COA 374645 VICTORIA L SHEFFIELD V COUNTY OF CHIPPEWA Opinion - Per Curiam - Unpublished 7/28/2026

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
VICTORIA L. SHEFFIELD,
Plaintiff-Appellant,
UNPUBLISHED
July 28, 2026
11:21 AM
and No. 374645
Chippewa Circuit Court
AUBREY MCDONALD, MARY L. HALSTED, and
TERRY W. STRAUSER,
LC No. 20-016268-CZ
Plaintiffs,
v
CHIPPEWA COUNTY and CHIPPEWA COUNTY
TREASURER,
Defendants-Appellees.
Before: REDFORD, P.J., and WALLACE and LIEVENSE, JJ.
PER CURIAM.
This is another case related to tax-foreclosure sales of property by local units of
government addressing the question of what happens with excess proceeds that result from these
sales.
Defendant, Chippewa County (the County), based on plaintiffs’ property tax delinquencies
and acting as the foreclosing governmental unit (FGU) through its treasurer, foreclosed on the
McDonald, Sheffield, and Halstead/Strauser properties in 2016, 2017, and 2018, respectively.1 At
1 “An FGU may be either the treasurer of the county in which the property is located or, if the
county treasurer has elected to have the state foreclose on the property, the state itself.” Jackson
v Southfield Neighborhood Revitalization Initiative, ___ Mich ___, ___; ___ NW3d ___ (2025)
(Docket No. 166320); slip op at 4 n 2, citing MCL 211.78(8)(a). In this case, plaintiffs alleged
“[t]he County and the Treasurer chose to be [an FGU].”

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the time, Michigan’s General Property Tax Act (GPTA), MCL 211.1 et seq., authorized the FGU
to retain proceeds from the sales in excess of what was owed in taxes, interests, penalties, and fees.
On July 17, 2020, our Supreme Court in Rafaeli v Oakland Co, 505 Mich 429; 952 NW2d
434 (2020), held that government retention of surplus proceeds under the GPTA exceeding the tax
liability owed, as well as interest, penalties, and fees incurred to collect those taxes, violates the
Takings Clause of Michigan’s 1963 Constitution. Const 1963, art 10, § 2.
On December 22, 2020, in response to Rafaeli, our Legislature passed 2020 Public Act 255
and 2020 Public Act 256 to amend the GPTA to address these issues, and these amendments were
codified in MCL 211.78t with immediate effect. “MCL 211.78t provides the exclusive state law
mechanism for persons with claims like plaintiffs present here to recover surplus proceeds.”
Armour v Kalamazoo Co, ___ Mich App ___, ___; ___ NW3d ____ (2026) (Docket No. 375423);
slip op at 2, citing MCL 211.78t(11) and Hathon v State of Michigan, ___ Mich ___, ___; 17
NW3d 686, 686-687 (2025).
Several years later, on July 29, 2024, in Schafer v Kent Co, 515 Mich 1, 29-41, 45-46; 29
NW3d 25 (2024), our Supreme Court determined that Rafaeli and MCL 211.78t each apply
retroactively to tax foreclosure sales occurring by that date of decision and effective date of
enactment.
On January 4, 2021, plaintiffs filed a class-action complaint on behalf of themselves and
“a class of similarly situated individuals and entities,” and then filed an amended complaint on
February 22, 2021, asserting state tort and state and federal constitutional claims seeking “unpaid
‘just compensation’ and other monetary damages,” including surplus proceeds from the tax-
foreclosure sales of their formerly-owned properties, as well as related attorney fees, costs, and
interest.
Plaintiffs appeal as of right from the trial court’s order granting summary disposition of
their state tort and state and federal constitutional claims with prejudice pursuant to MCR
2.116(C)(8) (failure to state a claim upon which relief can be granted) based upon the just-
discussed changes in the law occurring subsequent to the tax foreclosure sales of their properties
and plaintiffs failing to first follow the mechanism of MCL 211.78t before bringing their separate
claims.
We find that the trial court’s dismissal with prejudice was in error and that its grant of
summary disposition pursuant to MCR 2.116(C)(8) should have been made without prejudice to
plaintiffs bringing their state tort and state and federal constitutional claims after they have
completed the process of recovering their surplus proceeds pursuant to MCL 211.78t. The sole

