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STATE OF MICHIGAN
COURT OF APPEALS


GEORGE SHAMIE and TATIANA SHAMIE, Plaintiffs-Appellees, v WENDELL FLYNN and MARGARET FLYNN, Defendants-Appellants.

UNPUBLISHED July 17, 2001

No. 217074 Wayne Circuit Court LC No. 98-832204-CH

Before: White, P.J., Wilder and Zahra, JJ. PER CURIAM. Defendants appeal as of right the circuit court's order granting plaintiffs' motion for summary disposition under MCR 2.116(C)(9) in this action to quiet title brought after defendant Wendell Flynn defaulted under a land contract. The circuit court concluded that plaintiffs were not required to pursue either summary proceedings to recover possession or a foreclosure action, and could effect a forfeiture by sending the required notice. We affirm. On October 5, 1998, plaintiffs filed a verified complaint to quiet title in a parcel of vacant land they had sold by land contract to defendant Wendell Flynn1 on July 19, 1988. The purchase price was $90,000 with $10,000 down, and the land contract provided that defendant would pay $733.33 monthly for interest-only payments at 11% per annum, the balance by balloon payment at the end of five years, and taxes. Plaintiffs' complaint alleged that although defendant made interest payments until the spring of 1996, defendant failed to make the balloon payment due on July 19, 1993. The complaint alleged that taxes were unpaid for calendar year 1991; that at a tax sale on the property on May 3, 1994, a tax deed was issued to Equivest; and that defendant redeemed the property from the tax sale and acquired a quit claim deed from Equivest on May 10, 1996. It further alleged that on September 27, 1996, plaintiffs sent defendant a forfeiture notice by certified mail; that defendant failed to cure the default within the fifteen day period provided by the forfeiture notice, the land contract and statute; and that defendant had thus forfeited all rights and interest in the property and all monies previously paid to plaintiffs. Plaintiffs further alleged that defendant had not paid real property taxes for 1992 and that at Defendants argued below that Margaret Flynn had a dower interest in the property. The circuit court ruled to the contrary, and this issue is not raised on appeal.
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another tax sale, on May 2, 1995, FUNB, custodian for CASI, Inc., purchased the property and received a tax deed. Plaintiffs alleged that they redeemed the property from the tax foreclosure purchaser and received a quit claim deed dated November 5, 1996, which was recorded. Plaintiffs' complaint alleged that they paid the 1993, 1994, 1995, 1996 taxes, and subsequent years as well. Plaintiffs alleged that defendant had paid no interest, principal or taxes since the forfeiture notice. They alleged that defendant had no legitimate claim of interest in the property, but may claim an interest by virtue of the land contract and the quit claim deed from Equivest. Plaintiffs alleged that they had a superior claim to the title of the property because of their preexisting, fee-simple title interest, the forfeiture of defendant's interest and defendant's failure to take any action to cure the default as stated in the forfeiture notice despite the lapse of more than two years. Finally, plaintiffs alleged that the cloud of suspicion thrown on their title to the property because of defendant's terminated interest had resulted in their being unable to close the sale of said property. Plaintiffs attached to the complaint copies of the land contract; the forfeiture notice sent to defendant Wendell Flynn dated September 27, 1996, stating that $82,933.32 was past due in principal and interest, and $7,967.88 was past due in taxes, and that the total amount due must be paid within fifteen days of the date of service; correspondence from plaintiffs' counsel to Wendell Flynn dated September 27, 1996 noting that the balloon payment was due on July 19, 1993 and was not paid, and that "since this is vacant land, summary proceedings will not be necessary to obtain possession;" a tax deed dated June 29, 1995 evidencing a tax sale for tax year 1991 to Equivest; a quit claim deed to Wendell Flynn from Equivest dated May 10, 1996; a tax deed dated September 19, 1996 evidencing a tax sale for tax year 1992 to FUNB; a quit claim deed to plaintiffs from FUNB dated November 5, 1996; correspondence from plaintiffs' counsel to the Wayne County Treasurer dated February 21, 1997, stating that plaintiffs were paying by enclosed certified check the delinquent taxes for tax years 1993, 1994, and 1995; a copy of that certified check in the amount of $5,369.87; and copies of the postal service certified mail form and receipt of that date. Defendants' answer to plaintiffs' complaint set forth no defenses or affirmative defenses, and pleaded "no contest" to the material allegations. Plaintiffs filed a motion for summary disposition under MCR 2.116(C))(9), arguing that defendants had not stated a valid defense or any affirmative defenses; that defendants had admitted that the property at issue was vacant land, that plaintiffs had sent a forfeiture notice dated September 27, 1996, and that defendants had not paid any interest, principal or taxes on the property since receiving the forfeiture notice more than two years before; and that defendants had failed to submit any document evidencing title interest in the property, as required by MCR 3.411. Plaintiffs' motion noted that defendant admitted breaching the land contract and argued that when a land contract is forfeited and the subject property is vacant, the "land contract seller need not invoke a judicial or statutorily created remedy to foreclose the rights of a purchaser," relying on cases including Rothenberg v Follman, 19 Mich App 383; 172 NW2d 845 (1969). Plaintiffs noted that the following provisions of the land contract were pertinent to their motion: 3. Seller and Purchaser Mutually Agree:

