SUMMONS AND COMPLAINT 16-572-CH WEBB
August 19, 2016 at 3:47 p.m.
By -
STATE OF MICHIGAN
JUDICIAL DISTRICT 30TH JUDICIAL CIRCUIT COUNTY PROBATE
CASE NO. 16-572-CH
HON. JUDGE JAMES S. JAMO
COURT ADDRESS: 313 WEST KALAMAZOO, PO BOX 40771, LANSING, MICHIGAN 48901-7971
COURT TELEPHONE NO. (517) 483-6500
Plaintiff name(s), address(es), and telephone no(s). CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY
FSB, NOT IN ITS INDIVIDUAL CAPACITY
BUT AS TRUSTEE OF ARLP TRUST 3, C/O - PLAINTIFF'S ATTORNEY
Plaintiff's attorney, bar no., address, and telephone no.
POTESTIVO & ASSOCIATES, P.C.
BY: DAVID G. MAROWSKE (P57261)
251 DIVERSION STREET ROCHESTER, MICHIGAN 48307
PHONE: (248) 853-4400, EXT. 1105
Defendant name(s), address(es), and telephone no(s).
CHARLES H. WEBB OR HIS UNKNOWN HEIRS,
DEVISEES, OR ASSIGNEES
7194 DATELAND STREET
ENGLEWOOD, FLORIDA 34224-8443
**DEFENDANT 1 OR 1**
SUMMONS - NOTICE TO THE DEFENDANT: In the name of the people of the State of Michigan you are notified:
1. You are being sued.
2. You have 21 days after receiving this summons to file a written answer with the court and serve a copy on the other party or take other lawful action with the court (28 days if you were served by mail or you were served outside this state). (MCR2.111(C))
3. If you do not answer or take other action within the time allowed, judgment may be entered against you for the relief demanded in the complaint.
Issued: July 19, 2016, This Summons Expires: Oct. 18, 2016, Court Clerk: Faraduffey.
*This summons is invalid unless served on or before its expiration date. This document must be sealed by the seal of the court.
COMPLAINT - Instruction: The following is information that is required to be in the caption of every complaint and is to be completed by the plaintiff. Actual allegations and the claim for relief must be stated on additional complaint pages and attached to this form.
[ ] This is a business case in which all or part of the action includes a business or commercial dispute under MCL 600.035. Family Division Cases.
( ) There is no other pending or resolved action within the jurisdiction of the family division of circuit court involving the family or family members of the parties.
( ) An action within the jurisdiction of the family division of the circuit court involving the family or family members of the parties has been previous filed in__________Court.
The action ( ) remains ( ) is no longer pending. The docket number and the judge assigned to the action are:
Docket No._____Judge______Bar No.____
General Civil Cases
4 There is no other pending or resolved civil action arising out of the same transaction or occurrence as alleged in the complaint.
( ) A civil action between these parties or other parties arising out of the transaction or occurrence as alleged in the complaint has been previously filed in________Court.
The action ( ) remains ( ) is no longer pending. The docket number and the judge assigned to the action are:
Docket No._____Judge______Bar No.____
Venue
Plaintiff(s) residence (include city, township, or village)
city of West Palm Beach, State of Florida
Defendant(s) residence (include city, township, or village)
City of Englewood, State of Florida
Place where action arose or business conducted
Township of Bunkerhill, County of Ingham, State of Michigan.
Date 7-15-16.
David G. Marwoske (PS7261), Attorney for Plaintiff.
If you require special accommodations to use the court because of a disability or if you require foreign language interpreter to help you fully participate in court proceedings, please contact the court immediately to make arrangements.
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF INGHAM
CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF ARLP TRUST 3, Plaintiff,
v.
CHARLES H. WEBB OR HIS UNKNOWN HEIRS, DEVISEES, OR ASSIGNEES, a deceased individual, Defendants.
Case No 16-572-CH
Hon. James S. Jamo
POTESTIVO & ASSOCIATES, P.C.
By: David G. Marowske (P57261)
Attorneys for Plaintiff
251 Diversion Street
Rochester, Michigan 48307
Phone: (248) 853-4400
THERE IS NO OTHER CIVIL ACTION BETWEEN THESE PARTIES ARISING OUT OF THE SAME TRANSACTION OR OCCURRENCE AS ALLEGED IN THIS COMPLAINT PENDING IN THIS COURT, NOR HAS ANY SUCH ACTION BEEN PREVIOUSLY FILED AND DISMISSED OR TRANSFERRED AFTER HAVING BEEN ASSIGNED TO A JUDGE, NOR DO I KNOW OF ANY OTHER CIVIL ACTION, NOR BETWEEN THESE PARTIES, ARISING OUT OF THE SAME TRANSACTION OR OCCURRENCE AS ALLEGED IN THIS COMPLAINT THAT IS EITHER PENDING OR WAS PREVIOUSLY FILED AND DISMISSED, TRANSFERRED, OR OTHERWISE DISPOSED OF AFTER HAVING BEEN ASSIGNED TO A JUDGE IN THIS COURT.
David G. Marowske (P57261)
COMPLAINT
NOW COMES Plaintiff, Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, Not In Its Individual Capacity But As Trustee of ARLP Trust 3 (“Plaintiff”), by and through its attorneys, Potestivo & Associates, P.C., for its Complaint states as follows:
PARTIES, JURISDICTION AND VENUE
1. Plaintiff is a savings bank that conducts business in the Township of Bunkerhill, County of Ingham, and State of Michigan.
