically comply with MCR 2.105(E) does not render service of

process ineffective. Notably, the rules applicable to service of process "are not

intended to limit or expand the jurisdiction given the Michigan courts over a

defendant." MCR 2.105(J)(1). As a result, strict compliance with the rules is not

mandated. MCR 2.105(J)(3); Alycekay Co v Hasko Constr Co, Inc, 180 Mich.App. 502,

505-506; 448 N.W.2d 43 (1989). Rather, "[t]his Court has held that service-of-process

rules are intended to satisfy the due process requirement that a defendant be

informed of the pendency of an action by the best means available, by methods

reasonably calculated to give a defendant actual notice of the proceeding and an

opportunity to be heard and to present objections or defense." Bunner v Blow-Rite

Insulation Co, 162 Mich.App. 669, 673-674; 413 N.W.2d 474 (1987).

Because the purpose underlying the rules governing service of process is to

provide actual notice of a lawsuit and an opportunity to defend, MCR 2.105(I)(1),

courts shall not dismiss an action based on improper service unless the service failed

to inform the defendant of the existence of a claim within the time specified within

the court rules. MCR 2.105(J)(3); Holliday v Townley, 189 Mich.App. 424, 425; 473

N.W.2d 733 (1991). Contrary to the majority's opinion,

12

5

it ■

ra-!

*

v.

the focus is not on the method of process used to provide the notice but rather on

whether the service used actually, provided timely notice of the complaint to an

authorized individual.

Respondent, Realty Shares may argue MCR 2.105(J)(3) does not apply

where there is "a complete failure of service of process." Holliday v Townley, 189

Mich.Ann. 424, 425; 473 N.W.2d 733 (1991). Contrary to that argument, however, the

facts presented here did not establish a "complete failure of service of process in that

evidenced by the fact that for some reason Respondent, Realty Shares on June 23,

2020, filed a Notice of Removal.

Since the Respondent, Realty Shares was "aware of' the pending action as

a result of the removal filing and Motion to Dismiss, then service was proper under

MCR 2.105(J)(3). We just do not know how they became aware or when. Thus,

factually and legally, Respondent, Realty Shares has no defense regarding service.

MOTION FOR DEFAULT JUDGMENT

A Motion for Default Judgment shall be granted unless good cause is shown

and an affidavit of facts showing a meritorious defense is filed. Respondent, Realty

Shares cannot show good cause in that Respondent, Realty Shares was served

with a copy of the Complaint on March 27, 2020, and the Respondent, Realty

Shares had until April 24, 2020, to file its Answer. Petitioner filed her Motion for a

Default Judgment under MCR 2.603. MCR 2.603(A)(2) MCR 2.603(A)(2) MCR

2.105(J) (3)

J

i

9

I:

13

With regards to the Default, the party seeking entry of a Default must provide

notice of the entry to the defaulted party who has not appeared and file a proof of

service and copy of the notice with the court. MCR 2.603(A)(2); MCR 2.603(A)(2)(b).

Petitioner has complied with the Default notice in her Motion to Remand or in the

alternative Motion for Default Judgment. Respondent, Realty Shares has failed

to Motion this Court to Set Aside the Default.

Finally, Respondent, Realty Shares does not have a meritorious defense in

that the Respondents unlawfully foreclosed on the subject property in breach of Quiet

Title statutes and case law.

:

C.

■i

THE DISTRICT COURT ERRED IN GRANTING RESPONDENT,

REALTY SHARES REO, LLC’S MOTION TO DISMISS.

a. The Foreclosure Sale Should Be Set Aside Even After the

Expiration of the Redemption Period.

a. Count I and Count II Should NOT Be Dismissed.

a) Quite Title-Plaintiff Can Establish Legal Violations

Sufficient To Demonstrate The Need For Quiet Title

*

’

ii :

1 ■

14

*i

i

I

i

1

li

In the case at bar, the subject property was sold at a Sheriffs Sale on August

16, 2018. Therefore, Petitioner had until February 16, 2019, to redeem the subject

property. While the potential expiration of the redemption period has serious

consequences for Petitioner’s legal rights, the Court retains the power to rescind the

foreclosure sale - even after the expiration of the redemption period - if the sale itself

was invalid based on a showing of fraud or irregularity. Overton v. Mortg. Elec.

