Lynn Connolly v. Deutsche Bank National Trust

Filing

OPINION filed : For the reasons stated above, the district court s grant of Deutsche s motion for summary judgment is AFFIRMED. The district court s denial of Connolly s motion for partial summary judgment is AFFIRMED. The district court s denial of Connolly s motion for reconsideration is AFFIRMED. Decision not for publication. Julia Smith Gibbons and David W. McKeague (authoring), circuit judges; and William H. Stafford, U.S. District Judge for the Northern District of FL.

Case: 13-2522

Document: 39-2

Filed: 09/09/2014

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 14a0709n.06

FILED

Case No. 13-2522
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LYNN MARIE CONNOLLY,

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiff-Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee for Certificate Holders
for Quest Trust 2006-X2, Asset Backed
Certificates, Series – X2,
Defendant-Appellee.

Sep 09, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF MICHIGAN

OPINION

BEFORE: GIBBONS and McKEAGUE, Circuit Judges; STAFFORD, District Judge.*
McKEAGUE, Circuit Judge. Lynn Connolly (“Connolly”) appeals the district court’s
denial of a variety of claims arising from statutory foreclosure-by-advertisement proceedings
conducted by the Defendant, Deutsche Bank National Trust Company (Deutsche). For the
reasons set forth below, we AFFIRM.
I
This foreclosure concerns Connolly’s ten acre parcel of property. (R. 1, Complaint at 9,
PageID # 9.) On October 24, 2002, Connolly signed a promissory note and obtained a loan for
$333,000.00 from Ameriquest Mortgage Company to re-finance the property. (Id. at 10, PageID
*

The Honorable William H. Stafford, Jr., Senior United States District Judge for the Northern
District of Florida, sitting by designation.

Case: 13-2522

Document: 39-2

Filed: 09/09/2014

Page: 2

Case No. 13-2522, Connolly v. Deutsche Bank
# 10.) As security for the loan, Connolly granted Ameriquest a mortgage on the property. The
Mortgage was recorded with the Livingston County Register of Deeds. (R. 20, Exhibit H
Mortgage at 2, PageID # 325.) Connolly has not made a payment on the loan since December
2008. (R. 30, Ex. C Pl’s Deposition at 10, PageID # 294).
Citi Residential Lending Inc., as Attorney-in-Fact for Ameriquest Mortgage Company,
assigned the mortgage to Deutsche Bank National Trust Company, as trustee for Ameriquest
Mortgage Securities Inc.1 This would constitute the first assignment of the mortgage. A few
years later on April 28, 2009, Connolly filed for Chapter 7 Bankruptcy. (R. 20, Exhibit C Pl’s
Deposition at 5, PageID # 289.)
On May 8, 2009, the mortgage was then assigned a second time,2 to a different trust for
which Deutsche was a trustee. The second assignment was recorded May 13, 2009. (R. 20,
Exhibit J Assignment of Mortgage at 1–4, PageID # 346–349.)
Subsequently, Deutsche foreclosed on Connolly’s property, and a sheriff’s sale was held
on May 5, 2010. Deutsche was the highest bidder with a bid of $108,750. (R. 20, Exhibit A
Sheriff’s Deed at 2, PageID # 271.) Connolly was then allowed a statutory twelve-month
redemption period to purchase the property for the auctioned price. However, seven months into
the redemption period on December 1, 2010, Deutsche, through its attorney, executed an