2. Defendant Charles H. Webb, or his unknown heirs, devisees, or assignees (hereafter “Charles Webb”), is a deceased individual or his unknown heirs, devisees or assignees claiming an interest in real property located within the Township of Bunkerhill, County of Ingham, and State of Michigan.
3. The real property, which is the subject matter of this lawsuit, is situated at 2160 Fitchburg Road, Township of Bunkerhill, County of Ingham, and State of Michigan (the “Property”), and is more particularly described as follows:
BEGINNING AT A POINT 3-2/3 RODS WEST AND 11 RODS SOUTH OF THE NORTHWEST CORNER OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 36, TOWN 1 NORTH, RANGE 1 EAST, BUNKERHILL TOWNSHIP, INGHAM COUNTY, MICHIGAN; THENCE SOUTH 3 RODS, THENCE WEST 13 RODS, THENCE NORTH 3 RODS, THENCE EAST 13 RODS TO THE PLACE OF BEGINNING.
PARCEL ID 33-15-15-36-102-006
COMMONLY KNOWN AS: 2160 FITCHBURG ROAD, STOCKBRIDGE, MICHIGAN 49285
4. Upon information and belief, the Township of Bunkerhill is encompassed within Stockbridge, with regard to the commonly known as address.
5. A notice of lis pendens will promptly be recorded in the office of the Register of Deeds for Ingham County, Michigan.
6. Jurisdiction is proper in this Court pursuant to MCL 600.605.
7. Additionally, jurisdiction is proper in this Court pursuant to MCL 600.2932 as this is an action to determine interests in land.
8. Venue is proper in this Court pursuant to MCL 600.1605 as the Property at issue is located in Ingham County, Michigan.
GENERAL ALLEGATIONS
9. Plaintiff hereby incorporates by reference each and every allegation contained in Paragraphs 1 through 8 of this Complaint.
10. On October 1, 1946, non-parties Sedgwick V. Lawrence and Alzina B. Lawrence conveyed the following real property to Defendant Charles H. Webb and non-party Barbara L. Webb, as husband and wife and as tenants by the entirety by way, of a Warranty Deed recorded on October 8, 1946, in Liber 566, Page 610 of the Ingham County Records:
BEGINNING AT A POINT 16-2/3 RODS WEST OF THE NORTHWEST CORNER OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4; THENCE EAST 5 RODS, SOUTH 11 RODS, WEST 5 RODS, THENCE NORTH 11 RODS TO THE PLACE OF BEGINNING, ALL ON SECTION 36, IN TOWN 1 NORTH, RANGE ONE EAST, MICHIGAN.
(herein referred to as “Tract 1”). (EXHIBIT 1 – TRACT 1: 1946 WARRANTY DEED).
11. On September 13, 1955, non-parties Sedgwick V. Lawrence and Alzina B. Lawrence conveyed the following real property to Defendant Charles H. Webb and non-party Barbara L. Webb, as husband and wife and as tenants by the entirety, by way of a Warranty Deed recorded on September 14, 1955, in Liber 709, Page 57 of the Ingham County Records:
BEGINNING AT A POINT 11-2/3 RODS WEST OF THE NORTHWEST CORNER OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 36, TOWN 1 NORTH, RANGE 1 EAST, BUNKERHILL TOWNSHIP, INGHAM COUNTY, MICHIGAN, THENCE EAST 8 RODS, SOUTH 11 RODS, WEST 8 RODS, THENCE NORTH 11 RODS TO THE PLACE OF BEGINNING. SUBJECT TO THE RIGHTS OF THE PUBLIC TO THE NORTH 33 FEET, KNOWN AS FITCHBURG ROAD.
(herein referred to as “Tract 2”). (EXHIBIT 2 – TRACT 2: 1955 WARRANTY DEED).
12. On January 25, 1961, non-parties Sedgwick V. Lawrence and Alzina B. Lawrence conveyed the following real property, which is the subject of the instant Complaint, to Defendant Charles H. Webb and non-party Barbara L. Webb, as husband and wife and as tenants by the entirety, by way of a Warranty Deed recorded on January 28, 1955, in Liber 887, Page 860 of the Ingham County Records:
BEGINNING AT A POINT 3-2/3 RODS WEST AND 11 RODS SOUTH OF THE NORTHWEST CORNER OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 36, TOWN 1 NORTH, RANGE 1 EAST, BUNKERHILL TOWNSHIP, INGHAM COUNTY, MICHIGAN; THENCE SOUTH 3 RODS, THENCE WEST 13 RODS, THENCE NORTH 3 RODS, THENCE EAST 13 RODS TO THE PLACE OF BEGINNING.
(herein referred to as “Tract 3” or the “Subject Property”). (EXHIBIT 3 – TRACT 3: 1961 WARRANTY DEED).
13. Tract 1, Tract 2, and Tract 3 are all assessed property taxes as a single piece of property under Tax I.D. No. 33-15-15-36-102-006 and are commonly known under one address which is 2160 Fitchburg Road, Stockbridge, Michigan 49285. (EXHIBIT 4 – DETAILED TAX INFORMATION).
