If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re PETITION OF HILLSDALE COUNTY
TREASURER FOR FORECLOSURE.
HILLSDALE COUNTY TREASURER, UNPUBLISHED
December 28, 2023
Petitioner-Appellant,
v No. 362826
Hillsdale Circuit Court
TIMOTHY CARPENTER, LC No. 2020-000345-CZ
Claimant-Appellee.
In re PETITION OF HILLSDALE COUNTY
TREASURER FOR FORECLOSURE.
HILLSDALE COUNTY TREASURER,
Petitioner-Appellant,
v No. 362843
Hillsdale Circuit Court
CAROLYN F. RAYMOND, LC No. 2020-000345-CZ
Claimant-Appellee.
Before: FEENEY, PJ., and RICK and HOOD, JJ.
PER CURIAM.
These combined cases involve the disposition of proceeds remaining from the tax-
foreclosure sales of two properties. Petitioner, Hillsdale County Treasurer, appeals by delayed
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leave granted1 orders requiring petitioner to pay respondents, Timothy Carpenter (Docket
No. 362826) and Carolyn F. Raymond (Docket No. 362843), the proceeds remaining from the tax-
foreclosure sales of their properties and the satisfaction of each property’s outstanding taxes,
interest, penalties, and fees (collectively, the “tax debt”). Petitioner argues in both dockets that
the trial court erred by ordering the payment of the remaining proceeds to respondents who had
failed to file timely notices of their intentions to claim interests in the remaining proceeds (i.e.,
Form 5743), as required by MCL 211.78t(2). For reasons stated herein, we conclude that the trial
court erred in its interpretation and application of MCL 211.78t. Accordingly, we reverse the trial
court’s orders and remand for entry of an order denying respondents’ motions to disburse
remaining proceeds.
I. RELEVANT LEGAL BACKGROUND
The Michigan Supreme Court held in Rafaeli, LLC v Oakland Co, 505 Mich 429, 484; 952
NW2d 434 (2020), that former owners of properties sold at tax-foreclosure sales for more than
what was owed in taxes, interests, penalties, and fees had “a cognizable, vested property right to
the surplus proceeds resulting from the tax-foreclosure sale of their properties.” This right
continued to exist after fee simple title to the properties vested with the foreclosing governmental
unit (FGU). The FGU’s “retention and subsequent transfer of those proceeds into the county
general fund amounted to a taking of plaintiffs’ properties under Article 10, § 2 of [Const 1963],”
and the former owners were entitled to just compensation in the form of the return of the surplus
proceeds. Id. at 484-485. When the Court decided Rafaeli, the General Property Tax Act (GPTA),
MCL 211.1 et seq., did not provide a means by which property owners could recover their surplus
proceeds.
In response to Rafaeli, the Legislature passed 2020 PA 255 and 2020 PA 256, which were
given immediate effect on December 22, 2020. These acts purported to “codify and give full effect
to the right of a former holder of a legal interest in property to any remaining proceeds resulting
from the foreclosure and sale of the property to satisfy delinquent real property taxes under the
[GPTA] . . . .” Enacting Section 3 of 2020 PA 255; Enacting Section 3 of 2020 PA 256. At issue
in the current appeal is MCL 211.78t, a provision added to the GPTA by 2020 PA 256. Section 78t
provides the means for former owners to claim and receive any applicable “remaining proceeds”2
from the tax-foreclosure sales of their former properties.
On October 26, 2023, this Court in In re Petition of Muskegon Co Treasurer for
Foreclosure, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 363764); slip op at 1,
found that the statutory framework set forth in MCL 211.78t comports with “procedural due
process and other constitutional requirements.” The respondent property owners in Muskegon
Treasurer, like the respondents herein, argued that MCL 211.78t’s procedures were not the
1
In re Petition of Hillsdale Co Treasurer for Foreclosure, unpublished order of the Court of
Appeals, entered January 26, 2023 (Docket Nos. 362826 and 362843).
2
Rafaeli referred to “surplus proceeds,” and MCL 211.78t refers to “remaining proceeds.” We
use both phrases to denote the proceeds to which respondents are entitled after the tax-foreclosure
sale and the satisfaction of their tax, regardless of how that amount is calculated.
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exclusive means for reclaiming surplus proceeds after a foreclosure sale and that the petitioner
engaged in an unlawful taking of their property. Id. at ___; slip op at 3. This Court disagreed:
“The specific language of MCL 211.78t indicates our Legislature’s intent for the statute to serve
as the sole mechanism by which former property owners can recovery proceeds remaining after
the sale or transfer of their foreclosed properties and the satisfaction of their tax debt and related
costs.” Id. at ___; slip op at 5 (emphasis added). In finding that MCL 211.78t’s statutory scheme
satisfied due process, this Court observed:
[T]he statutory scheme mandates that an FGU (foreclosing governmental unit) must
provide, at the time a judgment of foreclosure is effective, an explanation to all
persons with an interest in property of their right to claim any proceeds remaining
after the sale and satisfaction of tax debt. MCL 211.78g(2), MCL 211.78i(7). If a
former property owner submits a timely Form 5743, then the FGU must pay out
any remaining proceeds to that person in accordance with MCL 211.78t. The FGU
has no discretion under this statutory framework. Id. at ___; slip op at 8.
This Court rejected the argument that respondents are entitled to post-sale notice of the remaining
surplus. “Petitioner’s notices were not rendered inadequate by the fact that they were sent to
respondents before the tax-foreclosure sale—if anything, the earlier notice was an even greater
safeguard of respondents’ rights than the post-sale notice that they advocate for now.” Id., at ___;
slip op at 9. This Court also determined that respondents had the opportunity to begin recovering
the excess proceeds through “the minimally burdensome completion of a single-page form” which
did “not justify application of the harsh-and-unreasonable consequences exception to the statutory
notice requirement of MCL 211.78t(2).” Id. at __; slip op at 7.