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remaining plaintiff2 having now completed proceedings to recover surplus proceeds pursuant to
MCL 211.78t,3 we find that she may now avail herself of any procedural mechanisms available to
pursue her remaining claims, which she contends include claims to recover interest, costs,
attorneys fees, and 5% sales commission taken from the proceeds of the foreclosure sale.4 As in
Armour, “[b]ecause we agree with the trial court that dismissal [without prejudice] was appropriate
for failure to first follow the procedures of MCL 211.78t, we need not address the merits of
plaintiff[’s] constitutional and other claims or potential damages” and “[w]e take no position as to
the validity of any such constitutional or other claim that plaintiffs may raise in the context of the
proceedings commenced under MCL 211.78t.” Armour, ___ Mich App at ___, ___; slip op at 2,
5. We accordingly affirm the trial court’s order granting summary disposition pursuant to MCR
2.116(C)(8), but reverse that ruling to the extent it was made with prejudice, and remand to the
trial court for entry of an order of dismissal without prejudice.
I. FACTUAL AND PROCEDURAL BACKGROUND
In light of this being an appeal from a grant of summary disposition pursuant to MCR
2.116(C)(8), the underlying facts are not in dispute and are taken as alleged in plaintiffs’ amended
complaint.
Plaintiff Victoria L. Sheffield owned property located in Sault Ste. Marie. Plaintiff Aubrey
McDonald is the personal representative of the estate of Eva McDonald, who owned property
located in Paradise.5 Plaintiffs Mary L. Halsted and Terry W. Strauser owned property located in
Kincheloe. These respective property owners became delinquent in their property taxes and, in
accordance with the GPTA, the County, acting as the FGU through its treasurer, foreclosed on the
McDonald, Sheffield, and Halstead/Strauser properties in 2016, 2017, and 2018, respectively. At
2 Following the filing of the parties’ briefing in this appeal, plaintiffs Aubrey McDonald and Mary
L. Halstead were each dismissed as parties by stipulation. Sheffield v Chippewa Co, unpublished
order of the Court of Appeals, entered February 24, 2026 (Docket No. 374645); Sheffield v
Chippewa Co, unpublished order of the Court of Appeals, entered May 11, 2016 (Docket No.
374645). Further, plaintiff Terry W. Strauser was dismissed without prejudice upon the parties
stipulating that he is deceased. Sheffield v Chippewa Co, unpublished order of the Court of
Appeals, entered May 28, 2016 (Docket No. 374645). Accordingly, plaintiff Victoria L. Sheffield
is the sole remaining appellant in this appeal.
3 As confirmed by her counsel during oral argument on June 2, 2026.
4 Including potentially moving to file a counterclaim to pursue such claims in the foreclosure case,
which would relate back to the date of the original filing. MCR 2.203(E); MCR 2.118(D).
5 The amended complaint asserts that “[p]laintiff Aubrey McDonald was the owner.” However,
information presented in this appeal indicates that Eva McDonald actually owned the property at
the time of foreclosure. Eva died on June 9, 2018, after which plaintiff Aubrey McDonald was
appointed personal representative of her estate.

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the time of foreclosures, the fair-market value of each property exceeded the attendant tax
delinquency.6
Defendants sold plaintiffs’ foreclosed properties at public auction, with each of the sales
generating proceeds in excess of the tax delinquency. Defendants retained the proceeds from the
tax-foreclosure sales and eventually deposited them in the county’s general fund, consistent with
the then-applicable provisions of the GPTA that permitted FGUs to retain surplus proceeds.
“This portion of the GPTA was declared a violation of the Takings Clause of the Michigan
Constitution, Const 1963, art 10, § 2 in Rafaeli, 505 Mich 429.” Armour, ___ Mich App at ___;
slip op at 3.
On December 22, 2020, in response to Rafaeli, the Legislature enacted 2020 PA 255 and
2020 PA 256, with immediate effect, “thereby providing a process for plaintiffs to recover surplus
proceeds as defined in the statute.” Armour, ___ Mich App at ___; slip op at 3, citing MCL
211.78t. These acts were “intended 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] as recognized by the
Michigan supreme court in Rafaeli . . . .” 2020 PA 256, enacting § 3. Relevant here, 2020 PA 256
added MCL 211.78t, which “established a process for the administration of claims against
[FGUs].” Schafer v Kent Co, 515 Mich 1, 12; 29 NW3d 25 (2024). That is, MCL 211.78t provides
“a statutory framework by which a former owner of real property could claim the surplus proceeds
that remained, if any, after a foreclosing government sold the property and satisfied that owner’s
tax debt and related fees.” In re Petition of Muskegon Co Treasurer for Foreclosure, 348 Mich
App 678, 683; 20 NW3d 337 (2023).
In part pertinent to this appeal, MCL 211.78t provides:
(1) A claimant may submit a notice of intention to claim an interest in any
applicable remaining proceeds from the transfer or sale of foreclosed property
under section 78m, subject to the following:
* * *
(b) For foreclosed property transferred or sold under section 78m before
July 18, 2020, both of the following:
(i) A claim may be made only if the Michigan supreme court orders that its
decision in Rafaeli, LLC v Oakland County, docket no. 156849, applies
retroactively.
6 Plaintiffs reasoned that the fair-market value of their foreclosed properties was at least two times
the State Equalized Value.

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(ii) Subject to paragraph (i) the notice of intention must be submitted
pursuant to subsection (6).
* * *
(6) For a claimant seeking remaining proceeds[7] from the transfer or sale of
a foreclosed property transferred or sold under section 78m pursuant to this
subsection, the claimant must notify the foreclosing governmental unit using the
form prescribed by the department of treasury under subsection (2) in the manner
prescribed under subsection (2) by the March 31 at least 180 days after any
qualified order. By the following July 1, the foreclosing governmental unit shall
provide each claimant seeking remaining proceeds for the property and notifying
the foreclosing governmental unit under this subsection with a notice relating to the
foreclosed property in the form and manner provided under subsection (3). To
claim any applicable remaining proceeds to which the claimant is entitled, the
claimant must file a motion with the circuit court in the same proceeding in which
a judgement of foreclosure was effective under section 78k by the following
October 1. The motion must be certified and include [certain listed information].
* * *
(11) This section is the exclusive mechanism for a claimant to claim and
receive any applicable remaining proceeds under the laws of this state . . . .
On January 4, 2021, plaintiffs filed a class-action complaint on behalf of themselves and
“a class of similarly situated individuals and entities,” and then filed an amended complaint on
February 22, 2021, asserting claims for common law and statutory conversion, unjust enrichment,
and defendants’ violations of Article 10, § 2 of the Michigan Constitution and the Fifth, Eighth,
and Fourteenth Amendments of the United States Constitution, and seeking “unpaid ‘just
7 MCL 211.78t(12)(b) defines “remaining proceeds” as
the amount equal to the difference between the amount paid to the foreclosing
governmental unit for a property due to the sale or transfer of the property under
78m and the sum of all of the following:
(i) The minimum bid under section 78m.
(ii) All other fees and expenses incurred by the foreclosing governmental
unit pursuant to section 78m in connection with the forfeiture, foreclosure, sale,
maintenance, repair, and remediation of the property not included in the minimum
bid.
(iii) A sale commission payable to the foreclosing governmental unit equal
to 5% of the amount paid to the foreclosing governmental unit for the property.
The “minimum bid” is the minimum amount for which the FGU may sell the property in a tax-
foreclosure sale, and “must include all of the delinquent taxes, interest, penalties, and fees due on
the property . . . .” MCL 211.78m(16)(c).