14. On May 17, 1976, Defendant Charles H. Webb and non-party Barbara L. Webb1, as husband and wife, conveyed Tracts 1 and 2 to non-parties Winfred Williams and Donna Williams by way of a Warranty Deed recorded on June 18, 1976, in Liber 1185, Page 998 of the Ingham County Records. (EXHIBIT 6 – TRACT 1 AND 2: 1976 WARRANTY DEED INTO WILLIAMS).
15. Upon information and belief, it was the intention of Defendant Charles H. Webb and non-party Barbara L. Webb to convey all of 2160 Fitchburg Road, Stockbridge, Michigan 49285, to include Tract 1, Tract 2, and Tract 3 to non-parties Winfred Williams and Donna Williams, however, there was a mistake in drafting the deed in that it left Tract 3 out of the legal description resulting in an illegal lot split and an incomplete, landlocked parcel in Tract 3.
16. On May 17, 1976, non-parties Winfred Williams and Donna Williams conveyed Tracts 1 and 2 to non-parties James C. Craft and Charlotte M. Craft by way of a Warranty Deed recorded on June 18, 1976, in Liber 1185, Page 1001 of the Ingham County Records. (EXHIBIT 7 – TRACT 1 AND 2: 1976 WARRANTY DEED INTO CRAFTS).
17. On June 29, 1984, non-parties James C. Craft and Charlotte M. Craft conveyed Tracts 1 and 2 to non-parties Ira Jack Smail and Cheryl A. Smail by way of a Warranty Deed recorded on July 13, 1984, in Liber 1475, Page 523 of the Ingham County Records. (EXHIBIT 8 – TRACT 1 AND 2: 1984 WARRANTY DEED).
18. On September 8, 1989, Tracts 1 and 2 were sold at a mortgage foreclosure sale and were conveyed to non-party Security Savings Bank by way of a Sheriff’s Deed on Mortgage Sale (“1989 Sheriff’s Deed”) recorded on September 19, 1989, in Liber 1776, Page 1183 of the Ingham County Records. (EXHIBIT 9 – TRACT 1 AND 2: 1989 SHERIFFS DEED).
19. Tracts 1 and 2 were redeemed from the 1989 mortgage foreclosure sale and the 1989 Sheriff’s Deed was declared void and to have no effect. (EXHIBIT 10 – TRACT 1 AND 2: CERTIFICATE OF REDEMPTION).
20. On December 18, 1989, non-parties Ira Jack Smail and Cheryl A. Smail conveyed Tracts 1 and 2 to non-parties Michael D. Adkins and Rhonda A. Adkins by way of a Warranty Deed recorded on December 28, 1989, in Liber 1795, Page 215 of the Ingham County Records. (EXHIBIT 11 – TRACT 1 AND 2: 1989 WARRANTY DEED).
21. On November 18, 1993, non-parties Michael D. Adkins and Rhonda A. Adkins conveyed Tracts 1 and 2 to non-parties Thomas Legasse and Linda M. Legasse by way of a Warranty Deed recorded on February 3, 1994, in Liber 2149, Page 62 of the Ingham County Records. (EXHIBIT 12 – TRACT 1 AND 2: 1994 WARRANTY DEED).
22. On September 2, 1997, non-parties Thomas Legasse and Linda M. Legasse conveyed Tracts 1 and 2 to non-parties Brian J. Medbury and Lynda Medbury by way of a Warranty Deed recorded on September 10, 1997, in Liber 2498, Page 960 of the Ingham County Records. (EXHIBIT 13 – TRACT 1 AND 2: 1997 WARRANTY DEED).
23. On Jun 8, 2000, all of Lynda Medbury’s interest in Tracts 1 and 2 was extinguished by way of a Judgment of Divorce recorded on August 7, 2000, in Liber 2861, Page 221 of the Ingham County Records. (EXHIBIT 14 – JUDGMENT OF DIVORCE).
24. On April 9, 2001, non-party Brian J. Medbury conveyed Tracts 1 and 2 to non-parties Brian J. Medbury and Sherry L. Burrows by way of a Quit Claim Deed recorded on May 29, 2001, in Liber 2899, Page 79 of the Ingham County Records. (EXHIBIT 15 – TRACT 1 AND 2: 2001 QUIT CLAIM DEED).
25. On September 30, 2004, non-parties Brian J. Medbury and Sherry L. Burrows granted a mortgage (“Mortgage”) over Tracts 1 and 2 in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for Quicken Loans Inc. as security for a certain loan (“Loan”) and the Mortgage was recorded on October 15, 2004, in Liber 3135, Page 5 of the Ingham County Records. (EXHIBIT 16 – MORTGAGE).
26. On October 5, 2004, non-party Sherry L. Burrows conveyed her interest in Tracts 1 and 2 to non-party Brian J. Medbury by way of a Quit Claim Deed recorded on November 16, 2004, in Liber 3139, Page 360 of the Ingham County Records. (EXHIBIT 17 – TRACT 1 AND 2: 2004 QUIT CLAIM DEED).
27. The Mortgage was subsequently assigned to Plaintiff via mesne assignments of mortgage, with the last of which being dated March 19, 2014, and recorded March 27, 2014, as Instrument Number 2014-012818 of the Ingham County Records. (EXHIBIT 18 – ASSIGNMENT OF MORTGAGE).