Finally, this Court clarified that, pursuant to Nelson v City of New York, 352 US 103; 77 S
Ct 195; 1 L Ed 2d (1956), no compensable taking occurred when property owners had a statutory
path to recover surplus proceeds but “failed to avail themselves of that procedure.” Id. at ___; slip
op at 10. Accordingly, the Muskegon Treasurer respondents failed to show that MCL 211.78t or
any part of the “statutory scheme violates due process or the Takings Clause,” Const 1963, art 10,
sec 2.
Clearly, pursuant to Muskegon Treasurer, the trial court erred by granting respondents’
motions to disburse the remaining proceeds even though respondents did not comply with the
requirements of MCL 211.78t(2).
II. PERTINENT FACTS AND PROCEEDINGS
The material facts in this case are undisputed. Each respondent owned real property in
Hillsdale County, and each respondent failed to pay the property taxes assessed on their property.
Carpenter’s failure to pay property taxes resulted in a tax and fee total of $5,757.68, and
Raymond’s failure to pay property taxes resulted in a tax and fee total of $1,703.16. Petitioner
filed a verified petition for foreclosure under the GPTA that included both properties. The trial
court granted the petition and entered a judgment of foreclosure on February 26, 2021.
Respondents did not redeem their respective properties. As a consequence, the foreclosure became
effective on March 31, 2021, and “absolute title” vested in petitioner by operation of
MCL 211.78k(6). Petitioner sold Carpenter’s foreclosed property at auction on August 18, 2021,
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for $36,250. After satisfaction of his tax debt and deduction of the 5% sales commission mandated
by MCL 211.78t(9), $28,679.82 remained. Petitioner then sold Raymond’s foreclosed property at
auction on August 26, 2021, for $24,000. After satisfaction of her tax debt and deduction of the
5% sales commission mandated by MCL 211.78t(9), $22,296.84 remained. Neither respondent
timely submitted a Form 5743 that would have signified their intention to claim an interest in
remaining proceeds by the July 1 immediately following the foreclosure of their properties. See
MCL 211.78t(2).
Instead, each respondent moved in the trial court to claim the remaining proceeds from the
tax-foreclosure sale of their properties. Petitioner opposed their claims on the basis that they had
not timely complied with the notice requirement found in § 78t(2). After hearing oral argument
on respondents’ motions, the trial court determined that filing a notice of intention to claim an
interest in remaining proceeds was discretionary and that § 78t(2) did not mandate a deadline for
filing the form. On the basis of these determinations, the trial court granted respondents’ motions
to disburse remaining proceeds. Petitioner now appeals.
III. INTERPRETATION AND APPLICATION OF MCL 211.78t
Petitioner contends that the trial court erred by awarding tax-foreclosure sales proceeds to
respondents who did not timely comply with the notice requirements of MCL 211.78t(2).3 We
agree. We review de novo whether the trial court properly interpreted and applied the relevant
statutes. Makowski v Governor, 317 Mich App 434, 441; 894 NW2d 753 (2016).
In Muskegon Treasurer, ___ Mich App at ___; slip op at 1, 12, this Court made clear that
the statutory framework in MCL 211.78t “comports with procedural due process and other
constitutional requirements. Furthermore, the county treasurer followed the law by providing the
required notices. Unfortunately, respondents did not similarly follow the law, and because they
did not, they forfeited any right to the proceeds that remained after the satisfaction of their tax
debts.” We believe that Muskegon Treasurer addresses all the statutory construction and
constitutional arguments that were raised in the trial court, save for two minor issues, raised by
petitioner that we need not addressed and clarifies that the trial court erred in determining that
respondents were entitled to receive the surplus proceeds of the foreclosure sales despite not timely
filing the Form 5743. Because the facts presented in Muskegon Treasurer closely resemble those
3
As an initial matter, we reject the contention that petitioner lacks standing to appeal because it is
not an “aggrieved party.” It cannot seriously be argued that petitioner does not have an interest in
the proper, uniform, and predictable interpretation of MCL 211.78t. The Legislature intended for
2020 PA 255 and 2020 PA 256 to “codify and give full effect” to the right of foreclosed property
owners to the proceeds remaining after the tax-foreclosure sale of their properties and the
satisfaction of their tax debts. The Legislature identified § 78t as the “exclusive mechanism for a
claimant to claim and receive any applicable remaining proceeds under the laws of this state.”
MCL 211.78t(11). If the trial court’s orders requiring petitioner to pay respondents remaining
proceeds contradicted the requirements of § 78t, petitioner is aggrieved for the purposes of
appellate standing to challenge the trial court’s implicit conclusion that petitioner did not properly
fulfill its duties under the statute.
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in the case before the Court, i.e., property owners whose land was foreclosed upon for failure to
pay property taxes and who did not redeem the property or file the Form 5743, petitioner Hillsdale
County Treasurer is correct that respondents cannot successfully challenge the constitutionality or
efficacy of MCL 211.78t and are foreclosed from recovering any surplus or remaining proceeds.4
Based upon Muskegon Treasurer, we find the trial court erred in its interpretation and application
of MCL 211.78t. None of respondent’s constitutional arguments convince us otherwise.
Accordingly, we reverse and remand for the trial court to enter judgment consistent with
Muskegon Treasurer, supra. Petitioners may assess costs.
Reversed and remanded.
/s/ Kathleen A. Feeney
/s/ Michelle M. Rick
/s/ Noah P. Hood
4
Muskegon Treasurer, ___ Mich App at ___; slip op at 12.
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