Registration Sys., No. 284950, 2009 WL 1507342, at *1. Otherwise, statutory

foreclosures could never be set aside once the redemption period had expired. While

‘statutory foreclosures should not be set aside without very good reason,’ it is possible

for courts to set statutory foreclosures aside.” Hornbuckle v. Mortg. Elec. Registration

Sys., Inc., No. 10-14306, 2011 WL 5509214, at *5 (E.D. Mich. Nov. 10, 2011) (quoting

United States v. Garno, 974 F. Supp. 628, 633 (E.D. Mich. 1997)). See also Langley v.

Chase Home Fin. LLC, No. 10-604, 2011 WL 1130926, at *2 n. 2 (W.D. Mich. Mar.

28, 2011).

Moreover, MCL 600.2932 provides, in pertinent part, as follows:

(1) 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....

il

I!

15

(3) If the plaintiff established his title to the lands, the defendant shall be

ordered to release to the plaintiff all claims thereto. In an appropriate case the court

may issue a writ of possession or restitution to the sheriff or other proper officer of

any county in this state in which the premises recovered are situated ....

(5)

t

Actions under this section are equitable in nature.

Petitioner alleges that she is the owner of the Subject Property. One or more

of the Respondents claim an interest in the Subject Property inconsistent with the

interest claimed by Petitioner. For the reasons outlined in infra, Respondents do not

have an interest in the Subject Property, and their claims to the contrary are

therefore without merit.

Petitioner has suffered damages as a result of Respondents’ wrongful claim to

an interest in Petitioner’s real property. For the reasons set forth above, the Sheriffs

Deed to the Subject Property is void or voidable. For the reasons set forth above, the

Sheriffs Deed has created a cloud on the title to the Subject Property that can only

be resolved through a quiet title action by Petitioner against Respondents.

Therefore, despite the expiration of the redemption period, Petitioner may

challenge the foreclosure of the subject property and request the opportunity to do so

based upon the facts of this case, the supporting documentation, the applicable case

law and legal argument set forth below.

16

b. Count II Wrongful Foreclosure By

Advertisement

4

See argument in Section A above.

ii

ii

1

t '

*

1

4 i

c.

Count III Unjust Enrichment

Under Belle Isle Grill Corp vs. Detroit, 256 Mich. App. 463 (2003) the elements

of a claim for unjust enrichment are 1.) receipt of a benefit by the Defendants from

the Plaintiffs and 2.) an inequity resulting to Plaintiffs because of the retention of the

benefit by Defendant. In the case at bar, the actions of the Defendants were

intentionally/unintentionally/negligently designed to preclude the Petitioner from

keeping possession of her home. The Respondents knew or should have known that

Petitioner had a financial interest in the subject property. Notwithstanding that

knowledge, the Respondents failed to communicate with the Petitioner and went

forward with the Sheriffs Sale, and ultimately refused to allow Petitioner to redeem

the subject property before the expiration of the redemption period on February 16,

2019. As a result of the conduct of the Respondents the subject property has ended

up in the name of the Respondent, Realty Shares REO, LLC. If the Sheriff Deed were

to stand, Respondent would be unjustly enriched in excess of $25,000.00 and Petitioner

would suffer a loss in that amount, plus the loss of the subject property as a result of

Petitioner’s attempts to communicate with the Respondents in

!?

I

17

order to continue making mortgage payments, pay any arrearages, or any other

commendations and to redeem the subject property before the expiration of the

redemption period to no avail.

d. Count IV Fraud, Based Upon Silent Fraud And

Bad Faith Promises

3

■

J1

1

1

if

if-

Traditional common-law requires the Plaintiff to establish the following: a.)

