Recently we posted a case involving bail bond agencies
(Calvert Bail Bond Agency, LLC v County of St. Clair, COA No. 324824) where the
bond agency recovered its funds under MCL600.4835, when the defendant was
returned to the court. The following case also orders the return of the funds this
time due to the court’s failure to give proper notice.
The Michigan Court of Appeals held In re Forfeiture of Bail Bond, No. 328784, a published case, that a
court cannot require a surety to pay the surety bond where it has failed to
give the surety immediate notice of the bond forfeiture.
Facts: Appellant Leo’s
Bail Bond Agency acting as agent for Roche Surety and Casualty Co., became
surety on a $10,000 bond for defendant Antoine Stanford. Stanford, however,
chose to skip his pretrial hearing on January 14, 2015. Since the dates in this
case are important, we will list the events chronologically:
·
Jan. 20---circuit court revoked Stanford’s
release and forfeited the bond,
·
Jan. 21---date on certificate of mailing on
notice of forfeiture to Leo’s via first class mail,
·
Jan. 22---postmark on notice received by Leo’s
·
Jan. 23---date that Leo’s received notice of
Stanford’s default and entry of order forfeiting the bond.
·
Feb. 20---Stanford failed to appear at the show
cause hearing, and, finally,
·
Feb. 24---Circuit court entered a judgment
against the Leo’s for $10,000 plus a 20% late fee.
The argument:
Appellant Leo’s
moved to vacate the judgment because, since it hadn’t received notice within
seven days of Stanford’s default as required by MCL 765.28(1), notice was
untimely. The Circuit Court
disagreed, stating that, since the date on the certificate of mailing was Jan
21, notice was timely per MCR 3.604(I)(2). The court also concluded that there
was a conflict between the statute and the court rule as to procedural
requirements and the court rule was controlling.
Michigan Court of
Appeals Decision:
MCL 765.28(1) and MCR 3.604(I)(2) do not conflict.
The statute (MCL 765.28 (1)) is the procedure for providing a surety notice of
default. The court rule (MCR 3.604(I)(2), however, is the procedure to provide
notice of hearing on a motion for a judgment. “These are two separate and
distinct events. A default must be entered prior to a hearing to enter judgment
on the default.”
Notice of default was
defective:
According to the statute, a surety must receive immediate
notice, “not to exceed seven days after the date of the failure to appear.”
Notice, per the postmark, was mailed on the eighth day. And, according to the
statute notice “shall be served upon
each surety in person or left at the surety’s last known business
address.” Thus, mailing the notice was not proper service.
But, notice of the hearing on
the motion to enter judgment against Leo’s was timely under the court rule.
However, although Leo’s had proper notice of the motion to enter the judgment
against it doesn’t change the fact the he didn’t “receive proper notice of the
default itself.”
The Circuit Court judgment
against appellant Leo’s was reversed and the matter remanded for further
proceedings consistent with the opinion.
Labels: appeals, bond forfeiture, Court of Appeals, defective notice of default, immediate notice, MCL 765.28, MCL 765.28(1), MCR 3.604, Michigan Appeals, surety bond