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compensation’ and other monetary damages,” including surplus proceeds from the tax-foreclosure
sales of their formerly-owned properties as well as related attorney fees, costs, and interest.
In lieu of filing an answer to plaintiffs’ amended complaint, on March 15, 2021, defendants
filed a motion for summary disposition pursuant to MCR 2.116(C)(6) (prior pending action),
(C)(7) (governmental immunity), and (C)(8). That motion contended that plaintiffs and the
putative class were required to “seek redress in accordance with the statutory procedures that now
exist, particularly MCL 211.78t, before resorting to litigation”; plaintiffs’ claims are already
asserted as members of putative classes already litigating the same claims in Michigan and federal
courts; the claims lacked substantive merit; and defendants were entitled to governmental or
qualified immunity with respect to certain claims. The parties then stipulated to a stay of
proceedings to await “an issued decision on federal class certification” in pending parallel federal
cases (which stay entered May 3, 2021). While the case remained stayed for more than three years,
Michigan’s appellate courts issued caselaw addressing the applicability and constitutionality of
MCL 211.78t.
Of especial note, on October 26, 2023, in Muskegon Co Treasurer, which involved tax-
foreclosure sales of properties that occurred after Rafaeli was decided and after the Legislature
enacted MCL 211.78t (post-Rafaeli), this Court found that, by its plain language, the Legislature
intended MCL 211.78t as the exclusive mechanism for property owners to recover their surplus
proceeds. Muskegon Co Treasurer, 348 Mich App at 688. See also MCL 211.78t(11). This
panel’s recent, published Armour decision concisely further summarizes Muskegon Co Treasurer,
noting that it
explained that “[t]he 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 recover proceeds remaining after the sale or transfer of their foreclosed
properties and the satisfaction of their tax debt and related costs.” [Muskegon Co
Treasurer, 348 Mich App] at 691. The procedures of MCL 211.78t “impose[] a
reasonable, minimal burden on former owners to advise the FGU of their intent to
exercise” their “constitutionally-protected right to proceeds remaining after the
satisfaction of their tax debt and associated costs . . . .” Id. at 694-695. The
statutory scheme comports with the requirements of due process, informing former
property owners of their rights, instructing them as to how to express their intent to
exercise such rights, and mandating that the FGU provide them surplus proceeds in
accordance with MCL 211.78t. Id. at 697. This statutory scheme adequately
protects citizens’ constitutionally protected rights under the Takings Clause of
either the federal or state constitution; and plaintiffs’ failure to avail themselves of
it constituted a forfeiture of such rights. Id. at 701-704. [Armour, ___ Mich App
at ___; slip op at 8 (first and third alterations in original).]
Next, although the plaintiffs’ tax-delinquency foreclosure sales in this case occurred before
Rafaeli was decided (pre-Rafaeli), the Michigan Supreme Court’s subsequent July 29, 2024
decision in the consolidated cases of Schafer v Kent Co and Hathon v Michigan, made clear that
the foregoing analysis from Muskegon Co Treasurer applies equally to pre-Rafaeli cases. As
succinctly summarized in Armour (which is likewise pre-Rafaeli), Schafer held

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first, that Rafaeli’s holding applied retroactively, and also that the “detailed process
for administration of claims filed for surplus proceeds” codified in MCL 211.78t
applied retroactively as well. [Schafer, 515 Mich] at 43-45. In the words of our
Supreme Court, “MCL 211.78t creates a controlling and structured system for
adjudication of tax-foreclosure disputes as the exclusive means of obtaining surplus
proceeds.” Id. at 45. Moreover, the “statute asserts unambiguously that claims
regarding sales occurring prior to Rafaeli ‘must’ comply with the statute, including
certain notice requirements and procedures if Rafaeli is ever applied retroactively.”
Id. at 46. To facilitate retroactive application, the Supreme Court delineated a
statute of limitations for claimants whose claims were “cut short by the retroactive
application of 2020 PA 256” in that such claims “will not be barred from relief
under statutes of limitations if their claims are filed within the time they had
remaining under applicable statutes of limitations on December 22, 2020, the time
2020 PA 256 became law, and running from the date of this opinion.” Id. at 49-50.
[Armour, ___ Mich App at ___; slip op at 8.]
As was the case in Armour, “[t]here is no evidence in the record that any plaintiff was
prevented from filing a notice of intention outside of this statutory limitations period.” Id.
Defendants then filed renewed motions for summary disposition of plaintiffs’ state and
federal claims pursuant to pursuant to MCR 2.116(C)(7) and MCR 2.116(C)(8) on October 23,
2024. As in Armour, “[t]he primary question here is whether plaintiffs were required to first follow
the procedures in MCL 211.78t to recover their surplus proceeds before pursuing other relief.”
Armour, ___ Mich App at ___; slip op at 3.
At the January 27, 2025 hearing on the renewed motions, plaintiffs additionally argued that
MCL 211.78t did not offer a mechanism for the complete relief to which they were entitled because
MCL 211.78t(9) requires the FGU to withhold 5% of the proceeds as a sales commission, and did
not provide for interest from the time of the foreclosure to the payment of the proceeds. The trial
court stated on the record that it was granting the renewed motions based upon Muskegon Co
Treasurer’s holding that MCL 211.78t is the exclusive mechanism for property owners to recover
their surplus proceeds from the tax foreclosure sale of property and Schafer’s subsequent holding
that Rafaeli’s holding and MCL 211.78t apply retroactively, and that Muskegon Co Treasurer
applies equally to pre-Rafaeli cases such as the present case. The trial court subsequently entered
a February 7, 2025 order granting defendants’ renewed motions for summary disposition of
plaintiffs’ state and federal claims in full “for the reasons stated on the record,” and dismissing
those claims with prejudice. Plaintiffs filed a timely claim of appeal.
On March 28, 2025, each plaintiff, through counsel, filed a timely notice of intention to
claim their interest in the surplus proceeds from the tax-foreclosure sales of their formerly owned