The defendant made a representation of a material fact, b.) The representation was

false when it was made, c.) The defendant knew it was false when it was made or

made it recklessly, without knowledge of its truth, d.) The defendant made the

representation with the intention of inducing the plaintiffs reliance, e.) The plaintiff

acted in reliance upon it. f.) The plaintiff was damaged as a result. A&A Asphalt

Paving Co v Pontiac Speedway, Inc, 363 Mich 634, 110 NW2d 601 (1961). The fraud

may be worked by silence. Silent fraud arises where the defendant has an affirmative

duty to speak but fails to disclose material facts, causing the plaintiff to have a false

impression. M&D,Inc v McConkey,231 Mich App 22, 585 NW2d 33 (1998),appeal

denied,459 Mich 962, 590, HNW2d 536 (1999).

Silence may also lead to a finding of fraud if that party later acquires

information that renders previous representations misleading and does not pass it

on. See Hord vEnvironmental Research Inst of Michigan,463 Mich 399, 617 NW2d

543 (2000);United StatesFid & Guar Co v Black,412 Mich 99, 313 NW2d 77 (1981);

18

,4

*1

Temborius v Slatkin,157 Mich App587, 403 NW2d 821 (1986).

In the case at bar, Petitioner attempted to make the monthly payments to

Respondent(s) through Mountain High Investments, LLC. However, Respondent(s)

refused to communicate with Petitioner. As a result of Respondent(s)’ failure to

communicate with Petitioner, Petitioner was forced to file a Chapter 13 Bankruptcy

and Chapter 7 Bankruptcy. The Bankruptcies were subsequently dismissed. After

the Bankruptcies were dismissed, Petitioner attempted to communicate with

Respondent(s) in order to continue making mortgage payments, pay any arrearages

and or any other commendations through Mountain High Investments, LLC to no

avail.

Respondent(s) went forward with the Sheriffs Sale on August 16, 2018.

D uring the redemption period, Respondent(s) refused to allow Petitioner to

redeem the subject property before the expiration of the redemption period on

February 16, 2019.

e. Count V Request For Conversion To Judicial

Foreclosure

:!

i

3

A foreclosure which is governed by MCL 600.3101 (“judicial foreclosure”)

requires some Court supervision and/or review of the foreclosure procedure and sale

and would offer protections to Petitioner which is not available under a foreclosure

by advertisement. A judicial foreclosure requires the foreclosing entity to file a

lawsuit in the county in which the property is located and serve the lawsuit according

to applicable

i

19

ii

i

i? :

II '

court rules. The homeowner then has the option to respond to the complaint and may

also file a counter-claim if he or she deems it necessary as well as provides the option

for discovery and if needed, a trial by either a judge or jury.

If the foreclosing entity is successful in the judicial foreclosure lawsuit, a

judgment will be entered which provides the right to sell the property. There are two

extra weeks of publication required for a judicial foreclosure sale (a foreclosure by

advertisement requires 4 successive weeks of publication (MCL 600.3208); a judicial

foreclosure requires 6 successive weeks (MCL 600.6052)).

The publication for a judicial foreclosure cannot begin until at least 21 days

(appeal period - MCR 7.204(A)(1)(a)) from the date of the judgment of sale (MCR

3.410(C)) and 6 months from the date of the filing of the Complaint (MCR 3.410(C)(1))

and the sale of property sold under a judgment of foreclosure may not occur until at

least six months from the filing of the Complaint (MCL 600.3115). Also, in a judicial

foreclosure, the Court may, on request of a party, or on its own initiative, set an “upset

price” — the minimum price at which the real property covered by the mortgage may

be sold at the sale under the foreclosure proceedings. MCL 600.3155.

If they are legally allowed to do so, there would be no prejudice to Respondents

if they were required to foreclose judicially instead of simply by advertisement. If

allowed to proceed, the foreclosure which is the subject of this Complaint should be

ordered to proceed under the Michigan judicial foreclosure statute, MCL 600.3101, et

seq.