1

Specifically, the assignment was from Citi Residential Lending Inc., as Attorney-in-Fact for
Ameriquest Mortgage Company, to Deutsche Bank National Trust Company, as trustee for
Ameriquest Mortgage Securities Inc., Quest Trust 2005-X2 Asset Backed Certificates, Series
2006-X2, Under the Pooling and Servicing Agreement Dated August 1, 2006. (R. 20, Ex. I.
Assignment of Mortgage.)
2
Specifically, the assignment of mortgage was from Deutsche Bank National Trust Company, as
Trustee for Ameriquest Mortgage Securities, In., Quest Trust 2005-X2 Asset Backed
Certificates, Series 2006-X2, Under the Pooling and Servicing Agreement Dated August 1, 2006
to Deutsche Bank National Trust Company, as Trustee in trust for the benefit of the
Certificateholders for Quest Trust 2006-X2, Asset Backed Certificates, Series X-2. (R. 20,
Exhibit J Assignment of Mortgage at 1–4, PageID # 346–349.)
-2-

Case: 13-2522

Document: 39-2

Filed: 09/09/2014

Page: 3

Case No. 13-2522, Connolly v. Deutsche Bank
Affidavit Expunging the Sherriff’s Deed pursuant to M.C.L.A. 565.451a. (R. 20, Exhibit D
Affidavit Expunging Sherriff’s Deed at 1–4, PageID # 310–13.) The affidavit states that the
sheriff’s deed must be expunged because the sheriff’s sale was “inadvertently held.” (Id. at 3,
PageID # 312.) The affidavit was recorded on December 8, 2010 with the Livingston County
Register of Deeds. (Id.)
On January 12, 2011, a third assignment3 was recorded, to another trust for which
Deutsche was trustee. (R. 20, Exhibit L Third Assignment at 3, PageID # 356.) After the third
assignment, Deutsche foreclosed the mortgage by advertisement. A sheriff’s sale occurred on
May 18, 2011, and Deutsche had the highest bid with $172,000. (R. 20, Exhibit B 2011 Sheriff’s
Deed at 2, PageID # 279.) A Sheriff’s Deed to Deutsche was recorded on May 26, 2011. Id.
Connolly then had one year to redeem the property for the new price. Before the year expired,
Connolly filed her complaint on April 24, 2012. She, however, never attempted to redeem her
property by May 18, 2012. Upon the filing of her complaint in state court, Deutsche removed to
the United States District Court for the Eastern District of Michigan on the basis of diversity of
citizenship. (R. 1, Notice of Removal at 2–4, PageID # 2–4.)
Connolly asserted seven claims arising from statutory foreclosure-by-advertisement
proceedings conducted by Deutsche as trustee.4 The district court granted Deutsche’s motion for

3

Specifically, the Mortgage was assigned from Deutsche Bank National Trust Company, as
Trustee for Ameriquest Mortgage Securities, Inc., Quest Trust 2005-X2 asset backed Certificates
Series 2006-X2, Under the Pooling and Servicing Agreement dated August 1, 2006 to Defendant
Deutsche Bank National Trust Company, as Trustee in trust for the benefit of the Certificate
holders for Quest Trust 2006-X2, Asset Backed Certificates, Series 2006-X2.
4
In the complaint, Connolly alleges the following claims: Jurisdictional Allegations (Count I),
Declaratory Judgment/Wrongful Foreclosure (Count II), Complaint to Quiet Title (Count III),
Complaint for Money Damages for the Tort of Slander of Title by Document Recordings (Count
IV), Slander to Plaintiff Individually by False Publications (Count V), Specific Count as to
M.C.L. 600.3205(a) Violation (Count VI), and Defendant’s Violation of M.C.L. 440.9109(1)(c)
Failure to Cancel and Deliver the Original Promissory Note (Count VII). (R. 1, Complaint at 9–
-3-