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property with defendants as required under MCL 211.78t(6).8,9 On August 12, 2025, each plaintiff,
through counsel, filed timely motions in Chippewa County Circuit Court, the court that effectuated
their foreclosure judgments, requesting disbursement of their remaining proceeds, as required
under MCL 211.78t(6).10 Each plaintiff also requested interest on the surplus proceeds from the
date of the filing of the foreclosure action to the date of the payment of the surplus.
The record before this Court does not indicate whether plaintiffs’ motions to disburse have
been acted upon. However, a search of the Chippewa County Circuit Court online register of
actions with regard to the last remaining plaintiff Victoria A. Sheffield’s motion reveals that it was
granted on April 29, 2026 and remaining proceeds were disbursed on May 15, 2026.11
Furthermore, at the June 2, 2026 oral argument, counsel for the sole remaining plaintiff confirmed
that her proceedings to recover surplus proceeds pursuant to MCL 211.78t were completed, and
that she was not provided related attorney fees, costs, interest, or the 5% sales commission from
the proceeds as part of that recovery.
II. STANDARD OF REVIEW
A trial court’s decision on a motion for summary disposition is reviewed de novo.
A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim based on
the factual allegations in the complaint. All well-pleaded factual allegations are
accepted as true and construed in a light most favorable to the nonmovant.
[Schafer, 515 Mich at 19-20 (quotation marks and citations omitted).]
“Summary disposition on the basis of subrule (C)(8) should be granted only when the claim is so
clearly unenforceable as a matter of law that no factual development could possibly justify a right
8 While plaintiffs’ notices of intent to claim their remaining proceeds and motions to disburse are
not included in the lower-court record, plaintiffs moved this Court to allow them to supplement
their appendix on appeal to include them, and this Court granted plaintiffs’ motion “without
prejudice to the ability of the case call panel to consider whether, or to what extent, these items are
relevant and properly considered in deciding this appeal.” Sheffield v Chippewa Co, unpublished
order of the Court of Appeals, entered November 4, 2025 (Docket No. 374645). We find this
supplemental information relevant to our decision and consider it.
9 As noted, the statutory deadline for former property owners, such as plaintiffs, whose property
was foreclosed and sold pre-Rafaeli, to file a notice of intent to seek their remaining proceeds was
March 31, 2025, which is derived from MCL 211.78t(6) and the date Schafer was decided on July
29, 2024. See Hathon, ___ Mich ___ at ___; 17 NW3d at 686-687. See also Schafer, 515 Mich
at 51.
10 As noted, pursuant to MCL 211.78t(6), a claimant must file a motion with the circuit court in
the same proceeding in which the judgment of foreclosure of the property was effective by the
following October 1 to claim the remaining proceeds.
11 <https://micourt.courts.michigan.gov/case-search/> (accessed May 21, 2026). Under MRE
201(b) through (d), a court may take judicial notice of an adjudicative fact at any stage of a
proceeding, including on its own motion.

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of recovery.” Dalley v Dykema Gossett PLLC, 287 Mich App 296, 305; 788 NW2d 679 (2010)
(quotation marks and citation omitted).
This Court reviews “questions of constitutional law, including the constitutionality of a
statute, de novo.” In re Petition of Kent Co Treasurer for Foreclosure, ___ Mich App ___, ___;
___ NW3d ___ (2025) (Docket Nos. 363463, 363766, 363808, and 364114); slip op at 5. This
Court also reviews “de novo whether the trial court properly interpreted and applied relevant
statutes.” Id.
III. SUMMARY DISPOSITION OF PLAINTIFF’S CLAIMS
Plaintiff Sheffield12 argues on appeal that the trial court erred in granting summary
disposition with prejudice pursuant to MCR 2.116(C)(8) in reliance upon Muskegon Co Treasurer,
which does not control because it involved post-Rafaeli tax-foreclosure sales, whereas her claim
involves an unlawful taking that occurred pre-Rafaeli. Plaintiff contends MCL 211.78t’s
retroactive application to her pre-Rafaeli claims does not undo the takings that already occurred
when defendants foreclosed and sold her property without notice or opportunity for her to obtain
surplus proceeds because there was no mechanism for doing so in place. Plaintiff further argues
that MCL 211.78t does not completely remedy the constitutional violations because it does not
provide for interest or attorney fees, and requires the FGU to withhold a 5% sales commission
from the proceeds. Therefore, plaintiff contends, in the context of the pre-Rafaeli claims at issue
here, that MCL 211.78t is not the exclusive means for former property owners to recover their
surplus proceeds, and Muskegon Co Treasurer does not support dismissal of her state-law claims.
Defendants respond that the Schafer decision and Hathon order addressed pre-Rafaeli
claims and hold that MCL 211.78t is the exclusive means of obtaining surplus proceeds for such
claimants. Further, plaintiff had constitutionally adequate notice of her right to claim her surplus
proceeds in accordance with MCL 211.78t by virtue of the statute’s enactment and the published
caselaw that followed. Defendants argue that they properly retained the surplus proceeds unless
and until plaintiff sought recovery pursuant to MCL 211.78t and plaintiff, in failing to comply with
MCL 211.78t, has forfeited her right to claim her surplus proceeds. Further, defendants contend
plaintiff improperly seeks fair-market value for her foreclosed property in her inverse
condemnation claim when she is only entitled to surplus proceeds, and only if she follows MCL
211.78t. Finally, the defendant county treasurer contends she was acting within the scope of her
executive authority and so is entitled to governmental immunity under the governmental tort
liability act (GTLA), MCL 691.1401 et seq., with regard to her retention of plaintiff’s surplus
proceeds.
12 As previously noted, following the filing of the parties’ briefing in this appeal, plaintiffs
McDonald and Halstead were each dismissed as parties by stipulation, and plaintiff Strauser was
dismissed without prejudice upon the parties stipulating that he is deceased, leaving plaintiff
Sheffield as the sole remaining appellant in this appeal and we accordingly only be considering
her arguments and refer to her as “plaintiff.”