28. On February 15, 2016, non-parties Brian J. Medbury and Aimee Medbury conveyed the mortgaged property to Plaintiff by way of a Deed in Lieu of Foreclosure recorded on March 18, 2016, as Instrument Number 2016-009085. (EXHIBIT 19 – DEED IN LIEU OF FORECLOSURE).
29. As evidenced on the first page of the Mortgage, it was the intention of the parties to the Mortgage to encumber the real property assessed as Tax I.D. No. 33-15-15-36-102-006 and commonly known as 2160 Fitchburg, Bunkerhill Township, Michigan 49285 as security for the Loan. (EXHIBIT 16).
30. Because the May 17, 1976, Warranty Deed conveying 2160 Fitchburg from Defendant Charles H. Webb and non-party Barbara L. Webb to Winfred Williams and Donna Williams did not include the proper legal description that would have included Tract 3, only Tracts 1 and 2 were ultimately encumbered by Plaintiff’s Mortgage and conveyed to Plaintiff by the Deed in Lieu of Foreclosure. (EXHIBITS 6 THROUGH 19).
31. As a result of the excluded legal property description that should have included Tract 3 in the property that was intended to be encumbered by the Mortgage, there remains a section (Tract 3) of the real property assessed as Tax I.D. No. 33-15-15-36-102-006 and commonly known as 2160 Fitchburg, Bunkerhill Township, Michigan 49285 that Defendant Charles H. Webb or his Unknown Heirs, Devisees or Assignees may be claiming an interest in.
32. Therefore, Plaintiff brings the instant action to quiet title of Tract 3 into Plaintiff’s name and to extinguish any claim that Defendant Charles H. Webb or his Unknown Heirs, Devisees or Assignees may have in Tract 3.
33. Upon information and belief, Defendant Charles Webb became deceased on May 28, 1996.
34. Upon information and belief, there is no record of the distribution of Defendant Charles Webb’s interest in Tract 3.
35. Plaintiff has made diligent attempts to locate any and all heirs of Charles Webb and has identified no potential heirs.
36. Plaintiff has complied with the requirements of MCR 2.201(D). (EXHIBIT 20 – AFFIDAVIT OF UNKNOWN HEIRS).
37. Pursuant to MCR 2.01(D), Plaintiff is naming Defendant Charles Webb or His Unknown Heirs, Devisees, and Assigns as the proper party Defendant.
38. The statement of title upon which Plaintiff relies as to its interest in the Property is attached hereto pursuant to MCR 3.411(C)(2). (EXHIBIT 21 – TITLE COMMITMENT).
COUNT I - QUIET TITLE
39. Plaintiff hereby incorporates by reference each and every allegation contained within Paragraphs 1 through 38 of this Complaint.
40. A Michigan quiet title action is a statutory cause of action to determine interests in property of controversy.
41. MCL §600.2932(1) states:
“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.”
42. MCL §600.2932(3) states:
“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.”
43. Plaintiff’s claim of interest in the Property is that of a fee simple interest.
44. Defendant’s claim of interest in the Property is that of a fee simple interest that was, upon information and belief, intended to be transferred with Tract 1 and Tract 2 and has otherwise been abandoned by Defendant since 1976.
45. Plaintiff’s claim of interest in the Property is superior claims of Defendant.
46. Upon information and belief, the County has not and cannot split Tract 3 from Tract 1 and Tract 2 as doing so would cause Tract 3 to become landlocked.
47. Therefore, the legal description of Tract 3 should have been included in the legal description of the real property assessed as Tax I.D. No. 33-15-15-36-102-006 and commonly known as 2160 Fitchburg, Bunkerhill Township, Michigan 49285 but was somehow inadvertently left out of the May 17, 1976, Warranty Deed from Defendant Charles H. Webb and non-party Barbara L. Webb to non-parties Winfred Williams and Donna Williams [Exhibit 6] and consequently each subsequent transfer/encumbrance of the Property as seen in Exhibits 7-19.
WHEREFORE, Plaintiff, Nationstar Mortgage, LLC, hereby respectfully requests that this Honorable Court enter an Order declaring:
A. Defendant Charles H. Webb, or his unknown heirs, devisees, or assignees has no estate, right, title, or interest in the real property legal described as:
BEGINNING AT A POINT 3-2/3 RODS WEST AND 11 RODS SOUTH OF THE NORTHWEST CORNER OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 36, TOWN 1 NORTH, RANGE 1 EAST, BUNKERHILL TOWNSHIP, INGHAM COUNTY, MICHIGAN; THENCE SOUTH 3 RODS, THENCE WEST 13 RODS, THENCE NORTH 3 RODS, THENCE EAST 13 RODS TO THE PLACE OF BEGINNING;
(herein after referenced as “the Property”).
B. Defendant Charles H. Webb, or his unknown heirs, devisees, or assignees be forever enjoined from asserting any estate, right, title, or interest in the Property, adverse to Plaintiff’s herein;
C. Title to the Property is quieted in the name of Plaintiff, and Plaintiff is the record title holder of the Property and
D. Grant any other relief that is equitable and just.
Respectfully submitted,
POTESTIVO & ASSOCIATES, P.C.