Case: 13-2522

Document: 39-2

Filed: 09/09/2014

Page: 4

Case No. 13-2522, Connolly v. Deutsche Bank
summary judgment5 on all claims. (R. 31, Memorandum and Order at 1, 20, Page ID # 470, 489.)
The district court, in turn, denied Connolly’s motion for partial summary judgment. Id. Connolly
subsequently filed a motion for reconsideration, which the district court denied. 6
II
Summary judgment may be warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). To meet such a burden on a motion for summary judgment, the moving party may
“point[] out to the district court that there is an absence of evidence to support the nonmoving
party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “All justifiable inferences
[must be drawn] in the light most favorable to the non-moving party.” Hager v. Pike Cnty. Bd. of
Ed., 286 F.3d 366, 370 (6th Cir. 2002) (Jones, Moore, Haynes). In a case based on diversity of
citizenship, such as this, we apply the substantive law of the state of Michigan and “follow the
decisions of the state’s highest court when that court has addressed the relevant issue.” Savedoff
v. Access Group, Inc., 524 F.3d 754, 762 (6th Cir. 2008) (Keith, Clay, Gilman (concurring)). If a
state’s highest court has not addressed the issue, then “[i]ntermediate state appellate courts’
decisions are also viewed as persuasive unless it is shown that the state’s highest court would
30, PageID # 9–30.) Of these complaints, the Plaintiff only raises Count II and Count IV on
appeal, and accordingly, we only address those claims.
5
In the district court’s Memorandum and Order, the court noted that the Deutsche titled its
motion as a motion for summary judgment, yet the motion cited and argued that the complaint
was subject to dismissal under Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 56. (R. 31
Memorandum and Order at 1, PageID # 470 n.3.) However, because the district court considered
evidence outside the four-corners of the complaint in ruling on the motion, we will treat the
district court’s ruling as a ruling granting summary judgment.
6
The standard of review on motions for reconsideration requires the finding of an abuse of
discretion. Charbeneau v. Wayne Cnty. General Hosp., 158 Mich. App. 730, 733 (Mich. Ct.
App. 1987). As we determine that the redemption period was 12-months and has expired,
Connolly has not proven that the lower court’s use of a six-month redemption period was an
abuse of discretion. Therefore, we do not address the substance of Connolly’s motion for
reconsideration and affirm the district court’s denial.
-4-

Case: 13-2522

Document: 39-2

Filed: 09/09/2014

Page: 5

Case No. 13-2522, Connolly v. Deutsche Bank
decide the issue differently. Conlin v. Mortg. Elec. Registration Sys., 714 F.3d 355, 358 (6th Cir.
2013) (citing Savedoff, 524 F.3d at 762).
On appeal, Connolly argues that the dismissal of her claims constitutes reversible error.
(Pl’s Brief at 5.) First, she claims that her mandatory redemption period has not expired. Id. at 3–
4. On that premise, she argues wrongful foreclosure on three grounds: 1) Deutsche interfered
with her statutory vested redemption rights by the use of a unilateral recording of a false
Affidavit Expunging Sheriff’s Deed; 2) Deutsche did not have standing to foreclose on her
home, namely because it did not carry its burden of proof that it is the true party entitled to
enforce the debt; and 3) Deutsche obtained the power to foreclose through an incomplete and
fraudulent recorded chain of mortgage assignments. Id. Next, Connolly claims the expungement
affidavit constitutes a compensable slander of title. Id. at 3, 7.
A preliminary question is whether Connolly’s redemption period has expired. It is not
disputed that Connolly failed to redeem within the twelve-month redemption period. However,
Connolly argues that her complaint was filed timely, nearly a month before the expiration of her
redemption period from the second sheriff’s auction, which she claims tolled the redemption
period. However, “the filling of a lawsuit is insufficient to toll the redemption period.” Conlin,
714 F.3d at 360 (citing Overton v. Mortg. Elec. Registration Sys., No. 284950, 2009 WL
1507342, at *1 (Mich. Ct. App. May 28, 2009)). As such, “once the redemption period expires,
the homeowner has no legal interest in the property that litigation might vindicate.” El-Sablani v.
IndyMac Mortg. Servs., 510 Fed. App’x 425, 428 (6th Cir. 2013) (Daughtrey, Cole, Gibbons).
Accordingly, Connolly’s redemption period has expired.
Courts have the ability to “allow an equitable extension of the period to redeem from a
statutory foreclosure sale . . . in order to keep a plaintiff’s suit viable, provided [s]he makes a