20

1

f. Count VI Injunction And Other Relief

A '

;

<<

'I

sit

!)

Since the redemption period expired in violation of the aforementioned counts

the Petitioner has a great likelihood of success on the merit of the case. The

irreparable harm is obvious, the subject matter is Real Property and the Petitioner

would ultimately be evicted from her home with no adequate remedy at law

Petitioner has no adequate remedy at law.

The harm to the Respondent(s) is considerably less if the Temporary

Restraining Order is issued than the harm to the Petitioner if the Temporary

Restraining Order does not issue for the reason that if Petitioner is evicted from her

home the subject property will most probably be vandalized and the value of the

property will be greatly diminished. While on the other hand, if the Temporary

Restraining Order is issued and continued the subject property is maintained. The

granting of this Temporary Restraining Order will further the public

interest. The Petitioner prays that this Honorable Court shall set aside the Sheriffs

Sale based upon the fact that Respondent(s) unlawfully went forward with the

Sheriffs Sale and failed to rescind the unlawful Sheriffs Sale in order for the

Petitioner to have the opportunity to redeem the subject property.

The right to have equitable controversies dealt with by equitable methods is

as sacred as the right of trial by jury. Brown v. Kalamazoo Circuit Judge, 75 Mich 274

at 284, (1988). After hearing the evidence, the court may grant a constructive trust

over the property in favor of Plaintiff. A constructive trust is

21

an equitable remedy that the court may impose where the facts justify it, In re Estate

of Swantek, 172 Mich App 509, 517; 432 NW2d 307 (1988). Constructive trusts are

creatures of equity. Michigan has permitted its courts to exercise their equitable

powers to preclude forfeiture or foreclosure under unusual circumstances or where

the party against whom the action has been brought has raised a valid fraud claim.

Mitchell v Dahlberg 215 Mich App 718, 547 NW2d 74 (1996), quoting Senters v

Ottawa Savings Bank, FSB, 443 Mich. 45, 56-57; 5-3 NW2D 639 (1999).

D.

THE DISTRICT COURT ERRED IN AMENDING THE JUDGMENT IN

FAVOR OF RESPONDENT, REALTY SHARES REO, LLC AND

AGAINST PETITIONER, SIMONETTA VESPUCCI SUTTON AND THE

CLAIMS IN PETITIONER’S COMPLAINT AGAINST NAMED

RESPONDENTS,

MOUNTAIN

HIGH

INVESTMENTS,

LLC,

INHERITANCE FUNDING GROUP 1, LLC, PREMIUM HOMES

REALTY, LLC, AND BOWMAN K. MITCHELL BEING DISMISSED

WITHOUT PREJUDICE.

For the reasons stated above, the District Court erred in amending the

*

1

Judgment in favor of Respondent, Realty Shares REO, LLC and against Petitioner,

Simonetta Vespucci Sutton and the claims in Petitioner’s Complaint against

named Respondents Mountain High Investments, LLC, Inheritance Funding

Group 1, LLC, Premium Homes Realty, LLC, and Bowman K. Mitchell being

'i

i t

«

;

J

I

Ii

r

SI

22

dismissed without prejudice.

;)

4 ■

1

CONCLUSION

Petitioners request that the District Court’s March 8, 2021, Opinion and Order

Denying the Petitioner’s Motion to Reman and Granting the Respondent, Realty

Shares, REO, LLC’s Motion to Dismiss and the March 9, 2021, Amended Judgment

in favor of the Respondent, Realty Shares REO, LLC’s be be reversed and that this

matter be remanded to the District Court.

Respectfully submitted,

;

•■I .

/s/ Simonetta Vespucci Sutton

Simonetta Vespucci Sutton

In Pro Per

18327 Muirland

Detroit, MI 48221

(313) 758-7148

Dated: July 29, 2022

!5

3

ii

* :