Dated: July ______, 2016
By: David Marowske (P57261), Attorney for Plaintiff
251 Diversion Street
Rochester, Michigan 48307
Phone: (248) 853-4400
8-23,30, 9-6 hspaxlp
STATE OF MICHIGAN
JUDICIAL DISTRICT 30TH JUDICIAL CIRCUIT COUNTY PROBATE
CASE NO. 16-572-CH
HON. JUDGE JAMES S. JAMO
COURT ADDRESS: 313 WEST KALAMAZOO, PO BOX 40771, LANSING, MICHIGAN 48901-7971
COURT TELEPHONE NO. (517) 483-6500
Plaintiff name(s), address(es), and telephone no(s). CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY
FSB, NOT IN ITS INDIVIDUAL CAPACITY
BUT AS TRUSTEE OF ARLP TRUST 3, C/O - PLAINTIFF'S ATTORNEY
Plaintiff's attorney, bar no., address, and telephone no.
POTESTIVO & ASSOCIATES, P.C.
BY: DAVID G. MAROWSKE (P57261)
251 DIVERSION STREET ROCHESTER, MICHIGAN 48307
PHONE: (248) 853-4400, EXT. 1105
Defendant name(s), address(es), and telephone no(s).
CHARLES H. WEBB OR HIS UNKNOWN HEIRS,
DEVISEES, OR ASSIGNEES
7194 DATELAND STREET
ENGLEWOOD, FLORIDA 34224-8443
**DEFENDANT 1 OR 1**
SUMMONS - NOTICE TO THE DEFENDANT: In the name of the people of the State of Michigan you are notified:
1. You are being sued.
2. You have 21 days after receiving this summons to file a written answer with the court and serve a copy on the other party or take other lawful action with the court (28 days if you were served by mail or you were served outside this state). (MCR2.111(C))
3. If you do not answer or take other action within the time allowed, judgment may be entered against you for the relief demanded in the complaint.
Issued: July 19, 2016, This Summons Expires: Oct. 18, 2016, Court Clerk: Faraduffey.
*This summons is invalid unless served on or before its expiration date. This document must be sealed by the seal of the court.
COMPLAINT - Instruction: The following is information that is required to be in the caption of every complaint and is to be completed by the plaintiff. Actual allegations and the claim for relief must be stated on additional complaint pages and attached to this form.
[ ] This is a business case in which all or part of the action includes a business or commercial dispute under MCL 600.035. Family Division Cases.
( ) There is no other pending or resolved action within the jurisdiction of the family division of circuit court involving the family or family members of the parties.
( ) An action within the jurisdiction of the family division of the circuit court involving the family or family members of the parties has been previous filed in__________Court.
The action ( ) remains ( ) is no longer pending. The docket number and the judge assigned to the action are:
Docket No._____Judge______Bar No.____
General Civil Cases
4 There is no other pending or resolved civil action arising out of the same transaction or occurrence as alleged in the complaint.
( ) A civil action between these parties or other parties arising out of the transaction or occurrence as alleged in the complaint has been previously filed in________Court.
The action ( ) remains ( ) is no longer pending. The docket number and the judge assigned to the action are:
Docket No._____Judge______Bar No.____
Venue
Plaintiff(s) residence (include city, township, or village)
city of West Palm Beach, State of Florida
Defendant(s) residence (include city, township, or village)
City of Englewood, State of Florida
Place where action arose or business conducted
Township of Bunkerhill, County of Ingham, State of Michigan.
Date 7-15-16.
David G. Marwoske (PS7261), Attorney for Plaintiff.
If you require special accommodations to use the court because of a disability or if you require foreign language interpreter to help you fully participate in court proceedings, please contact the court immediately to make arrangements.
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF INGHAM
CHRISTIANA TRUST, A DIVISION OF WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT AS TRUSTEE OF ARLP TRUST 3, Plaintiff,
v.
CHARLES H. WEBB OR HIS UNKNOWN HEIRS, DEVISEES, OR ASSIGNEES, a deceased individual, Defendants.
Case No 16-572-CH
Hon. James S. Jamo
POTESTIVO & ASSOCIATES, P.C.
By: David G. Marowske (P57261)
Attorneys for Plaintiff
251 Diversion Street
Rochester, Michigan 48307
Phone: (248) 853-4400
THERE IS NO OTHER CIVIL ACTION BETWEEN THESE PARTIES ARISING OUT OF THE SAME TRANSACTION OR OCCURRENCE AS ALLEGED IN THIS COMPLAINT PENDING IN THIS COURT, NOR HAS ANY SUCH ACTION BEEN PREVIOUSLY FILED AND DISMISSED OR TRANSFERRED AFTER HAVING BEEN ASSIGNED TO A JUDGE, NOR DO I KNOW OF ANY OTHER CIVIL ACTION, NOR BETWEEN THESE PARTIES, ARISING OUT OF THE SAME TRANSACTION OR OCCURRENCE AS ALLEGED IN THIS COMPLAINT THAT IS EITHER PENDING OR WAS PREVIOUSLY FILED AND DISMISSED, TRANSFERRED, OR OTHERWISE DISPOSED OF AFTER HAVING BEEN ASSIGNED TO A JUDGE IN THIS COURT.
David G. Marowske (P57261)
COMPLAINT
NOW COMES Plaintiff, Christiana Trust, a Division of Wilmington Savings Fund Society, FSB, Not In Its Individual Capacity But As Trustee of ARLP Trust 3 (“Plaintiff”), by and through its attorneys, Potestivo & Associates, P.C., for its Complaint states as follows:
PARTIES, JURISDICTION AND VENUE
1. Plaintiff is a savings bank that conducts business in the Township of Bunkerhill, County of Ingham, and State of Michigan.