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(f) That Purchaser shall have the right to possession of the land from and after the date hereof, unless otherwise herein provided, and be entitled to retain possession thereof so long as there is no default on his part in carrying out the terms and conditions hereof. If the land is vacant or unimproved, Purchaser shall be deemed to be in constructive possession only, which possessory right shall cease and terminate after service of a Notice of Forfeiture of this Contract. Erection of signs by Purchaser on vacant or unimproved property shall not constitute actual possession by him. (g) That should Purchaser fail to perform this contract or any part thereof, Seller immediately after such default shall have the right to declare this contract forfeited and void, and retain whatever may have been paid hereon . . . . A proper notice of forfeiture, giving Purchaser at least fifteen (15) days to pay any moneys required to be paid hereunder or to cure other material breaches of this contract, shall be served on Purchaser, as provided by statute, prior to institution of any proceedings to recover possession of the land. (i) That time shall be deemed to be of the essence of this contract. [Emphasis added.] Defendants' answer and memorandum in opposition to plaintiffs' motion argued that plaintiffs had to proceed either with a forfeiture action in district court or a foreclosure action in circuit court in order that defendants have an opportunity to redeem. Defendants stated that although there is a common law theory of self-help forfeiture, it requires that the property have been abandoned and that plaintiffs have taken possession of it, and that those two issues were ones of fact. Defendants attached an affidavit of defendant Wendell Flynn stating that he had kept his interest in the subject property insured for public liability, kept the grass cut, and otherwise maintained the property as required by law and local ordinance. Defendants argued that even if plaintiffs had taken possession, a court of equity has the power to relieve a defaulting party from a forfeiture and to compel a sale by the land contract vendor. Defendants also stated that they "hereby tender to Plaintiffs payment in full of all principal and interest, plus any other expenses allowed under the land contract and by law in consideration of execution and delivery by Plaintiffs of a deed to Defendants pursuant to the land contract." Defendants requested that plaintiffs' motion be denied, or that the court grant plaintiffs' motion provided that they have a period of time to pay off the land contract balance. The circuit court granted plaintiffs' motion for summary disposition pursuant to MCR 2.116(C)(9), concluding that plaintiffs were entitled to the property based on the declaration of forfeiture, and need not have filed a summary proceedings or foreclosure action: THE COURT: [ ] Mr. Shamie and Mrs. Shamie have the right to the property and they can do it by Declaration of Forfeiture. This is vacant land. Rothenburg [sic] v Follman, 19 Mich App 383 specifically holds that if a land contract purchaser is not in physical possession of the land or possession can be recovered peacefully, the purchaser's right can be declared forfeited by the vendor without proceedings in court.

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It is also cited as authority in Michigan Real Property Law, Volume I, from the Institute of Continuing Legal Education, Chapter 16, Section 178, on Forfeiture. This is vacant land. It is easily obtainable by peaceful possession. There is also the

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