-5-

Case: 13-2522

Document: 39-2

Filed: 09/09/2014

Page: 6

Case No. 13-2522, Connolly v. Deutsche Bank
clear showing of fraud, or irregularity by the defendant.” Id. (citing Schulthies v. Barron, 167
N.W.2d 784, 785 (Mich. Ct. App. 1969)). Such fraud or mistake “must relate to the foreclosure
procedure itself.” Id. at 429. The first issue, then, is whether the redemption period should be
extended because of fraud or irregularity by the defendant. Even if the plaintiff can prove fraud
or irregularity in connection to her claims, she will also have to surpass a more difficult hurdle of
showing actual prejudice. See Conlin, 714 F.3d at 359–62; see also Kim v. JPMorgan Chase
Bank, N.A., 493 Mich. 98, 115–16 (Mich. 2012). Prejudice is proven if the defendant “would
have been in a better position to preserve [her] interest in the property absent defendant’s noncompliance with the statute.” Kim, 493 Mich. at 116. The concurring opinion in Kim provides
factors to be considered when determining prejudice:
[W]hether plaintiffs were misled into believing that no sale had
been had; whether plaintiffs act[ed] promptly after [they became]
aware of the facts on which they based their complaint; whether
plaintiffs made an effort to redeem the property during the
redemption period; whether plaintiffs were represented by counsel
throughout the foreclosure process; and whether defendant relied
on the apparent validity of the sale by taking steps to protect its
interest in the subject property.”
Id. at 120–21(Markman, J. concurring) (citations omitted). We hold that Connolly cannot
establish the fraud and prejudice required to extend the redemption period, as none of her claims
are viable, as discussed below.
A. Wrongful Foreclosure
1. The Validity of an Affidavit Expunging a Sheriff’s Sale
Connolly’s principal argument on appeal is that the foreclosure was defective due to the
filing of the expungement affidavit. Her contention lacks merit.

-6-

Case: 13-2522

Document: 39-2

Filed: 09/09/2014

Page: 7

Case No. 13-2522, Connolly v. Deutsche Bank
Numerous foreclosure cases in Michigan have accepted the use of an affidavit expunging
a sheriff’s sale, yet very few have actually considered the validity of such a practice under the
authority of M.C.L. § 565.451a.7
In many of the cases concerning expungement affidavits, the courts accepted the practice
because the affidavit was not challenged.8 In others, the affidavit’s execution had the exact effect
the plaintiff had sought as relief.9 One Michigan case, which is most factually on point, does not
address the validity of the expungement affidavit even though it severed the prior redemption
period.10 The only relevant case that addresses the validity of an expungement affidavit is Cordes
v. Great Lakes Excavating & Equipment Rental, Inc., No. 304003, 2012 WL 2052789 (Mich.

7

M.C.L. § 565.451a provides in part as follows:
Sec. 1a. An affidavit stating facts relating to any of the following matters which
may affect the title to real property in this state made by any person having
knowledge of the facts or by any person competent to testify concerning such
facts in open court, may be recorded in the office of the register of deeds of the
county where the real property is situated:
(a) Birth, age, sex, marital status, death, name, residence, identity, capacity,
relationship, family history, heirship, homestead status and service in the armed
forces of parties named in deeds, wills, mortgages and other instruments affecting
real property;
(b) Knowledge of the happening of any condition or event which may terminate
an estate or interest in real property.