2. Defendant Charles H. Webb, or his unknown heirs, devisees, or assignees (hereafter “Charles Webb”), is a deceased individual or his unknown heirs, devisees or assignees claiming an interest in real property located within the Township of Bunkerhill, County of Ingham, and State of Michigan.
3. The real property, which is the subject matter of this lawsuit, is situated at 2160 Fitchburg Road, Township of Bunkerhill, County of Ingham, and State of Michigan (the “Property”), and is more particularly described as follows:
BEGINNING AT A POINT 3-2/3 RODS WEST AND 11 RODS SOUTH OF THE NORTHWEST CORNER OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 36, TOWN 1 NORTH, RANGE 1 EAST, BUNKERHILL TOWNSHIP, INGHAM COUNTY, MICHIGAN; THENCE SOUTH 3 RODS, THENCE WEST 13 RODS, THENCE NORTH 3 RODS, THENCE EAST 13 RODS TO THE PLACE OF BEGINNING.
PARCEL ID 33-15-15-36-102-006
COMMONLY KNOWN AS: 2160 FITCHBURG ROAD, STOCKBRIDGE, MICHIGAN 49285
4. Upon information and belief, the Township of Bunkerhill is encompassed within Stockbridge, with regard to the commonly known as address.
5. A notice of lis pendens will promptly be recorded in the office of the Register of Deeds for Ingham County, Michigan.
6. Jurisdiction is proper in this Court pursuant to MCL 600.605.
7. Additionally, jurisdiction is proper in this Court pursuant to MCL 600.2932 as this is an action to determine interests in land.
8. Venue is proper in this Court pursuant to MCL 600.1605 as the Property at issue is located in Ingham County, Michigan.
GENERAL ALLEGATIONS
9. Plaintiff hereby incorporates by reference each and every allegation contained in Paragraphs 1 through 8 of this Complaint.
10. On October 1, 1946, non-parties Sedgwick V. Lawrence and Alzina B. Lawrence conveyed the following real property to Defendant Charles H. Webb and non-party Barbara L. Webb, as husband and wife and as tenants by the entirety by way, of a Warranty Deed recorded on October 8, 1946, in Liber 566, Page 610 of the Ingham County Records:
BEGINNING AT A POINT 16-2/3 RODS WEST OF THE NORTHWEST CORNER OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4; THENCE EAST 5 RODS, SOUTH 11 RODS, WEST 5 RODS, THENCE NORTH 11 RODS TO THE PLACE OF BEGINNING, ALL ON SECTION 36, IN TOWN 1 NORTH, RANGE ONE EAST, MICHIGAN.
(herein referred to as “Tract 1”). (EXHIBIT 1 – TRACT 1: 1946 WARRANTY DEED).
11. On September 13, 1955, non-parties Sedgwick V. Lawrence and Alzina B. Lawrence conveyed the following real property to Defendant Charles H. Webb and non-party Barbara L. Webb, as husband and wife and as tenants by the entirety, by way of a Warranty Deed recorded on September 14, 1955, in Liber 709, Page 57 of the Ingham County Records:
BEGINNING AT A POINT 11-2/3 RODS WEST OF THE NORTHWEST CORNER OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 36, TOWN 1 NORTH, RANGE 1 EAST, BUNKERHILL TOWNSHIP, INGHAM COUNTY, MICHIGAN, THENCE EAST 8 RODS, SOUTH 11 RODS, WEST 8 RODS, THENCE NORTH 11 RODS TO THE PLACE OF BEGINNING. SUBJECT TO THE RIGHTS OF THE PUBLIC TO THE NORTH 33 FEET, KNOWN AS FITCHBURG ROAD.
(herein referred to as “Tract 2”). (EXHIBIT 2 – TRACT 2: 1955 WARRANTY DEED).
12. On January 25, 1961, non-parties Sedgwick V. Lawrence and Alzina B. Lawrence conveyed the following real property, which is the subject of the instant Complaint, to Defendant Charles H. Webb and non-party Barbara L. Webb, as husband and wife and as tenants by the entirety, by way of a Warranty Deed recorded on January 28, 1955, in Liber 887, Page 860 of the Ingham County Records:
BEGINNING AT A POINT 3-2/3 RODS WEST AND 11 RODS SOUTH OF THE NORTHWEST CORNER OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 36, TOWN 1 NORTH, RANGE 1 EAST, BUNKERHILL TOWNSHIP, INGHAM COUNTY, MICHIGAN; THENCE SOUTH 3 RODS, THENCE WEST 13 RODS, THENCE NORTH 3 RODS, THENCE EAST 13 RODS TO THE PLACE OF BEGINNING.
(herein referred to as “Tract 3” or the “Subject Property”). (EXHIBIT 3 – TRACT 3: 1961 WARRANTY DEED).
13. Tract 1, Tract 2, and Tract 3 are all assessed property taxes as a single piece of property under Tax I.D. No. 33-15-15-36-102-006 and are commonly known under one address which is 2160 Fitchburg Road, Stockbridge, Michigan 49285. (EXHIBIT 4 – DETAILED TAX INFORMATION).
