4.3Initiating Summary Proceedings
Unless Administrative Order No. 2020-17 provides otherwise, “a court must comply with MCR 4.201 with regard to summary proceedings.” AO 2020-17.1
MCR 2.407, MCR 2.408, and MCR 4.201(F) address the use of videoconferencing technology in civil cases. For any hearing held under subchapter 4.200, “the court must allow the use of videoconferencing technology in accordance with MCR 2.407 and MCR 2.408. The use of videoconferencing is presumed when providing the advice of rights and information required under [MCR 4.201(K)(2)(a)].”2 MCR 4.201(F). See the Michigan Judicial Institute’s Civil Proceedings Benchbook, Chapter 1, for additional information on the use of videoconferencing.
The Summary Proceedings Act allows only “[a] person entitled to possession of premises [to] recover possession by summary proceedings[.]” MCL 600.5714(1). See also MCL 600.2041; MCR 2.201(B) (all actions must be brought by the real party in interest). The plaintiff must “show the plaintiff’s right to possession and indicate why the defendant’s possession is improper or unauthorized.” MCR 4.201(B)(1)(e). In summary proceedings, the district court has equitable jurisdiction concurrent with the circuit court; therefore, if questions of ownership arise during summary proceedings, the district court is authorized to determine title to the property involved if such a determination is necessary to adjudicate the possession issue. MCL 600.8302(1); MCL 600.8302(3).
Committee Tip:
On occasion, a party appearing or named in a proceeding is not the real party in interest. Where there is any question about a party’s propriety, the court should make any necessary inquiry to determine whether the real party in interest is indeed the named party and the party appearing in court. Where a party is not the proper party and the reason for the mistake is merely technical, the Committee suggests that the court adjourn the matter and allow an amendment of the complaint. Where the mistake is not merely technical (and perhaps even purposeful), the court may, in its discretion, dismiss the case or adjourn and allow an amendment of the complaint.
In any summary proceeding to recover possession of premises, parties are entitled to representation. MCR 4.201(G)(2). The court must inform any party who appears without counsel of the right to retain an attorney and about legal aid assistance when it is available. Id. MCR 4.201(K)(2)(a)(i) specifically requires the court to verbally inform the defendant of the right to an attorney under MCR 4.201(G)(2) “at the initial date and time set for trial noticed by the summons[.]” See MCR 4.201(J) and Section 4.13 for information on consent judgments or orders entered in a case where either party is unrepresented.
Generally, a nonattorney may not engage in the unauthorized practice of law.3 MCL 600.916. “[A] person engages in the practice of law when he [or she] counsels or assists another in matters that require the use of legal discretion and profound legal knowledge.” Dressel v Ameribank, 468 Mich 557, 566 (2003).
1.Individuals
In Michigan, a natural person has a constitutional right to represent himself or herself in court. Const 1963, art 1, § 13 states, “A suitor in any court of this state has the right to prosecute or defend his [or her] suit, either in his [or her] own proper person or by an attorney.” See also MCL 600.1430, which states in part, “Every person of full age and sound mind, may prosecute or defend civil actions in any court by an attorney, or may, at his [or her] election, prosecute or defend civil actions in person.”
A party or witness with limited English proficiency is entitled to a court-appointed foreign language interpreter if the interpreter’s “services are necessary for the person to meaningfully participate in the case or court proceeding.” MCR 1.111(B)(1). In addition, “[t]he court may appoint a foreign language interpreter for a person other than a party or witness who has a substantial interest in the case or court proceeding.” MCR 1.111(B)(2). A person financially able to pay for the services of a foreign language interpreter may be ordered to reimburse the court for the cost of the interpreter. MCR 1.111(F)(5).4
“While an individual may appear in propria personam, a corporation, because of the very fact of its being a corporation, can appear only by attorney[.]” Detroit Bar Ass’n v Union Guardian Trust Co (Denying Rehearing), 282 Mich 707, 711 (1938). “A layman is not authorized to practice law merely because he [or she] is an employee of a corporate fiduciary.” Id. The requirement that a corporation be represented by an attorney extends to the preparation and filing of all pleadings. Detroit Bar Ass’n v Union Guardian Trust Co, 282 Mich 216, 222 (1937) (“It is too obvious for discussion that the practice of law is not limited to the conduct of cases in courts. According to the generally understood definition of the practice of law in this country, it embraces the preparation of pleadings and other papers incident to actions . . . .”) (Quotation marks omitted). See also Dressel v Ameribank, 468 Mich 557, 564-565 (2003) (citing the rule set out in Detroit Bar Ass’n with approval).
