COA 373624 ASHLEY'S MANAGEMENT COMPANY LLC V TOORAK CAPITAL PARTNERS LLC Opinion - Per Curiam - Unpublished 9/21/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
ASHLEY’S MANAGEMENT COMPANY LLC,
Plaintiff-Appellant,
UNPUBLISHED
September 21, 2026
10:20 AM
v No. 373624
Wayne Circuit Court
TOORAK CAPITAL PARTNERS LLC and 2020-1
REALTY HOLDINGS III, LLC, and WAYNE
COUNTY SHERIFF,
LC No. 23-010860-CB
Defendants-Appellees,
and
WAYNE COUNTY TREASURER,
Defendant.
Before: BAZZI, P.J., and PATEL and ACKERMAN, JJ.
PER CURIAM.
In this property dispute arising from mortgage foreclosure proceedings, plaintiff challenges
the trial court’s denial of its motion for summary disposition under MCR 2.116(C)(9) and (C)(10),
grant of summary disposition to defendants Toorak Capital Partners LLC, 2020-1 Realty Holdings
III, LLC under MCR 2116(I)(2), and denial of plaintiff’s motion for reconsideration. We affirm.
I. BACKGROUND
Many of the facts in this case are undisputed. Plaintiff purchased the subject property for
$154,000 in October 2019. Plaintiff financed the purchase with a $201,900 loan from Patch of
Land Lending, LLC, and executed a mortgage for the same amount to Patch of Land to secure the
loan. Patch of Land assigned its mortgagee interest to Toorak. On December 27, 2022, Toorak
published a notice of foreclosure by advertisement regarding the subject property stating that
plaintiff was in default, owed $147,467.32 for the unpaid mortgage, and the property would be

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sold at public auction on January 26, 2023. The notice was published on three additional dates.
The notice was also posted “upon the premises” of the subject property.
On January 26, 2023, the Wayne County Sheriff (WCS) conducted a public auction of the
subject property. Toorak submitted the highest bid: $234,600. No other bids were submitted.
Toorak purchased the subject property using a credit bid to satisfy plaintiff’s debt.1 No money
was tendered to the WCS. A sheriff’s deed conveyed the subject property to Toorak, or its
“successors and assigns,” for $234,600. On January 31, 2023, Toorak executed a quitclaim deed
conveying the subject property to 2020-1 Realty for $1.
The sheriff’s deed was recorded on February 7, 2023, and included an “affidavit of
purchaser” executed by Toorak’s counsel. The affidavit indicated that the property could be
redeemed for $234,600.00 plus interest and any additional amounts authorized under MCL
600.3240. The affidavit identified Toorak’s counsel as the designated representative to contact for
an official written computation of the redemption amount and warned that a redemption made
without a current written computation from Toorak’s counsel would be subject to audit and
potentially rejected. The last day to redeem the property was July 26, 2023. Plaintiff did not
redeem the property.
After the redemption period expired, plaintiff commenced this action.2 Before discovery
ended, plaintiff moved for summary disposition against Toorak and 2020-1 Realty under MCR
2.116(C)(9) and (C)(10) asserting that Toorak breached the mortgage and promissory note by not
paying the bid amount to the WCS or refunding plaintiff the amount paid in excess of the amount
owed for the mortgage (i.e., the surplus funds). Plaintiff further argued that Toorak and 2020-1
Realty unlawfully converted the surplus funds. Alternatively, plaintiff contended that the sheriff’s
deed was voidable and the statutory redemption period had not begun because Toorak did not pay
the full purchase price. In response, Toorak and 2020-1 Realty maintained that they were entitled
to summary disposition under MCR 2.116(I)(2) because Toorak purchased the subject property
using a credit bid to satisfy plaintiff’s debt and therefore plaintiff was not entitled to any surplus
funds.
The WCS also moved for summary disposition under MCR 2.116(C)(8) and (C)(10)
arguing that plaintiff was not entitled to any surplus funds from the foreclosure sale because such
funds never existed and were not received by the WCS. In response, plaintiff argued the WCS
was liable for statutory conversion for retaining the surplus funds.