14. On May 17, 1976, Defendant Charles H. Webb and non-party Barbara L. Webb1, as husband and wife, conveyed Tracts 1 and 2 to non-parties Winfred Williams and Donna Williams by way of a Warranty Deed recorded on June 18, 1976, in Liber 1185, Page 998 of the Ingham County Records. (EXHIBIT 6 – TRACT 1 AND 2: 1976 WARRANTY DEED INTO WILLIAMS).
15. Upon information and belief, it was the intention of Defendant Charles H. Webb and non-party Barbara L. Webb to convey all of 2160 Fitchburg Road, Stockbridge, Michigan 49285, to include Tract 1, Tract 2, and Tract 3 to non-parties Winfred Williams and Donna Williams, however, there was a mistake in drafting the deed in that it left Tract 3 out of the legal description resulting in an illegal lot split and an incomplete, landlocked parcel in Tract 3.
16. On May 17, 1976, non-parties Winfred Williams and Donna Williams conveyed Tracts 1 and 2 to non-parties James C. Craft and Charlotte M. Craft by way of a Warranty Deed recorded on June 18, 1976, in Liber 1185, Page 1001 of the Ingham County Records. (EXHIBIT 7 – TRACT 1 AND 2: 1976 WARRANTY DEED INTO CRAFTS).
17. On June 29, 1984, non-parties James C. Craft and Charlotte M. Craft conveyed Tracts 1 and 2 to non-parties Ira Jack Smail and Cheryl A. Smail by way of a Warranty Deed recorded on July 13, 1984, in Liber 1475, Page 523 of the Ingham County Records. (EXHIBIT 8 – TRACT 1 AND 2: 1984 WARRANTY DEED).
18. On September 8, 1989, Tracts 1 and 2 were sold at a mortgage foreclosure sale and were conveyed to non-party Security Savings Bank by way of a Sheriff’s Deed on Mortgage Sale (“1989 Sheriff’s Deed”) recorded on September 19, 1989, in Liber 1776, Page 1183 of the Ingham County Records. (EXHIBIT 9 – TRACT 1 AND 2: 1989 SHERIFFS DEED).
19. Tracts 1 and 2 were redeemed from the 1989 mortgage foreclosure sale and the 1989 Sheriff’s Deed was declared void and to have no effect. (EXHIBIT 10 – TRACT 1 AND 2: CERTIFICATE OF REDEMPTION).
20. On December 18, 1989, non-parties Ira Jack Smail and Cheryl A. Smail conveyed Tracts 1 and 2 to non-parties Michael D. Adkins and Rhonda A. Adkins by way of a Warranty Deed recorded on December 28, 1989, in Liber 1795, Page 215 of the Ingham County Records. (EXHIBIT 11 – TRACT 1 AND 2: 1989 WARRANTY DEED).
21. On November 18, 1993, non-parties Michael D. Adkins and Rhonda A. Adkins conveyed Tracts 1 and 2 to non-parties Thomas Legasse and Linda M. Legasse by way of a Warranty Deed recorded on February 3, 1994, in Liber 2149, Page 62 of the Ingham County Records. (EXHIBIT 12 – TRACT 1 AND 2: 1994 WARRANTY DEED).
22. On September 2, 1997, non-parties Thomas Legasse and Linda M. Legasse conveyed Tracts 1 and 2 to non-parties Brian J. Medbury and Lynda Medbury by way of a Warranty Deed recorded on September 10, 1997, in Liber 2498, Page 960 of the Ingham County Records. (EXHIBIT 13 – TRACT 1 AND 2: 1997 WARRANTY DEED).
23. On Jun 8, 2000, all of Lynda Medbury’s interest in Tracts 1 and 2 was extinguished by way of a Judgment of Divorce recorded on August 7, 2000, in Liber 2861, Page 221 of the Ingham County Records. (EXHIBIT 14 – JUDGMENT OF DIVORCE).
24. On April 9, 2001, non-party Brian J. Medbury conveyed Tracts 1 and 2 to non-parties Brian J. Medbury and Sherry L. Burrows by way of a Quit Claim Deed recorded on May 29, 2001, in Liber 2899, Page 79 of the Ingham County Records. (EXHIBIT 15 – TRACT 1 AND 2: 2001 QUIT CLAIM DEED).
25. On September 30, 2004, non-parties Brian J. Medbury and Sherry L. Burrows granted a mortgage (“Mortgage”) over Tracts 1 and 2 in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for Quicken Loans Inc. as security for a certain loan (“Loan”) and the Mortgage was recorded on October 15, 2004, in Liber 3135, Page 5 of the Ingham County Records. (EXHIBIT 16 – MORTGAGE).
26. On October 5, 2004, non-party Sherry L. Burrows conveyed her interest in Tracts 1 and 2 to non-party Brian J. Medbury by way of a Quit Claim Deed recorded on November 16, 2004, in Liber 3139, Page 360 of the Ingham County Records. (EXHIBIT 17 – TRACT 1 AND 2: 2004 QUIT CLAIM DEED).
27. The Mortgage was subsequently assigned to Plaintiff via mesne assignments of mortgage, with the last of which being dated March 19, 2014, and recorded March 27, 2014, as Instrument Number 2014-012818 of the Ingham County Records. (EXHIBIT 18 – ASSIGNMENT OF MORTGAGE).
