GOOD MORNING FLINT! date: 01/29/13
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Can you change a divorce judgement if the other side misrepresents a fact.? Yes but it is not easy.
If you do not take an online credit counselingbefore can you fiie for chapter 7 Bankruptcy? No.
By Terry R. Bankert [trb] terry@attorneybankert.com
www.attorneybankert.com , https://www.facebook.com/attorneybankert, Flint Divorce & Bankruptcy 810-235-1970
DIVORCE
Issue:
Motion for relief from a FOC judgment; MCR 2.612(C)(1)(c); Rose v. Rose; "Misrepresentation";Titan Ins. Co. v. Hyten;
An action or conduct as a representation; M&D, Inc. v. W.B. McConkey; Requirement that a party's reliance on a misrepresentation be "reasonable";
Court: Michigan Court of Appeals (Unpublished) 12/18/12
No. 302389,Manistee Circuit Court,, LC No. 02-011013-DM
Case Name: Niell v. Schmoke
e-Journal Number: 53532
Judge(s): Per Curiam – Hoekstra, Borrello, and Boonstra
This Court reviews for an abuse of discretion a trial court’s decision to grant or deny
relief from judgment. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 404; 651 NW2d
756 (2002). An abuse of discretion occurs when the trial court selects an outcome that falls
outside the range of principled outcomes.Ewald v Ewald, 292 Mich App 706, 725; 810 NW2d
396 (2011). Further, this Court reviews a trial court’s findings of fact for clear error.
McNamara v Horner , 249 Mich App 177, 182; 642 NW2d 385 (2002). The trial court’s findings of fact are clearly erroneous if, after review of the entire record, this Court is left with the definite and firm conviction that a mistake was made.Id. at 182-183.
Holding that the trial court erred in modifying the FOC judgment on the basis of an alleged misrepresentation by the plaintiff-ex-wife, the court vacated the trial court's order granting the defendant-ex-husband's motion under MCR 2.612(C)(1)(c) for relief from the judgment.
THE TRIAL COURT ERRED IN GRANTING DEFENDANT RELIEF FROM
JUDGMENT BASED ON MISREPRESENTATION
MCR 2.612(C) provides in relevant part:
(1) On motion and on just terms, the court may relieve a party or the legal
representative of a party from a final judgment, order, or proceeding on the
following grounds:
* * *
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of
an adverse party.
A motion brought under MCR 2.612(C)(1)(c) must be brought within one year after judgment
was entered. MCR 2.612(C)(2). This Court has held that relief from a judgment will generally
only be granted in extraordinary circumstances and where the failure to grant the relief would
result in a substantial injustice.Gillispie v Bd of Tenant Affairs of the Detroit Housing Comm,
145 Mich App 424, 427-428; 377 NW2d 864 (1985). See alsoRose v Rose, 289 Mich App 45,
58; 795 NW2d 611 (2010) (recommending “[c]autious application of MCR 2.612(C)(1) in
divorce cases”).
A motion brought under MCR 2.612(C)(1)(c) must be brought within one year after judgment
was entered. MCR 2.612(C)(2). This Court has held that relief from a judgment will generally
only be granted in extraordinary circumstances and where the failure to grant the relief would
result in a substantial injustice. Gillispie v Bd of Tenant Affairs of the Detroit Housing Comm,
145 Mich App 424, 427-428; 377 NW2d 864 (1985). See also Rose v Rose, 289 Mich App 45,
58; 795 NW2d 611 (2010) (recommending “[c]autious application of MCR 2.612(C)(1) in
divorce cases”).
However, the court remanded the case for further factual development to determine whether defendant may be entitled to relief from the judgment on other grounds. The dispute involved a provision in the parties' consent judgment of divorce as to the payment of uninsured medical expenses for their children.
The elements of misrepresentation are:
(1) That [a party] made a material representation; (2) that it was false; (3) that
when he made it he knew that it was false, or made it recklessly, without any
knowledge of its truth and as a positive assertion; (4) that he made it with the
intention that it should be acted upon by [the other party]; (5) that [the other
party] acted in reliance upon it; and (6) that he thereby suffered injury. Each of
these facts must be proved with a reasonable degree of certainty, and all of them
must be found to exist; the absence of any one of them is fatal to recovery. [
TitanIns Co v Hyten , 491 Mich 547, 555; 817 NW2d 562 (2012) (internal citations
omitted)].
BANKRUPTCY
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re: Case No. 12-66018
KEEGAN LEE MALLOCH, pro se, Chapter 7
Debtor. Judge Thomas J. Tucker
/
ORDER DISMISSING CASE
On November 29, 2012, Debtor filed a voluntary petition for relief under Chapter 7,
commencing this case. On December 4, 2012, Debtor filed a “Certificate of Counseling”
(Docket # 14), which states that on December 3, 2012, Debtor received “an individual [or group] briefing that complied with the provisions of 11 U.S.C. §§ 109(h) and 111.”
Debtor is not eligible to be a debtor in this case under 11 U.S.C. § 109(h)(1). That
provision provides in relevant part, that
an individual may not be a debtor under this title unless such
individual has, during the 180-day period ending on the date of
filing the petition by such individual, received from an approved
nonprofit budget and credit counseling agency described in section
111(a) an individual or group briefing (including a briefing
conducted by telephone or on the Internet) that outlined the
opportunities for available credit counseling and assisted such
individual in performing a related budget analysis.
Debtor only received a credit counseling briefing four days after filing the bankruptcy petition.
With exceptions not applicable here, 11 U.S.C. § 109(h)(1) requires a debtor to obtain a credit
counseling briefing on or before the date of filing the bankruptcy petition.
Accordingly,
IT IS ORDERED that this case is dismissed.
.