The trial court denied plaintiff’s motion for summary disposition and granted summary
disposition to Toorak and 2020-1 Realty under MCR 2.116(I)(2). First, the trial court concluded
that Toorak and 2020-1 Realty sufficiently pleaded their defenses to overcome summary
disposition under MCR 2.116(C)(9). The trial court found that the foreclosure by advertisement
1 “A credit bid occurs when a secured creditor uses their claim against a debtor to bid on the
debtor’s collateral in an auction.” K2 Retail Constr Services, Inc v West Lansing Retail Dev, Inc,
__ Mich App __, __; __ NW3d __ (2026) (Docket No. 367762); slip op at 16.
2 Plaintiff named the Wayne County Treasurer in its complaint but later stipulated to its dismissal.

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was proper, the relevant statutory requirements were satisfied, the overbid was a mistake, plaintiff
could not show that it was prejudiced by the overbid, plaintiff could not demonstrate malice by
Toorak’s erroneous credit bid, and no surplus funds existed. On the basis of these findings, the
trial court concluded that plaintiff’s claims against Toorak and 2020-1 Realty failed as a matter of
law. Although the trial court did not expressly decide the WCS’s motion for summary disposition,
it dismissed all parties and claims with prejudice. Plaintiff moved for reconsideration, which the
court denied. Plaintiff now appeals.
II. STANDARDS OF REVIEW
“We review de novo a trial court’s decision on a motion for summary disposition.” El-
Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). The trial court
denied plaintiff’s motion for summary disposition under MCR 2.116(C)(9) and (C)(10) and
granted summary disposition to Toorak and 2020-1 Realty under MCR 2.116(I)(2). The trial court
impliedly granted the WCS’s motion for summary disposition under MCR 2.116(C)(8) and (C)(10)
by entering the order of dismissal. Because the trial court considered documentary evidence
outside of the pleadings, MCR 2.116(C)(10) is the appropriate basis for review. Silberstein v Pro-
Golf of America, Inc, 278 Mich App 446, 457; 750 NW2d 615 (2008).
Summary disposition under MCR 2.116(C)(10) is warranted when, “[e]xcept as to the
amount of damages, there is no genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law.” MCR 2.116(C)(10). “A genuine
issue of material fact exists when the record leaves open an issue upon which reasonable minds
might differ.” El-Khalil, 504 Mich at 160 (cleaned up). When reviewing a motion for summary
disposition under MCR 2.116(C)(10), a court must consider the evidence submitted by the parties
in the light most favorable to the nonmoving party. Id. Summary disposition should be granted
when, after reviewing the evidence in the light most favorable to the nonmoving party, there are
no remaining issues of material fact and the moving party is entitled to judgment as a matter of
law. Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5; 890 NW2d 344 (2016). But “[i]f it appears to
the court that the opposing party, rather than the moving party, is entitled to judgment, the court
may render judgment in favor of the opposing party.” MCR 2.116(I)(2); see also Holland v
Consumers Energy Co, 308 Mich App 675, 681–682; 866 NW2d 871 (2015) (“Summary
disposition may be granted in favor of an opposing party under MCR 2.116(I)(2) if there is no
genuine issue of material fact and the opposing party is entitled to judgment as a matter of law.”).
“The existence and interpretation of a contract are questions of law reviewed de novo.”
Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006). “Statutory
interpretation is a question of law, which this Court also reviews de novo.” O’Neal v St John Hosp
& Med Ctr, 487 Mich 485, 493; 791 NW2d 853 (2010). And “whether equitable relief is proper . . .
is a question of law that an appellate court reviews de novo.” McDonald v Farm Bureau Ins Co,
480 Mich 191, 197; 747 NW2d 811 (2008).
III. ANALYSIS
Plaintiff contends that the trial court erred by denying it summary disposition and instead
granting summary disposition to defendants. We disagree.