Mich. Comp. Laws Ann. § 565.451a(a)–(b) (West).
8
See Buttazzoni v. Nationstar, No. 13-CV-14901, 2014 WL 1031278, at *3 (E.D. Mich. March
14, 2014) (“Plaintiff has not included even one allegation concerning how the expungement
affected the second foreclosure process.”); see also Maltbie v. Bank of Am., 1:12-CV-1002,
2013 WL 6078945 (W.D. Mich. Nov. 19, 2013); Roche v. CitiMortgage, Inc., 12-CV-10266,
2012 WL 4498520 (E.D. Mich. Sept. 28, 2012); PNC Mortg. v. Lambert, 302178, 2012 WL
1367575 (Mich. Ct. App. Apr. 19, 2012).
9
See Freund v. Trott & Trott, P.C., No. 299011, 2011 WL 5064248 (Mich. App. Oct. 25, 2011).
10
See Colbert v. Fed. Nat. Mortgage Ass’n, 12-13844, 2013 WL 1629305 WL 1629305, at *2
(E.D. Mich. Apr. 16, 2013) (validity of the expungement affidavit was not challenged, and the
case was dismissed based on a lack of jurisdiction).
-7-

Case: 13-2522

Document: 39-2

Filed: 09/09/2014

Page: 8

Case No. 13-2522, Connolly v. Deutsche Bank
App., June 7, 2012). In Cordes, the court of appeals addressed competing interests in real
property, where one party recorded an affidavit stating that the plaintiff’s mortgage should not
have been discharged and that the mortgage remained in effect. The court ruled that “the
[owner’s] affidavit rehabilitated the constructive notice of that mortgage in the land record title
system.” Id. The Michigan Court of Appeals held that the expungement affidavit, pursuant to
M.C.L. 565.451a(b), can have effect because such an affidavit is based on “[k]knowledge of the
happening of any condition or event which may terminate an estate or interest in real property.”
Id. at *2 (citing M.C.L. 565.451a(b)). The court further held that the affidavit was “sufficient to
put interested persons on notice that the parcel was encumbered by a mortgage and that [the]
discharge of the mortgage was erroneous.” Id. at *2.
The Michigan Supreme Court has yet to address the validity of an expungement affidavit.
Therefore, we may look to the decisions of the appellate court. As the Michigan Court of
Appeals has decided the validity of an expungement affidavit in the case of a mortgage
discharge, we similarly hold that such an affidavit can effectively void a sheriff’s sale. See
Cordes, 2012 WL 2052789, at *2. The expungement affidavit used in the instant case was
sufficient to put interested persons on notice that the parcel was encumbered by a mortgage and
that the sheriff’s sale was inadvertently held.
Connolly relies heavily on PHH Mortg. Corp. v. O’Neal, No. 311233, 2013 WL 3025566
(Mich. Ct. App. June 18, 2013), where she claims the court ruled that a homeowner’s statutory
redemption rights cannot be unilaterally cut off by an expungement affidavit. (Def’s Brief at 28–
29). Connolly’s interpretation of O’Neal is erroneous. In O’Neal, the property in dispute, worth
approximately $80,000, was sold to the plaintiff at auction for $1000. Id. at *1. The defendant
obtained a quit claim deed from the original mortgagor and attempted to redeem the property

-8-

Case: 13-2522

Document: 39-2

Filed: 09/09/2014

Page: 9

Case No. 13-2522, Connolly v. Deutsche Bank
within the statutory period. Id. However, the plaintiff filed an expungement affidavit the same
day as the conveyance of the deed and refused to accept the $1000 redemption amount. Id. In a
two-count complaint, the plaintiff sought to quiet title to the property and to set aside the
sheriff’s deed on the mortgage foreclosure. The Michigan Court of Appeals affirmed the trial
court’s award of summary judgment for the defendant. While this case is revealing, the court in
O’Neal did not rule on the validity of the expungement affidavit. The court never discussed
M.C.L. § 565.451a, or the effect of a rescission of a foreclosure sale by affidavit. In fact, the
court simply ruled that the defendant had a right to redeem the property because the plaintiff’s
claims of clerical and scrivener’s error were not persuasive. Id. at *6. In this case, Connolly did
not try to redeem the property at the same time the expungement affidavit was executed. Instead,
she filed the instant complaint without making a single attempt at redeeming the property before
its expiration. Therefore, O’Neal is inapposite as to the validity of the expungement affidavit.
Because prior Michigan law has consistently accepted an affidavit expunging a sheriff’s
sale, as well as in other contexts such as mortgage discharges, this Court will similarly uphold
the affidavit’s validity. The affidavit, therefore, does not prove fraud or irregularity in the
foreclosure process and the redemption period cannot be extended. Connolly cannot prove
prejudice from such an affidavit, as none of her claims are viable.
2. Deutsche’s Standing to Collect on the Mortgage
Connolly also claims that Deutsche has not presented any evidence that it has standing to
collect on or enforce the Ameriquest Note. Connolly asserts that the subsequent assignments
were conducted through forged robo-signing,11 which makes the foreclosure voidable.