Committee Tip:
Any legal entity must be represented by counsel. A trust is a legal entity. Just as a nonattorney employee or fiduciary of a corporation may not represent the corporation, a named trustee may not represent the trust if he or she is not an attorney.
Subject to the requirements outlined in MCR 8.120, qualified law students and recent law school graduates are permitted to represent indigent individuals in every Michigan court except the Supreme Court. MCR 8.120(A); MCR 8.120(D)(1). To be eligible, law students must: (1) have completed and received a passing grade in at least one year of coursework at an accredited law school, and (2) “meet[] the academic and moral standards established by the dean of that school.” MCR 8.120(C). “A ‘recent law school graduate’ is a person who has graduated from law school within the past year.” Id. A qualified law student or recent graduate may undertake all phases of representation, including advising a client, negotiating on behalf of a client, and appearing in court on a client’s behalf. MCR 8.120(D)(1). “Except as otherwise provided in [MCR 8.120], the indigent person that will be assisted by [a] student must consent in writing to the representation.” MCR 8.120(D)(1).
The student’s or recent graduate’s appearance in court must be approved by the judge or a majority of the panel of judges before whom the student or graduate is to appear, and the proceedings in which a student or graduate appears may be suspended at any stage if the student’s or graduate’s representation “is professionally inadequate” and if “substantial justice requires suspension.” MCR 8.120(D)(3)(a)-(b).
A member of the Michigan Bar must supervise the student’s or graduate’s work and, in particular, must examine and sign all pleadings filed by the student or graduate. MCR 8.120(D)(2). A supervising attorney is not required to be present when the student or graduate is giving advice, negotiating, or appearing in court on a client’s behalf during summary proceedings. See MCR 8.120(D)(2)(a)-(b).
Equitable jurisdiction is appropriate when there is no adequate legal remedy. Berger v Roe, 179 Mich 184, 188 (1914).
MCL 600.5704 expressly grants the district court “jurisdiction over summary proceedings to recover possession of premises under [MCL 600.5701 et seq.].” In addition, MCL 600.8302 confers on the district court jurisdiction over equitable claims in summary proceedings:
“(1) In addition to the civil jurisdiction provided in [MCL 600.5704 (summary proceedings) and MCL 600.8301 (amount in controversy)], the district court has equitable jurisdiction and authority concurrent with that of the circuit court in the matters and to the extent provided by this section.
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(3) In an action under [MCL 600.5701 et seq.], the district court may hear and determine an equitable claim relating to or arising under [MCL 600.3101 et seq. (foreclosures), MCL 600.3301 et seq. (partitioning property), or MCL 600.3801 et seq. (nuisance)] or involving a right, interest, obligation, or title in land. The court may issue and enforce a judgment or order necessary to effectuate the court’s equitable jurisdiction as provided in this subsection, including the establishment of escrow accounts and receiverships.” MCL 600.8302.
Venue for summary proceedings “in all courts having jurisdiction over summary proceedings” is governed by MCL 600.5706. MCL 600.5706(1). For districts of the first class, venue is proper in the county where all or part of the premises are located. MCL 600.5706(2)(a). In districts of the second or third class, venue is proper in the district where all or part of the premises are located. MCL 600.5706(2)(b). If a district court is not operative within a district, venue is proper in a municipal court having jurisdiction over a city or township in which all or part of the premises are located. MCL 600.5706(3).
MCL 600.5706 is not jurisdictional. MCL 600.5706(1). If summary proceedings are brought in an improper venue, the proceedings may continue there unless the defendant moves for a change of venue under the applicable court rule, MCR 2.221, before or at the time of filing an answer, or unless the court on its own motion orders a change in venue. MCL 600.5706(4); MCR 2.221(A).
The court must verbally inform the parties of the right to a proper venue under MCR 4.201(G)(3) at the initial date and time set for trial noticed by the summons. MCR 4.201(K)(2)(a)(ii). If the case is first filed in an improper venue and transferred to a proper venue, the plaintiff must pay an additional filing fee to the court to which the case is transferred. MCL 600.5706(4); MCR 2.223(B)(1). The plaintiff may also have to pay other court costs and expenses as ordered by the transferring court, including reasonable compensation and attorney fees to the defendant. MCR 2.223(B)(1); MCR 2.223(C)(1). See also MCL 600.5706(4). Any such fees and costs must be paid before the action may go forward in the new court. MCR 2.223(C)(1). If they are not paid within 28 days from the date of the order to change venue, the court to which the case was transferred must dismiss it. Id.