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On appeal, plaintiff does not dispute that it defaulted on the mortgage and thus Toorak had
a right to pursue a foreclosure by advertisement under MCL 600.3201, et seq. Plaintiff also does
not challenge the fact that all requirements under the foreclosure by advertisement statute, MCL
600.3204,3 were met and there was substantial compliance with the foreclosure by advertisement
process regarding notice and the conduct of the public auction.4 Nor does plaintiff contest that
Toorak was entitled to purchase the foreclosed property at the sheriff’s sale. See MCL 600.3228
(“The mortgagee . . . may . . . purchase the premises . . . at such sale.”). Rather, plaintiff argues
that Toorak was bound by its bid and required to pay the full amount of its bid, and plaintiff was
entitled to the surplus under MCL 600.3252. Alternatively, plaintiff contends that there was no
consideration for the foreclosure sale and it must be set aside because Toorak did not pay the full
bid amount.
3 MCL 600.3204, which governs the requirements for a foreclosure by advertisement, states in
relevant part:
(1) A party may foreclose a mortgage by advertisement if all of the
following circumstances exist:
(a) A default in a condition of the mortgage has occurred, by which the
power to sell became operative.
(b) An action or proceeding has not been instituted, at law, to recover the
debt secured by the mortgage or any part of the mortgage or, if an action or
proceeding has been instituted, either the action or proceeding has been
discontinued or an execution on a judgment rendered in the action or proceeding
has been returned unsatisfied, in whole or in part. . . .
* * *
(c) The mortgage containing the power of sale has been properly recorded.
(d) The 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.
4 MCL 600.3208 governs a notice of a foreclosure, requiring that notice of a mortgage foreclosure
sale “shall be given by publishing the same for 4 successive weeks at least once in each week, in
a newspaper published in the county where the premises . . . are situated,” and “within 15 days
after the first publication of the notice, a true copy shall be posted in a conspicuous place upon any
part of the premises described in the notice.” MCL 600.3208. MCL 600.3212(1) governs the
contents of a notice of foreclosure by advertisement. Under MCL 600.3216, the sale shall be held
in public and “shall be made by the person appointed for that purpose in the mortgage, or by the
sheriff, undersheriff, or a deputy sheriff of the county, to the highest bidder.” “The mortgagee . . .
may, fairly and in good faith, purchase the premises so advertised, or any part thereof, at such
sale.” MCL 600.3228.

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A mortgage is “[a] conveyance of an interest in real estate to secure the performance of an
obligation, typically a debt. The very purpose of mortgage foreclosure is to ensure that the
mortgagor’s debt, secured by a mortgage to a mortgagee, is satisfied.” In re $55,336.17 Surplus
Funds, 319 Mich App 501, 508; 902 NW2d 422 (2017) (cleaned up). Our Supreme Court has
explained:
A mortgagee that elects to foreclose by advertisement may bid on the
property at the sale, and a mortgagee who does so stands in the position of an
ordinary purchaser. However, unlike a third-party purchaser, a mortgagee is not
required to make a cash bid. Instead, a mortgagee can make a bid on credit because
any cash it tenders would be returned to it, and thus actual payment to the sheriff
would be an idle gesture. [Bank of America, NA v First American Title Ins Co, 499
Mich 74, 88; 878 NW2d 816 (2016) (cleaned up).]
If a mortgagee makes a bid “in an amount equal to the unpaid principal and interest of the mortgage
debt, together with costs, fees, and other expenses of the foreclosure[,]” this is referred to as a full
credit bid. Id. (cleaned up). The full credit bid rule “bars a mortgagee who takes title at a
nonjudicial foreclosure sale following a full credit bid from pursuing a deficiency judgment against
the mortgagor.” Id. at 89. If a “mortgagor fails to redeem the property within the statutory
redemption period, all right, title, and interest in the property vest in the holder of the sheriff’s
deed.” Fed Home Loan Mtg Corp v Werme, 335 Mich App 461, 473-474; 966 NW2d 729 (2021).
“[I]f a mortgagor fails to avail him or herself of the right of redemption, all the mortgagor’s rights
in and to the property are extinguished, and the mortgagor does not have standing to bring any
claim related to the property absent clear proof of fraud or irregularity.” Id. at 474 (cleaned up).
In this case, it is undisputed that Toorak’s credit bid exceeded the amount due under the
mortgage and no money was paid to the WCS. Plaintiff argued to the trial court that Toorak was
bound by its bid and that plaintiff was entitled to the surplus created by the overbid. Toorak
claimed that the overbid was a mistake and there was no surplus because no money ever changed
hands. The trial court agreed.