11

We have addressed the issue of robo-signatures recently and have not found that such practices
have prejudiced mortgagors. See Conlin, 714 F.3d at 362 (“[I]t is apparent that neither of
-9-

Case: 13-2522

Document: 39-2

Filed: 09/09/2014

Page: 10

Case No. 13-2522, Connolly v. Deutsche Bank
Connolly does not present any viable case law to support her position that Deutsche lacks
standing to foreclose. According to M.C.L. § 600.3204(d), a “party may foreclose a mortgage by
advertisement if . . . [t]he party foreclosing the mortgage is either the owner of the indebtedness
or of an interest in the indebtedness secured by the mortgage or the servicing agent of the
mortgage.” The district court properly determined that the third recorded assignment and
sheriff’s deed demonstrate that defendant is the mortgagee of record. According to Residential
Funding Co., LLC v. Saurman, 490 Mich. 909, 910 (Mich. 2011), “interest in the indebtedness”
includes “mortgagees of record among the parties entitled to foreclose by advertisement.”
Deutsche Bank is a mortgagee of record and has the power to foreclose the mortgage.
3. Standing to Challenge the Mortgage Assignments
Deutsche Bank argues that Connolly does not have standing to challenge the validity of
the mortgage assignments. It is well established that “a litigant who is not a party to an
assignment lacks standing to challenge that assignment.” Livonia Properties Holdings, LLC v.
12840-12976 Farmington Road Holdings, LLC, 399 F. App’x 98, 102 (6th Cir. 2010) (Merritt,
Rogers, Sutton). The court in Livonia established an exception to this rule, stating “[a]n obligor
may assert as a defense any matter which renders the assignment absolutely invalid or
ineffective, or void.” Id. (internal quotation marks omitted). Such defenses included
“nonassignability of the instrument, assignee’s lack of title, and a prior revocation of the
assignment,” all of which give the obligor standing because there was a possibility of “having to
pay the same debt twice.” Id.
Connolly alleges that the robo-signatures are forged and should not be given effect
because such fraud will render the chain of title voidable. The Court in Conlin ruled on this exact
Plaintiff’s theories—the ‘robo-signed’ assignment or MERS’s incapacity to assign—can support
this action.”).
- 10 -

Case: 13-2522

Document: 39-2

Filed: 09/09/2014

Page: 11

Case No. 13-2522, Connolly v. Deutsche Bank
question, following the framework from Livonia. The plaintiff in Conlin claimed the chain of
title of the defendant’s assigned mortgages was conducted through fraud or irregularity because
the assignments were “forged or ‘robo-signed.’ ” Conlin, 714 F.3d at 360. This Court held that
the plaintiff had no standing to challenge the assignments. Id. at 362. According to the Court, the
plaintiff was a third party to the assignments and could only prove that any defect was merely
voidable. Id. at 361–61. Connolly has not asserted any of the defenses from Livonia, nor is it
clear that any of the defenses apply. Therefore, Connolly does not have standing to challenge the
mortgage assignments.
Even if Connolly could prove an irregularity in the assignments, the court in Conlin
further explained that defects from a voidable foreclosure require the showing of prejudice.12 Id.
at 361. Such a showing of prejudice cannot be made. There is no evidence that Connolly was
misled into believing there was no sale. Rather, Connolly waited eleven months into the second
redemption period to file this suit, Connolly did not attempt to redeem the property within the
redemption period, and Connolly has been represented by counsel throughout the foreclosure
process. Furthermore, there is no showing that Connolly would have been liable to anyone but