28. On February 15, 2016, non-parties Brian J. Medbury and Aimee Medbury conveyed the mortgaged property to Plaintiff by way of a Deed in Lieu of Foreclosure recorded on March 18, 2016, as Instrument Number 2016-009085. (EXHIBIT 19 – DEED IN LIEU OF FORECLOSURE).
29. As evidenced on the first page of the Mortgage, it was the intention of the parties to the Mortgage to encumber the real property assessed as Tax I.D. No. 33-15-15-36-102-006 and commonly known as 2160 Fitchburg, Bunkerhill Township, Michigan 49285 as security for the Loan. (EXHIBIT 16).
30. Because the May 17, 1976, Warranty Deed conveying 2160 Fitchburg from Defendant Charles H. Webb and non-party Barbara L. Webb to Winfred Williams and Donna Williams did not include the proper legal description that would have included Tract 3, only Tracts 1 and 2 were ultimately encumbered by Plaintiff’s Mortgage and conveyed to Plaintiff by the Deed in Lieu of Foreclosure. (EXHIBITS 6 THROUGH 19).
31. As a result of the excluded legal property description that should have included Tract 3 in the property that was intended to be encumbered by the Mortgage, there remains a section (Tract 3) of the real property assessed as Tax I.D. No. 33-15-15-36-102-006 and commonly known as 2160 Fitchburg, Bunkerhill Township, Michigan 49285 that Defendant Charles H. Webb or his Unknown Heirs, Devisees or Assignees may be claiming an interest in.
32. Therefore, Plaintiff brings the instant action to quiet title of Tract 3 into Plaintiff’s name and to extinguish any claim that Defendant Charles H. Webb or his Unknown Heirs, Devisees or Assignees may have in Tract 3.
33. Upon information and belief, Defendant Charles Webb became deceased on May 28, 1996.
34. Upon information and belief, there is no record of the distribution of Defendant Charles Webb’s interest in Tract 3.
35. Plaintiff has made diligent attempts to locate any and all heirs of Charles Webb and has identified no potential heirs.
36. Plaintiff has complied with the requirements of MCR 2.201(D). (EXHIBIT 20 – AFFIDAVIT OF UNKNOWN HEIRS).
37. Pursuant to MCR 2.01(D), Plaintiff is naming Defendant Charles Webb or His Unknown Heirs, Devisees, and Assigns as the proper party Defendant.
38. The statement of title upon which Plaintiff relies as to its interest in the Property is attached hereto pursuant to MCR 3.411(C)(2). (EXHIBIT 21 – TITLE COMMITMENT).
COUNT I - QUIET TITLE
39. Plaintiff hereby incorporates by reference each and every allegation contained within Paragraphs 1 through 38 of this Complaint.
40. A Michigan quiet title action is a statutory cause of action to determine interests in property of controversy.
41. MCL §600.2932(1) states:
“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.”
42. MCL §600.2932(3) states:
“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.”
43. Plaintiff’s claim of interest in the Property is that of a fee simple interest.
44. Defendant’s claim of interest in the Property is that of a fee simple interest that was, upon information and belief, intended to be transferred with Tract 1 and Tract 2 and has otherwise been abandoned by Defendant since 1976.
45. Plaintiff’s claim of interest in the Property is superior claims of Defendant.
46. Upon information and belief, the County has not and cannot split Tract 3 from Tract 1 and Tract 2 as doing so would cause Tract 3 to become landlocked.
47. Therefore, the legal description of Tract 3 should have been included in the legal description of the real property assessed as Tax I.D. No. 33-15-15-36-102-006 and commonly known as 2160 Fitchburg, Bunkerhill Township, Michigan 49285 but was somehow inadvertently left out of the May 17, 1976, Warranty Deed from Defendant Charles H. Webb and non-party Barbara L. Webb to non-parties Winfred Williams and Donna Williams [Exhibit 6] and consequently each subsequent transfer/encumbrance of the Property as seen in Exhibits 7-19.
WHEREFORE, Plaintiff, Nationstar Mortgage, LLC, hereby respectfully requests that this Honorable Court enter an Order declaring:
A. Defendant Charles H. Webb, or his unknown heirs, devisees, or assignees has no estate, right, title, or interest in the real property legal described as:
BEGINNING AT A POINT 3-2/3 RODS WEST AND 11 RODS SOUTH OF THE NORTHWEST CORNER OF THE NORTHEAST 1/4 OF THE NORTHWEST 1/4 OF SECTION 36, TOWN 1 NORTH, RANGE 1 EAST, BUNKERHILL TOWNSHIP, INGHAM COUNTY, MICHIGAN; THENCE SOUTH 3 RODS, THENCE WEST 13 RODS, THENCE NORTH 3 RODS, THENCE EAST 13 RODS TO THE PLACE OF BEGINNING;
(herein after referenced as “the Property”).
B. Defendant Charles H. Webb, or his unknown heirs, devisees, or assignees be forever enjoined from asserting any estate, right, title, or interest in the Property, adverse to Plaintiff’s herein;
C. Title to the Property is quieted in the name of Plaintiff, and Plaintiff is the record title holder of the Property and
D. Grant any other relief that is equitable and just.
Respectfully submitted,
POTESTIVO & ASSOCIATES, P.C.
Dated: July ______, 2016
By: David Marowske (P57261), Attorney for Plaintiff
251 Diversion Street
Rochester, Michigan 48307
Phone: (248) 853-4400
8-23,30, 9-6 hspaxlp
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