MCL 600.3252 governs the distribution of surplus funds after a mortgage foreclosure by
advertisement:
If after any sale of real estate, made as herein prescribed, there shall remain
in the hands of the officer or other person making the sale, any surplus money after
satisfying the mortgage on which the real estate was sold, and payment of the costs
and expenses of the foreclosure and sale, the surplus shall be paid over by the officer
or other person on demand, to the mortgagor, his legal representatives or assigns,
unless at the time of the sale, or before the surplus shall be so paid over, some
claimant or claimants, shall file with the person so making the sale, a claim or
claims, in writing, duly verified by the oath of the claimant, his agent, or attorney,
that the claimant has a subsequent mortgage or lien encumbering the real estate, or
some part thereof, and stating the amount thereof unpaid, setting forth the facts and
nature of the same, in which case the person so making the sale, shall forthwith
upon receiving the claim, pay the surplus to, and file the written claim with the
clerk of the circuit court of the county in which the sale is so made; and thereupon

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any person or persons interested in the surplus, may apply to the court for an order
to take proofs of the facts and circumstances contained in the claim or claims so
filed. Thereafter, the court shall summon the claimant or claimants, party, or parties
interested in the surplus, to appear before him at a time and place to be by him
named, and attend the taking of the proof, and the claimant or claimants or party
interested who shall appear may examine witnesses and produce such proof as they
or either of them may see fit, and the court shall thereupon make an order in the
premises directing the disposition of the surplus moneys or payment thereof in
accordance with the rights of the claimant or claimants or persons interested.
[Emphasis added.]
Resolution of this issue requires us to interpret this statute. “The principal goal of statutory
interpretation is to give effect to the Legislature’s intent, and the most reliable evidence of that
intent is the plain language of the statute.” South Dearborn Environmental Improvement Ass’n,
Inc v Dep’t of Environmental Quality, 502 Mich 349, 360-361; 917 NW2d 603 (2018). “We
accord to every word or phrase of a statute its plain and ordinary meaning, unless a term has a
special, technical meaning or is defined in the statute.” Guardian Environmental Servs, Inc v
Bureau of Const Codes and Fire Safety, 279 Mich App 1, 6; 755 NW2d 556 (2008). “Where the
statutory language is unambiguous, the plain meaning reflects the Legislature’s intent and the
statute must be applied as written.” Honigman Miller Schwartz & Cohn LLP v City of Detroit,
505 Mich 284, 294; 952 NW2d 358 (2020) (cleaned up). We must assign each word and phrase
“such meanings as are in harmony with the whole of the statute, construed in light of history and
common sense.” Id. at 295. If a statutory term is undefined, it “must be accorded its plain and
ordinary meaning.” Brackett v Focus Hope, Inc, 482 Mich 269, 276; 753 NW2d 207 (2008), citing
MCL 8.3a.
The purpose of MCL 600.3252 is to protect the rights of others after the mortgagee has
recovered its debt. $55,336.17 Surplus Funds, 319 Mich App at 510-511. Because there are no
claims by subsequent lienholders in this case, there is no dispute that any surplus proceeds, if they
exist, would belong to plaintiff. The term “surplus” is not defined in MCL 600.3252. However,
the statute provides that a mortgagor is entitled to be paid, on demand, any money remaining “in
the hands of the officer or other person making the sale” after the outstanding debt and the costs
and expenses of the foreclosure are satisfied. The plain meaning of the phrase “in the hands of” is
in the possession of. Toorak’s credit bid was the only bid on the property. It is undisputed that
the credit bid satisfied the outstanding debt and the costs and expenses of the foreclosure and no
money changed hands. Under these facts and circumstances, “actual payment to the sheriff would
be an idle gesture.” Bank of America, 499 Mich at 88. After the debt was satisfied, no surplus
funds were held by the WCS. Accordingly, no surplus was owed to plaintiff.5 And because no
5 To the extent that plaintiff relies on caselaw that predates the January 1, 1963 effective date of
MCL 600.3252, we do not find any of those cases persuasive.