Signed on December 18, 2012
-----
Can you change a divorce judgement if the other side misrepresents a fact.? Yes but it is not easy.
If you do not take an online credit counselingbefore can you fiie for chapter 7 Bankruptcy? No.
By Terry R. Bankert [trb] terry@attorneybankert.com
www.attorneybankert.com , https://www.facebook.com/attorneybankert, Flint Divorce & Bankruptcy 810-235-1970
DIVORCE
Issue:
Motion for relief from a FOC judgment; MCR 2.612(C)(1)(c); Rose v. Rose; "Misrepresentation";Titan Ins. Co. v. Hyten;
An action or conduct as a representation; M&D, Inc. v. W.B. McConkey; Requirement that a party's reliance on a misrepresentation be "reasonable";
Court: Michigan Court of Appeals (Unpublished) 12/18/12
No. 302389,Manistee Circuit Court,, LC No. 02-011013-DM
Case Name: Niell v. Schmoke
e-Journal Number: 53532
Judge(s): Per Curiam – Hoekstra, Borrello, and Boonstra
This Court reviews for an abuse of discretion a trial court’s decision to grant or deny
relief from judgment. Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 404; 651 NW2d
756 (2002). An abuse of discretion occurs when the trial court selects an outcome that falls
outside the range of principled outcomes.Ewald v Ewald, 292 Mich App 706, 725; 810 NW2d
396 (2011). Further, this Court reviews a trial court’s findings of fact for clear error.
McNamara v Horner , 249 Mich App 177, 182; 642 NW2d 385 (2002). The trial court’s findings of fact are clearly erroneous if, after review of the entire record, this Court is left with the definite and firm conviction that a mistake was made.Id. at 182-183.
Holding that the trial court erred in modifying the FOC judgment on the basis of an alleged misrepresentation by the plaintiff-ex-wife, the court vacated the trial court's order granting the defendant-ex-husband's motion under MCR 2.612(C)(1)(c) for relief from the judgment.
THE TRIAL COURT ERRED IN GRANTING DEFENDANT RELIEF FROM
JUDGMENT BASED ON MISREPRESENTATION
MCR 2.612(C) provides in relevant part:
(1) On motion and on just terms, the court may relieve a party or the legal
representative of a party from a final judgment, order, or proceeding on the
following grounds:
* * *
(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of
an adverse party.
A motion brought under MCR 2.612(C)(1)(c) must be brought within one year after judgment
was entered. MCR 2.612(C)(2). This Court has held that relief from a judgment will generally
only be granted in extraordinary circumstances and where the failure to grant the relief would
result in a substantial injustice.Gillispie v Bd of Tenant Affairs of the Detroit Housing Comm,
145 Mich App 424, 427-428; 377 NW2d 864 (1985). See alsoRose v Rose, 289 Mich App 45,
58; 795 NW2d 611 (2010) (recommending “[c]autious application of MCR 2.612(C)(1) in
divorce cases”).
A motion brought under MCR 2.612(C)(1)(c) must be brought within one year after judgment
was entered. MCR 2.612(C)(2). This Court has held that relief from a judgment will generally
only be granted in extraordinary circumstances and where the failure to grant the relief would
result in a substantial injustice. Gillispie v Bd of Tenant Affairs of the Detroit Housing Comm,
145 Mich App 424, 427-428; 377 NW2d 864 (1985). See also Rose v Rose, 289 Mich App 45,
58; 795 NW2d 611 (2010) (recommending “[c]autious application of MCR 2.612(C)(1) in
divorce cases”).
However, the court remanded the case for further factual development to determine whether defendant may be entitled to relief from the judgment on other grounds. The dispute involved a provision in the parties' consent judgment of divorce as to the payment of uninsured medical expenses for their children.
The elements of misrepresentation are:
(1) That [a party] made a material representation; (2) that it was false; (3) that
when he made it he knew that it was false, or made it recklessly, without any
knowledge of its truth and as a positive assertion; (4) that he made it with the
intention that it should be acted upon by [the other party]; (5) that [the other
party] acted in reliance upon it; and (6) that he thereby suffered injury. Each of
these facts must be proved with a reasonable degree of certainty, and all of them
must be found to exist; the absence of any one of them is fatal to recovery. [
TitanIns Co v Hyten , 491 Mich 547, 555; 817 NW2d 562 (2012) (internal citations
omitted)].
BANKRUPTCY
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re: Case No. 12-66018
KEEGAN LEE MALLOCH, pro se, Chapter 7
Debtor. Judge Thomas J. Tucker
/
ORDER DISMISSING CASE
On November 29, 2012, Debtor filed a voluntary petition for relief under Chapter 7,
commencing this case. On December 4, 2012, Debtor filed a “Certificate of Counseling”
(Docket # 14), which states that on December 3, 2012, Debtor received “an individual [or group] briefing that complied with the provisions of 11 U.S.C. §§ 109(h) and 111.”
Debtor is not eligible to be a debtor in this case under 11 U.S.C. § 109(h)(1). That
provision provides in relevant part, that
an individual may not be a debtor under this title unless such
individual has, during the 180-day period ending on the date of
filing the petition by such individual, received from an approved
nonprofit budget and credit counseling agency described in section
111(a) an individual or group briefing (including a briefing
conducted by telephone or on the Internet) that outlined the
opportunities for available credit counseling and assisted such
individual in performing a related budget analysis.
Debtor only received a credit counseling briefing four days after filing the bankruptcy petition.
With exceptions not applicable here, 11 U.S.C. § 109(h)(1) requires a debtor to obtain a credit
counseling briefing on or before the date of filing the bankruptcy petition.
Accordingly,
IT IS ORDERED that this case is dismissed.
.
Signed on December 18, 2012