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Plaintiff replies that: she is not seeking fair market value, but rather, the surplus proceeds
and additional recovery to which she is entitled; she has availed herself of MCL 211.78t; and her
claims may proceed regardless.
A. APPLICATION OF MCL 211.78t TO PRE-RAFAELI CLAIMS
As already noted, this Court held in Muskegon Co Treasurer that “our Legislature intended
MCL 211.78t as the sole mechanism by which a former owner of foreclosed property could obtain
any proceeds remaining from the tax-foreclosure sale and satisfaction of the owner’s delinquent
taxes and associated costs.” Muskegon Co Treasurer, 348 Mich App at 688. Citing Nelson, 352
US at 109-110, this Court reasoned that former property owners with constitutionally adequate
notice of their right to claim surplus proceeds do not suffer a compensable taking if they do not
avail themselves of the procedures to do so under MCL 211.78t, but rather have forfeited those
proceeds. Id. at 699-704. Muskegon Co Treasurer, however, involved post-Rafaeli claims when
the statutory mechanism to recover surplus proceeds was already in effect. Id. at 686.
The instant case is distinct in that it involves tax foreclosure sale of properties that occurred
pre-Rafaeli. This is a material distinction because, in post-Rafaeli sales, the statutory scheme
effectively prevents a taking of the property owner’s surplus proceeds in the first place by requiring
the FGU to notify the property owner of the right to claim the surplus before the foreclosure sale,13
and providing the opportunity to claim the surplus under the mechanism set forth in MCL 211.78t.
See, e.g., Howard v Macomb Co, 133 F4th 566, 572 (CA 6, 2025) (“Michigan’s [amended, post-
Rafaeli] procedures for collecting the surplus do not compensate the property owner for a taking.
They prevent a taking from happening in the first place.”).14
Pre-Rafaeli, the GPTA did not provide “for any disbursement of the surplus proceeds to
the former property owner, nor [did] it provide former owners a right to make a claim for these
surplus proceeds” (and of course the statutory presale-notice requirements involving the property
owner’s right to claim surplus proceeds did not yet exist). Rafaeli, 505 Mich at 447. Further, even
after its enactment, MCL 211.78t did not provide any means for pre-Rafaeli claimants, such as
plaintiff, to recover their surplus proceeds until July 24, 2024, when the Supreme Court gave
Rafaeli full retroactive effect. Schafer, 515 Mich at 13, 15. Before then, MCL 211.78t(1)(b)
“barred any claims for surplus proceeds for properties foreclosed prior to the July 2020 Rafaeli
decision.” Id. at 15. Accordingly, by the time Schafer was decided, “[o]ver three years [had]
passed since 2020 PA 256 was enacted, and for over three years the statute has attempted to bar
relief for individuals whose constitutional rights were violated.” Schafer, 515 Mich 54 n 4
(ZAHRA, J., concurring).
Despite this distinction, Schafer leaves no doubt that all property owners must resort to the
mechanism under MCL 211.78t to recover their surplus proceeds before pursuing state-law tort
13 See MCL 211.78g(2); MCL 211.78i(7).
14 “The decisions of intermediate federal courts are not binding on this Court, although they may
be considered for their persuasive value.” People v Lucynski, 509 Mich 618, 638 n 10; 983 NW2d
827 (2022).