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surplus funds existed, the trial court did not err by concluding that defendants were not liable for
conversion.6
Alternatively, plaintiff asserts that the trial court erred by failing to set aside the sheriff’s
deed. “[A] mortgagor seeking to set aside a foreclosure by advertisement must allege facts to
support three essential elements . . . (1) fraud or irregularity in the foreclosure procedure, (2)
prejudice to the mortgagor, and (3) a causal relationship between the alleged fraud or irregularity
and the alleged prejudice.” Diem v Sallie Mae Home Loans, Inc, 307 Mich App 204, 210-211;
859 NW2d 238 (2014). A plaintiff “must show that they were prejudiced by defendant’s failure
to comply with MCL 600.3204” and “[t]o demonstrate such prejudice, they must show that they
would have been in a better position to preserve their interest in the property absent defendant’s
noncompliance with the statute.” Id. at 210 (cleaned up). Regardless of plaintiff’s unsupported
claim of irregularity in the subject sale because of the mistaken bid amount, plaintiff failed to
present any evidence that it suffered actual prejudice. Plaintiff contends that Toorak “fraudulently
outbid” other potential bidders who may have offered an amount higher than the debt but lower
than the bid. As the moving party, plaintiff bore the initial burden to identify the issues about
which there is no genuine issue of material fact with supporting evidence. Barnard Mfg Co, Inc v
Gates Performance Engineering, Inc, 285 Mich App 362, 369-370; 775 NW2d 618 (2009).
Absent any evidence that there were other persons intending to bid on the property, this is nothing
more than speculation. Plaintiff also erroneously claims that it “effectively lost its right of
6 Conversion under common law includes “any distinct act of dominion wrongfully exerted over
another’s personal property in denial of or inconsistent with his rights therein.” Aroma Wines &
Equip, Inc v Columbian Distribution Servs, Inc, 497 Mich 337, 346; 871 NW2d 136 (2015)
(cleaned up). “To support an action for conversion of money, the defendant must have an
obligation to return the specific money entrusted to his care. The defendant must have obtained
the money without the owner’s consent to the creation of a debtor and creditor relationship.” Head
v Phillips Camper Sales & Rental, Inc, 234 Mich App 94, 111-112; 593 NW2d 595 (1999) (cleaned
up). In addition, MCL 600.2919a(1) states:
(1) A person damaged as a result of either or both of the following may recover 3
times the amount of actual damages sustained, plus costs and reasonable attorney
fees:
(a) Another person’s stealing or embezzling property or converting property
to the other person’s own use.
(b) Another person’s buying, receiving, possessing, concealing, or aiding in
the concealment of stolen, embezzled, or converted property when the person
buying, receiving, possessing, concealing, or aiding in the concealment of stolen,
embezzled, or converted property knew that the property was stolen, embezzled, or
converted.
In addition to proving the common-law elements, to prove statutory conversion, a party must prove
“that the conversion was to the other person’s own use.” Aroma Wines & Equip, Inc, 497 Mich
at 357 (cleaned up).

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redemption” because Toorak’s overbid inflated plaintiff’s redemption amount. Contrary to
plaintiff’s unsupported assertion, if it had redeemed the property, it would have been required to
remit the amount of indebtedness on the mortgage, not the overbid amount. The affidavit of
purchaser identified Toorak’s counsel as the designated representative to contact for an official
written computation of the redemption amount and warned that a redemption made without a
current written computation from Toorak’s counsel would be subject to audit and potentially
rejected. Plaintiff failed to produce any evidence that it attempted to redeem the property and was
otherwise prejudiced. Accordingly, the trial court did not err by declining to set aside the sheriff’s
deed.
Plaintiff also broadly challenges the order denying reconsideration. Because plaintiff did
not include this issue in the statement of questions presented, it is deemed waived. See Seifeddine
v Jaber, 327 Mich App 514, 521; 934 NW2d 64 (2019); see also MCR 7.212(C)(5) (stating that
an appellant’s brief must contain “[a] statement of questions involved, stating concisely and
without repetition the questions involved in the appeal.”).
Affirmed.
/s/ Mariam S. Bazzi
/s/ Sima G. Patel
/s/ Matthew S. Ackerman

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