12

As stated above, prejudice is proven if the defendant “would have been in a better position to
preserve [her] interest in the property absent defendant’s non-compliance with the statute.” Kim,
493 Mich. at 116. The concurring opinion in Kim provides factors to be considered when
determining prejudice:
[W]hether plaintiffs were misled into believing that no sale had
been had; whether plaintiffs act[ed] promptly after [they became]
aware of the facts on which they based their complaint; whether
plaintiffs made an effort to redeem the property during the
redemption period; whether plaintiffs were represented by counsel
throughout the foreclosure process; and whether defendant relied
on the apparent validity of the sale by taking steps to protect its
interest in the subject property.”
Id. at 120–21(Markman, J. concurring) (citations omitted).
- 11 -

Case: 13-2522

Document: 39-2

Filed: 09/09/2014

Page: 12

Case No. 13-2522, Connolly v. Deutsche Bank
Deutsche or would be in a better position to keep the property absent the defect. For these
reasons, Connolly cannot prove that she has standing to challenge the assignments or that she
was prejudiced by Deutsche’s assignments or foreclosure.13 In sum, the record does not contain
any evidence supporting Connolly’s challenges to the foreclosure and the district court’s ruling is
affirmed.
B. Slander of Title
On appeal, Connolly’s only slander of title argument is based on the unilateral
interference of her redemption rights through the filing of the expungement affidavit. To prove
slander of title, the plaintiff must make a showing that “the defendant maliciously published false
statements that disparaged a plaintiff’s right in property, causing special damages.” B & B Inv.
Group v. Gitler, 229 Mich. App. 1, 8 (Mich. Ct. App. 1998). To prove malice, “the plaintiff must
show that the defendant knowingly filed an invalid lien with the intent to cause the plaintiff
injury.” Stanton v. Dachille, 186 Mich. App. 247, 262 (Mich. Ct. App. 1990). Most importantly,
the statute of limitations on a slander of title claim is one year. Bonner v. Chicago Title Ins. Co.,
194 Mich. App. 462, 469 (Mich. Ct. App. 1992).
In this case, the affidavit of expungement was executed on December 8, 2010. The
complaint was filed on April 24, 2012; therefore, any invalid lien filed prior to April 24, 2011
would be time-barred. Since Connolly only raises the slander of title issue based on the
expungement affidavit, the statute of limitations prevents her claim because the affidavit was
executed before April 24, 2011. Even if it were within the applicable time frame, the

13

Connolly stated tangentially that all false assignments were a slander of her property,
therefore, giving her standing to question the mortgage assignments. Connolly failed to give
support for this allegation; therefore, in accordance with Rule 28 of the Rules of Appellate
Procedure, we treat this claim as waived on appeal. Fed. R. App. P. 28. See Langley v.
DaimlerChrysler Corp., 502 F.3d 475, 483 (6th Cir. 2007) (Daughtrey, McKeague, Reeves).
- 12 -

Case: 13-2522

Document: 39-2

Filed: 09/09/2014

Page: 13

Case No. 13-2522, Connolly v. Deutsche Bank
expungement affidavit was valid and there is no evidence that it was filed with the intent to cause
Connolly injury. Accordingly, we affirm the district court’s denial of Connolly’s slander of title
claim.
III
For the reasons stated above, the district court’s grant of Deutsche’s motion for summary
judgment is AFFIRMED. The district court’s denial of Connolly’s motion for partial summary
judgment is AFFIRMED. The district court’s denial of Connolly’s motion for reconsideration is
AFFIRMED.

- 13 -