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and constitutional claims. Schafer, 515 Mich at 13, 15, 42, 45 (pre-Rafaeli sales). Schafer
describes MCL 211. 78t as “creat[ing] a controlling and structured system for adjudication of tax-
foreclosure disputes as the exclusive means of obtaining surplus proceeds.” Schafer, 515 Mich at
45. See also Jackson, ___ Mich at ___; slip op at 15-17, 22-23 (reaffirming Schafer’s holding that
MCL 211.78t applies retroactively to existing pre-Rafaeli claims). Again, MCL 211.78t(11)
explicitly states that “[t]his section is the exclusive mechanism for a claimant to claim and receive
any applicable remaining proceeds under the laws of this state.” (Emphasis added.)
This is also confirmed by our Supreme Court’s remand order in Hathon, ___ Mich ___; 17
NW3d 686 (2025).15 Hathon, like this case, involved pre-Rafaeli foreclosure sales. Significantly,
the Supreme Court reiterated that MCL 211.78t is the exclusive mechanism for a former property
owner to recover surplus proceeds under state law. Hathon, ___ Mich at ___; 17 NW3d at 686.
The Court continued that MCL 211.78t(11) offers a “mechanism” that “works within the confines
of existing tax-foreclosure lawsuits filed in circuit court by the foreclosing unit of government
without claimants having to file a counterclaim or initiating a new lawsuit against any person or
entity,” and that “[f]or a claimant to preserve their right to claim remaining proceeds under MCL
211.78t, they must initiate the statutory process by providing the foreclosing unit of government
notice of their intent to seek remaining proceeds by March 31, 2025, using a form prescribed by
the Department of Treasury.” Hathon, ___ Mich at ___; 17 NW3d at 686-687 (emphasis added),
citing MCL 211.78t(6); Schafer, 515 Mich at 49-52. Hathon therefore confirmed what Schafer
decided; that in the context of pre-Rafaeli foreclosure sales: “Properly notified claimants must first
utilize the statutory process provided by MCL 211.78t for recovery of remaining post-foreclosure
sale proceeds before challenging the adequacy of or the application of that process as applied to
them.” Hathon, ___ Mich at ___ n 1; 17 NW3d at 687 n 1 (emphasis added). Plaintiff seeks a
different result by arguing that Muskegon Co Treasurer is factually distinguishable, but this Court
is, of course, bound to follow the subsequent decisions of our Supreme Court in Schafer and
Hathon.16
However, the Court’s statement that “[p]roperly notified claimants must first utilize the
statutory process provided by MCL 211.78t” indicates that proper notice of the right to claim
surplus proceeds is required before a former property owner is obligated to invoke MCL 211.78t
to seek recovery of their rightful proceeds. Hathon, ___ Mich at ___ n 1; 17 NW3d at 687 n 1.
Turning to federal courts interpreting Michigan law, we reach essentially the same
conclusion. Rather than try to “reinvent the wheel,” as this same panel of this Court just held in
the substantially similar pre-Rafaeli Armour decision:
In 2025, the Sixth Circuit Court of Appeals held that a former property
owner’s failure to comply with the requirements of MCL 211.78t resulted in a
15 Hathon was one of the consolidated cases considered in Schafer, 515 Mich 1.
16 As this panel already noted in Armour: “Hathon is binding authority. As a final order, it
contained a concise statement of the applicable facts, as well as the reasons for our Supreme
Court’s decision. Accordingly, it is binding on this Court.” Armour, ___ Mich App at ___; slip
op at 9 (citations omitted).

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forfeiture of her claim to such proceeds. Howard v Macomb Co, 133 F4th 566,
570-572 (CA 6 2025).
This case and the federal precedent cited therein refute any claim that MCL
211.78t impermissibly places conditions on a federal constitutional claim or
attempts to preempt federal law, as plaintiffs suggest. To the contrary, recognizing
that “[t]he power to tax ends, and the duty to account for a taking begins, when a
State confiscates more property than it is owed,” the Sixth Circuit acknowledged
Michigan’s past deficiency and found that Michigan established a procedure to
“correct this problem” by “now giv[ing] owners a chance to recover any surplus.”
Id. at 569-570.
Seventy years ago, the United States Supreme Court recognized that
“nothing in the Federal Constitution prevents” foreclosure of a property owner to
recover delinquent taxes when the state had procedures to ensure notice and the
opportunity to contest the foreclosure sale before it occurred. Nelson v City of New
York, 352 US 103, 109-111; 77 S Ct 195; 1 L Ed 2d 171 (1956). Evaluating the
procedures in MCL 211.78t, the Sixth Circuit in Howard recognized that, “Nelson
v City of New York, shows that this kind of process complies with the Takings
Clause.” Howard, 133 F4th at 570. By providing former property owners with
“the opportunity to recover [their] surplus and set[ting] several reasonable steps for
claiming it,” the procedures in MCL 211.78t prevent a taking from happening. Id.
at 572. “A county that allows property owners to obtain any surplus after a
foreclosure and keeps the residual only if the owners do not seek it does not commit
a taking” under federal law. Id. at 572.
Furthermore, the procedures of MCL 211.78t do not immunize government
officials from releasing the taken property. That was the issue in Williams[ v Reed],
604 US 168[; 145 S Ct 465; 221 L Ed 2d 44 (2025)], which involves a claim under
42 USC 1983 resulting from an allegedly unlawful delay in processing of
unemployment benefits claims. In Williams, “[t]he claimants did not ask the court
to rule that they were entitled to unemployment benefits, [but] [r]ather, they simply
asked the court to order the Department to promptly address their benefits claims.”
Id. at 172-173. Dismissal of their complaint for failure to address the administrative
requirements that were a dead end effectively immunized the state officials from
the alleged constitutional claims. Id. at 174. This is not the situation here. MCL
211.78t provides timelines and procedures that, if a plaintiff chooses to engage,
requires the FGU to pay the amounts due. Dismissal of plaintiffs’ complaint
because they failed to follow these procedures is not violative of federal or state
law. [Armour, ___ Mich App at ___; slip op at 9-10.]
Nothing in the present case directs a different result than that reached in Armour.

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B. CONSTITUTIONALLY ADEQUATE NOTICE OF RIGHT TO CLAIM SURPLUS
PROCEEDS UNDER MCL 211.78t ON PRE-RAFAELI CLAIMS
Notice is a “fundamental requirement of due process.” Kent Co Treasurer, ___ Mich App
at ___; slip op at 12 (quotation marks and citation omitted). Constitutionally adequate notice is
“notice reasonably calculated, under all the circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections.” Id. at 12
(quotation marks and citations omitted). This Court has addressed the notice required in the post-
Rafaeli context as follows:
Given our Supreme Court’s acknowledgement . . . that a former property
owner’s right to surplus proceeds from a tax sale is a constitutionally protected
right, distinct from the owner’s interest in the real property and survives the
foreclosure process, we conclude that the former property owner is also
constitutionally entitled to receive notice from the FGU regarding the right to claim
any surplus proceeds. This notice must be provided before the FGU can deprive
the property owner of these surplus proceeds. Vested property rights are protected
by due process and a former property owner has a cognizable, vested property right
to the surplus proceeds resulting from the tax-foreclosure sale of their properties.
[Kent Co Treasurer, ___ Mich App at ___; slip op at 13 (quotation marks and
citations omitted; emphasis added).]
Therefore, notice is essential in this context. Indeed, this Court has recognized that “it is
imperative to provide explicit notifications that detail the right to claim any remaining proceeds . . .
and the procedures specified in MCL 211.78t.” Kent Co Treasurer, ___ Mich App at ___; slip op
at 13. “Integral to this Court’s conclusion in Muskegon Co Treasurer was the fact that the [FGU]
followed the statutory scheme by providing the [former property owners] with notices that
adequately informed them of ‘their right to claim any excess proceeds and told them how to express
their intent to exercise that right.’ ” Id. at ___; slip op at 8, quoting Muskegon Co Treasurer, 348
Mich App at 696.
Whether constitutionally adequate notice has been provided depends on the individual
circumstances. See Kent Co Treasurer, ___ Mich App at ___; slip op at 13-14. Plaintiff contends
that defendants provided no notice of her right to claim her surplus proceeds, and the record
contains no indication that defendants took any steps to notify plaintiff of her retroactive right to
claim her surplus proceeds in accordance with MCL 211.78t(6), by publication, or otherwise.
Further, the parties do not assert that there is any statutory requirement that the FGU provide such

