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

MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., as
nominee for InterBay Funding, LLC,
Plaintiff-Appellant,

v.

TAMMY CHURCH; CHARLES O.
DAVIS,
Defendants,

EXCERPTS:

SUTTON, Circuit Judge. It sometimes pays to check a map. The mortgage lender in this case did not, and as a result it recorded an interest in Tammy Church’s property in the wrong county. Luckily for the public fisc, the IRS, which also placed a lien on Church’s property, did not make the same mistake. When the lender realized what had happened, it sued, seeking in equity what it could not get in law—a declaration that it had the superior claim to the property. Equity does not save the lender in this instance, and we therefore affirm.

[…]

Everyone makes mistakes, to be sure. But it is difficult to find a basis in Michigan law for overlooking this one. MERS is not just a sophisticated party; its sophistication relates to this precise area of business and law—lending money and securing the loans with an interest in the borrowers’ property. See Deutsche Bank Trust Co. Ams. v. Spot Realty, Inc., 714 N.W.2d 409, 414 (Mich. Ct. App. 2005) (“[T]he doctrine of equitable subrogation was never intended for the protection of  sophisticated financial institutions that can cho[o]se the terms of their credit agreements.”). Nor was
it a state secret that Church’s property was in Antrim County. MERS attached to its own pleadings a settlement statement completed the day the mortgage was executed (reflecting the MERS loan and Church’s payment of her debts) and a sheriff’s deed foreclosing Church’s property, both dated before MERS recorded its interest in the wrong county and both identifying Church’s property as part of Antrim County. “A court’s equitable power is not an unrestricted license for the court” to do what it wishes with the fact patterns that come before it. Devillers v. Auto Club Ins. Ass’n, 702 N.W.2d 539, 556 (Mich. 2005). There must be a legitimate explanation for invoking that power. There is
none here.

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