“On such grounds and conditions as may be provided by court rule,” summary proceedings begun in a proper venue “may be changed to any other county, district, or court and the proceeding tried in that county, district, or court.” MCL 600.5706(5). If the case is first filed in a proper venue and transferred to a different venue, “[t]he party that moved for change of venue must pay to the receiving court within 28 days of the date of the transfer order the applicable filing fee as ordered by the transferring court.” MCR 2.222(E)(1). No action may be taken until payment is made. Id. If the fee is not paid, the court to which the case was transferred must order the case transferred back to the transferring court. Id.
“The transferring court must enter all necessary orders pertaining to the certification and transfer of the action to the receiving court.” MCR 2.222(D)(1); MCR 2.223(B)(1). The order must be entered on a SCAO-approved form. MCR 2.226(A). If the order “is not prepared as required under [MCR 2.226(A)], and the order lacks the information necessary for the receiving court to determine under which rule the transfer was ordered, the clerk of the receiving court shall refuse to accept the transfer and shall prepare a notice of refusal on a form approved by the [SCAO] and return the case to the transferring court for a proper order within seven business days of receipt of the transfer order.” MCR 2.226(B). Upon receipt of a refusal to accept a transfered case under MCR 2.226(B), the transferring court must “prepare a proper order in accordance with [MCR 2.226(A)] and retransfer the case within seven business days.” MCR 2.226(C). Unless fees have been waived in accordance with MCR 2.002, the court must order the moving party (in an action where venue was proper) or the plaintiff (in an action where venue was improper) to pay the applicable statutory filing fee to the receiving court. MCR 2.222(D)(1); MCR 2.223(B)(1). “Notwithstanding any other provision of [MCR 2.002], courts must enable a litigant who seeks a fee waiver to do so by an entirely electronic process.” MCR 2.002(L).
“The transferring court must serve the order [of transfer] on the parties and send a copy to the receiving court. The clerk of the transferring court must prepare the case records for transfer in accordance with the orders entered under [MCR 2.222(D)(1) or MCR 2.223(B)(1)] and the Michigan Trial Court Records Management Standards and send them to the receiving court by a secure method.” MCR 2.222(D)(2); MCR 2.223(B)(2). “The receiving court must temporarily suspend payment of the filing fee and open a case pending payment of the filing fee as ordered by the transferring court. The receiving court must notify the party that moved for change of venue (where venue was proper) or the plaintiff (where venue was improper) of the new case number in the receiving court, the amount due, and the due date.” MCR 2.222(D)(3); see also MCR 2.223(B)(3). Where a jury fee has already been paid, “the clerk of the transferring court must forward it to the clerk of the receiving court as soon as possible after the case records have been transferred.” MCR 2.222(E)(2); MCR 2.223(C)(2).
“The court to which any transfer is made[, whether the case was first filed in a proper or improper venue,] has full jurisdiction of the proceeding as though the proceeding were originally commenced in that court.” MCL 600.5706(5).
E.Payment of Money After Initiation of Summary Proceedings
“The payment or the acceptance of money by a party before trial does not necessarily prevent or delay the proceedings.” MCR 4.201(K)(4). The court rule suggests that a tenant’s payment of money or the landlord’s acceptance of money has no automatic consequence, and that the court has discretion whether to halt or continue the proceedings. Caselaw indicates that a landlord’s acceptance of rent for a term occurring after the date on the notice of termination may waive the landlord’s initial claim for possession. Whether a landlord has waived the notice to terminate is a question of fact that depends on the circumstances under which the rent was received. Aspen Enterprises, Ltd v Bray, 148 Mich App 9, 14 (1985).
For a case decided under the 1969 version of MCR 4.201,5 see Park Forest of Blackman v Smith, 112 Mich App 421 (1982). Under the rule of Park Forest, “the landlord waives the notice to terminate by accepting rental payments for a period of time subsequent to the date specified in the notice.” Id. at 426. The Court further stated, “It is inconsistent for a landlord to assert a termination of the lease and then, after the time specified in the notice has passed, accept rent for a further period of time when the tenant has not received notice that summary proceedings have been commenced.” Id.
See also Aspen Enterprises, 148 Mich App at 12-13, where the Court stated: “Acceptance of rent after efforts to gain possession have been commenced may result in a waiver[,]” but “[r]eceipt of rent checks after sending a notice to quit does not automatically constitute waiver.” In Aspen Enterprises, the Court determined that summary disposition was improper because there existed a question of fact regarding the landlord’s intent in retaining the tenant’s rent checks. Id. at 14. According to the Court, the question was whether the landlord accepted the tenant’s late rent payments and “whether [the tenant] might have been misled by [the landlord’s] retention [without cashing] of the checks for more than a week.” Id. The Court noted that “the landlord’s retention of [] payments [for future rent], without more, constitutes a waiver of the notice.” Id.