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notice in the case of pre-Rafaeli tax-foreclosure sales.17
Defendants argue that plaintiff had actual notice of her retroactive right to claim surplus
proceeds through the Legislature’s enactment of 2020 PA 26 and our Supreme Court’s decision in
Schafer, 515 Mich at 13. Defendants argue that property owners are presumed to know the law
relevant to their interests, and therefore that the Legislature need only enact and publish the law to
provide sufficient notice to trigger claimants’ obligation to seek recovery of surplus proceeds
through the statutory mechanism.18
[The Supreme Court] presume[s] that the citizenry knows the law, as long as the
Legislature has enacted and published the law, and afforded the citizenry a
reasonable opportunity to familiarize itself with its terms. This is true even when
the government makes changes in the law affecting property rights. [In re Rasmer
Estate, 501 Mich 18, 45; 903 NW2d 800 (2017) (quotation marks, citations, and
alterations omitted).]
However, just as this Court found in Armour, “there is no evidence in the record that . . .
plaintiff was prevented from filing a notice of intention outside of this statutory limitations period.”
Armour, ___ Mich App at ___; slip op at 8. In fact, during oral argument, counsel for the sole
remaining plaintiff confirmed that her proceedings to recover surplus proceeds pursuant to MCL
211.78t were now complete.
C. CHALLENGES TO THE ADEQUACY OF THE STATUTORY REMEDY
Although the Supreme Court in Hathon and Schafer confirmed that plaintiffs must first
pursue recovery of surplus proceeds through MCL 211.78t(6), the Court did not address whether
that remedy adequately redresses unconstitutional takings in the context of pre-Rafaeli tax-
foreclosure sales.
17 Defendants assert that
there is no “statutory” requirement for counties or their treasurers to provide
potential claimants with retroactive notice of the procedures of MCL 211.78t or of
the risk that a claim for surplus proceeds could be forfeited by noncompliance.
With regard to foreclosures occurring before the enactment of MCL 211.78t, there
were no “statutory” notice requirements regarding the MCL 211.78t procedures at
all.
18 Defendants also assert that plaintiff’s counsel represented the claimants in both Schafer and
Muskegon Co Treasurer, and therefore that plaintiff’s counsel’s knowledge of plaintiff’s
obligation to seek recovery of her surplus proceeds under MCL 211.78t is properly imputed to her,
making it “disingenuous” for plaintiff to now assert that she never had such notice. See, e.g., Katz
v Kowalsky, 296 Mich 164, 170; 295 NW 600 (1941) (noting that “where a client is represented
by an attorney, knowledge acquired by the attorney while acting within the scope of his authority
is, by fiction of law, the knowledge of the client”).

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The recognition and redress of constitutional violations are quintessentially judicial
functions, required of us by the Separation of Powers Clause. See Const 1963, art
3, § 2. Our Court maintains primacy in interpreting the Constitution. . . . Further,
while the Legislature cannot trump the Constitution itself, the Legislature may
implement a remedial scheme that provides a means of vindicating the con-
stitutional right at a level equal to a remedy this Court could afford. In those
circumstances, we would be unlikely to duplicate the Legislature’s efforts. But . . .
this Court retains the authority—indeed the duty—to vindicate the rights
guaranteed by our Constitution. That includes recognizing causes of action seeking
money damages. Therefore, money damages are an available remedy for con-
stitutional torts unless (1) the Constitution has delegated to another branch of
government the obligation to enforce the constitutional right at issue, . . . or (2)
another branch of government has provided a remedy that we consider
adequate . . . . [Bauserman v Unemployment Ins Agency, 509 Mich 673, 687; 983
NW2d 855 (2022) (citations omitted).]
Therefore, if the remedy under MCL 211.78t adequately vindicates the constitutional violation, a
claim for money damages is not available. Id. at 681, 687. Conversely, if the legislative remedy
does not afford plaintiffs a constitutionally adequate remedy to redress the violation, they may still
have an actionable takings claim for Rafaeli-based damages.19
Plaintiff asserts that MCL 211.78t does not provide a constitutionally adequate remedy for
the takings in the context of her pre-Rafaeli claims because, although MCL 211.78t(6) provides
for the return of her surplus proceeds, the statute does not provide for attorney fees or interest from
the time of the foreclosure sale. Cf. Knick v Scott Twp, 588 US 180, 190; 139 S Ct 2162; 204 L
Ed 2d 558 (2019) (holding that “compensation must generally consist of the total value of property
when taken, plus interest from that time”); Miller Bros v Dep’t of Natural Resources, 203 Mich
App 674, 690; 513 NW2d 217 (1994) (“A person has a constitutional right to interest from the date
of a taking until the date of compensation”). Further, plaintiff complains that the statutory remedy
is inadequate because MCL 211.78t(9) requires that a sales commission equal to 5% of her
proceeds be withheld. That deduction is in addition to deductions for the FGU’s expenses incurred
“in connection with the forfeiture, foreclosure, sale, maintenance, repair and remediation of the
property.” MCL 211.78t(12)(b)(ii). See Miller Bros, 203 Mich App at 685 (“The purpose of just
compensation is to put property owners in as good a position as they would have been in had their
property not been taken from them.”); Rafaeli, 505 Mich at 484 (holding that the FGU may retain
proceeds equal to the fees “reasonably related to the foreclosure and sale of the property—no more,
no less”). According to plaintiff, MCL 211.78t therefore does not completely redress the unlawful
taking she suffered, leaving her entitled to pursue her remedies through her claims for damages.
19 In Jackson, ___ Mich at ___; slip op at 19, the Supreme Court held in a different context that
“[b]ecause MCL 211.78t does not provide plaintiffs with any possibility of relief, MCL 211.78t
does not govern this dispute and claimants should proceed through standard processes of inverse
condemnation, separate from the statutory process of MCL 211.78t.”

