I have received messages from various sources asking what happened at the appeal: Did we win?
Let me begin by saying that we “won” as best as homeowners can (in Detroit). We got a remand. One of the legal definitions of remand is that it is when an appellate court sends a case back to a trial court for further action. A copy of the order appears at http://www.scribd.com/doc/34394947/Precedent-for-Remanding-Invalid-Sheriff-Deeds-in-Michigan
I say that we won as best as homeowners can in Detroit because the institutional bias of Detroit judges is in favor of the banks and against distressed homeowners. If you fall upon hard times, as many people in Michigan have, and become unable to pay your mortgage, the courts treat the homeowners as if we caused the Recession/Depression. Distressed homeowners are blood-sucking leeches upon society but the banks are good, noble, and the “white knights”. The “white knights” always tell the truth and distressed homeowners forge documents. In fact, my attorney was admonished for interrupting the bank’s attorney as if my attorney was the bully.
Let me begin by stating that Trott and Trott changed attorneys on my case. I can’t say with certainty that my case alone caused Trott to fire or “accept the resignation” of Gregory MacKay (P62030). Instead, I will say that the Trott foreclosure mill, along with Gregory MacKay, made at least one glaring mistake that could deserve scrutiny by the Michigan Bar.
The sheriff deeds that are signed by county sheriff designates are composed by attorneys for the foreclosing mortgage company. For example, John T. Harrison (P67841), of Trott & Trott, drafted the sheriff deed and affidavit of auctioneer for the sheriff sale of our house on August 29, 2007. (See page 4 of the sheriff deed on link http://www.scribd.com/doc/34406528/Sheriff-Deed-Dated-August-29-2007.) Both the sheriff deed and the affidavit of auctioneer are notarized and sworn to be true. However, both documents contain a misrepresentation, that the auctioneer, Sterling Harrison, is a deputy sheriff. I submit that a deputy sheriff is statutorily different from a special deputy sheriff, and that the affidavit fails to disclose that the auctioneer’s true job title is that of special deputy. I submit that the appointment of the deputy sheriff should be attached to the sheriff deed instead of an affidavit which may contain misrepresentations.
If the appointment had been attached instead of the affidavit of auctioneer, then the appointment could be examined to see whether it comports with the statute MCL 51.70. It would then be obvious to everyone, including Trott & Trott, that Sterling Harrison’s special deputy appointment was signed by the chief undersheriff rather than by the sheriff. In addition, although the appointment was notarized and filed in 2006, it was effective for the year ending December 31, 2008. Our sheriff sale was in 2007. Obviously, this means that Sterling Harrison was not properly appointed as a special deputy, and if he wasn’t a special deputy, then he was merely a civilian employee. (See the link http://www.scribd.com/doc/34406530/Special-Deputy-Appointment-for-Sterling-Harrison for a copy of the special deputy appointment.) MCL 600.3216 lists that only sheriffs, deputy sheriffs, and others specifically designated in the mortgage may auction the foreclosed property. My mortgage didn’t specify that civilian clerks employed by the county sheriff could conduct sheriff sales, so the sheriff deed signed by such a clerk is invalid.
When Judge Ziolkowski compared the special deputy appointment to the sheriff deed, he accused us of forging the appointment. After all, the appointment was so ridiculous, when compared to the sheriff deed, that an “objective” observer like a judge, would have no choice but to rule in the homeowner’s favor. Thank God Judge Ziolkowski’s judicial assistant, Lori, came in to assure him that ours was not a forgery case. Even the new Trott attorney, Michelle Clark, conceded that, to the best of her knowledge, the appointment was authentic.
Rule 3.3 of the Michigan Rules of Professional Conduct forbid attorneys from making knowing misrepresentations. This rules states:
Rule 3.3 Candor Toward the Tribunal.
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to a tribunal controlling legal authority in the jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts that are known to the lawyer and that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
Let’s give Trott & Trott the benefit of the doubt and say that the law firm didn’t know that the auctioneers for the sheriff’s office were special deputies rather than deputy sheriffs. Let’s say that they never checked, never asked, and just assumed that the sheriff’s office contained other white knights with impeccable reputations for always being good, noble, and following the letter and spirit of the law. Let’s assume that the law firm is not part of a massive conspiracy to re-gentrify Detroit, make distressed homeowners homeless, deprive people of the relative freedom and financial security of property ownership, create a feudal class of tenants, etc. Never mind that other counties, like Oakland and Macomb, are also improperly appointing special deputies to conduct sheriff sales. Let’s assume this is all one big “honest mistake”. The court rules give homeowners a year to discover the mistake. The trial court rendered a Possession Judgment on March 23, 2009. We pointed out the invalid sheriff deed, due to the defective special deputy appointment, on January 4, 2010. Thus, by January 4, 2010, Trott & Trott’s attorneys were put on notice about their misrepresentations. Whether or not the specific attorney, Greg MacKay, left the law firm, any attorney from the firm taking over the case should be able to read the file. If the Trott attorney then continues to try to evict us from our house based upon an invalid sheriff, I say that the Trott attorney is making a knowing misrepresentation that violates Michigan ethics and commits fraud upon the courts.
Good news for all you “sports fans”: The “honest mistake” in my case could serve as notice for yours, too. That’s why I posted the links to my documents. Use them. Get your sheriff deed. See who was the auctioneer. Go to your county’s clerk and request the appointment of the auctioneer by the sheriff.
In Macomb, the clerk’s office couldn’t find Suzanne Meli’s appointment but I know of at least one sheriff sale on which she was the “deputy sheriff”.
In Oakland, the deputy clerks, at first, couldn’t find Thomas Rabette’s special deputy appointment by Sheriff Mike Bouchard (who is running for Governor of Michigan) to conduct sheriff sales. The next day after my visit to the Oakland County Clerk, Ruth Johnson, a church filed a federal civil rights lawsuit against Oakland County for the invalid sheriff deed issued from their foreclosure. Suddenly, mysteriously, the special appointment for Thomas Rabette to conduct sheriff sales conveniently appeared. However, one thing Wayne County’s Clerk, Cathy Garrett, does is date stamp when documents are filed. Oakland County’s clerk doesn’t date-stamp when documents are filed, so we don’t know when Bouchard decided to file the appointment. For all we know, the notary back-dated it to 2009 to cover the dates of church’s foreclosure so the county and the sheriff couldn’t be sued. I am afraid that more underhanded tricks would take place if Bouchard becomes Governor. Indeed, the supposed special deputy appointment of the auctioneer for Oakland County, Thomas Rabette, states that he’s not even an employee of the Oakland County Sheriff’s Office but is an employee of a a private corporation, American Process Service Inc. This means that Oakland County has gone a step further than Wayne County: Rather than using civilian employees to conduct sheriff sale, the Oakland County Sheriff outsourced a sheriff duty to Attorney Thomas Rabette (P25018). Is that what MCL 600.3216 intended? I think not.
Ultimately, the goal of exposing the invalid sheriff deals, defective special deputy appointments, knowing misrepresentations by bank attorneys, civil rights violations of counties, and fraud upon the courts is to put banks in the mood to negotiate modifications for mortgages. Heretofore, banks have behaved like oppressive rulers holding all the cards to intimidate homeowners into surrendering their homes. However, more and more homeowners are not being intimidated. We are standing up for our property ownership rights. Homeowners are adopting my theme song. It is an old Negro spiritual or civil rights anthem, “We Shall Not Be Moved”, sung beautifully by Mavis Staples.