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It does not appear that our appellate courts have squarely addressed the constitutional
adequacy of the statutory remedy in this regard in the context of pre-Rafaeli sales in published
caselaw, although Muskegon Co Treasurer recognized that the statutorily required 5% sales
commission implicates “the question whether our Legislature actually [fully] addressed [sic:
remedied] the constitutional infirmity of the prior version of the GPTA.”20 Muskegon Co
Treasurer, 348 Mich App at 690.
Even if these assertions have merit, however, it is not necessary for this Court to address
the adequacy of the statutory remedy at this time. Again, our Supreme Court has directed pre-
Rafaeli claimants to first avail themselves of the statutory mechanism:
We take no position as to the merits of the plaintiffs’ assertions that they are
also entitled to recover interest and attorney fees or their claim that the sales
commission under MCL 211.78t(9) is unconstitutional. However, litigation of
these claims is premature. Properly notified claimants must first utilize the
statutory process provided by MCL 211.78t for recovery of remaining post-
foreclosure sale proceeds before challenging the adequacy of or the application of
that process as applied to them. [Hathon, ___ Mich at ___ n 1; 17 NW3d at 687
n 1 (citations omitted, emphasis added).]
Accordingly, plaintiff must pursue recovery of her surplus proceeds through the mechanism
provided by MCL 211.78t(6) before challenging its adequacy through her state tort and state and
federal constitutional claims. 21 Id.
In sum, under Schafer and Hathon plaintiffs must first resort to MCL 211.78t(6) to recover
their surplus proceeds. Because they had not done so at the time of defendants’ summary
disposition motion, the trial court properly dismissed plaintiffs’ state tort and state and federal
constitutional claims.
20 The property owners in Muskegon Co Treasurer challenged the constitutionality of the 5% sales
commission under MCL 211.78t(9), but this Court declined to consider the issue because those
owners claims for surplus proceeds were denied and they were therefore never subjected to the
commission such that the issue was not ripe for review. Muskegon Co Treasurer, 348 Mich App
at 703. See also Kent Treasurer, ___ Mich App at ___; slip op at 16.
21 As noted above, the supplemental information plaintiff has provided indicates that she has
availed herself of the statutory mechanism under MCL 211.78t(6) by timely initiating claims to
recover her surplus proceeds and filing the required motion to disperse her remaining proceeds.
Further, the Chippewa County Circuit Court online register of actions with regard to plaintiff’s
disbursement motion reveals that it was granted on April 29, 2026 and remaining proceeds were
disbursed on May 15, 2026. Further, during oral argument plaintiff’s counsel stated that
proceedings to recover surplus proceeds pursuant to MCL 211.78t were completed. While she
may now attempt to avail herself of any procedural mechanisms available to pursue her remaining
claims in that case, that matter is not currently before this Court.

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D. DISMISSAL WITHOUT PREJUDICE
Although the trial court’s dismissal was proper, it should have been without prejudice.
A dismissal with prejudice amounts to an adjudication on the merits and bars a
further action based on the same facts. But a dismissal without prejudice is not a
dismissal on the merits. Our Supreme Court has described that the term “without
prejudice” signifies a right or privilege to take further legal proceedings on the same
subject, and show[s] that the dismissal is not intended to be res adjudicata of the
merits. A dismissal of a suit without prejudice is no decision of the controversy on
its merits, and leaves the whole subject of litigation as much open to another suit
as if no suit had ever been brought. [Grimmer v Lee, 310 Mich App 95, 102; 872
NW2d 725 (2015) (quotation marks and citations omitted).]
Here, the trial court did not adjudicate the substantive merits of plaintiffs’ state-law tort and state
and federal constitutional claims, yet dismissed them with prejudice on the basis that plaintiffs
were required to use the mechanism provided by MCL 211.78t to recover their surplus proceeds.
However, because plaintiffs are entitled to just compensation to redress the taking of their surplus
proceeds from their pre-Rafaeli sales, they should retain their prerogative to reassert their claims
to the extent that the statutory mechanism does not afford constitutionally adequate relief.
Therefore, the dismissal with prejudice was premature. See Armour, ___ Mich App at ___; slip
op at 2.
We affirm the trial court’s order granting summary disposition pursuant to MCR
2.116(C)(8), but reverse that ruling to the extent it was made with prejudice, and remand to the
trial court for entry of an order of dismissal without prejudice. We do not retain jurisdiction.
/s/ James Robert Redford
/s/ Randy J. Wallace
/s/ Andrew J. Lievense

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