Beruflich Dokumente
Kultur Dokumente
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Table of Contents
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Table of Authorities
Cases
Cork v Applebee’s of Michigan, Inc, 239 Mich App 311; 608 NW2d 62 (2000).........................16
Department of Natural Resources v Holloway Construction Co, 191 Mich App 704, 478 NW2d
677 (1991)..................................................................................................................................17
Faulkner v Flowers, 206 Mich App 562; 522 NW2d 700 (1994).................................................17
McCleese v Todd, 232 Mich App 623, 627; 591 NW2d 375 (1998).............................................16
PHH Mortgage Corporation v. Cude, case number 09-02-2565 LT in the 23rd District Court of
Michigan....................................................................................................................................17
Walker v Johnson & Johnson Vision Products, Inc, 217 Mich App 705; 552 NW2d 679 (1996)17
Statutes
42 U.S.C. §1983...............................................................................................................................6
Rules
MCR 2.116(C)(4)..........................................................................................................................16
MCR 2.116(D)(3)..........................................................................................................................16
MCR 2.612..............................................................................................................................12, 15
MCR 2.612(C)(2)..........................................................................................................................12
MCR 4.201(B)(1)(e)......................................................................................................................17
MRPC 1.6......................................................................................................................................11
MRPC Rule 3.3..............................................................................................................................10
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Response to Appellee’s Statement of Facts
Although the law firm of Trott & Trott P.C. represents the Appellee, National City Bank,
heretofore, the firm’s individual attorney that handled this case, Gregory MacKay, P62030, is no
longer with the firm. The Michigan Bar lists that Gregory MacKay is now in a self-named
professional limited liability corporation at a post office box in Northville, Michigan. (A copy of
the Michigan Bar Directory listing for Gregory MacKay is annexed hereto as Exhibit A.)
It is unclear when Gregory MacKay voluntarily or involuntarily left Trott & Trott.
Appellants were not notified of his departure prior to the time their brief was served upon
Appellees. However, Appellants have personal knowledge of Gregory MacKay still working for
the firm as of January 4, 2010 because Appellant Anita Belle personally served Appellants’
motion that contained the facts and precedents regarding the invalid sheriff deed and briefly met
with Gregory MacKay at the Trott & Trott offices in Farmington in order to hand-deliver the
motion directly to him. This point about service of the motion is relevant because Appellee
failed to timely respond to Appellant’s January 4, 2010 Motion for Relief from Judgment on the
basis of an invalid sheriff deed, thus rendering the facts of the invalid sheriff deed undisputed in
the lower court. (A copy of the January 4, 2010 Motion, containing the Certificate of Service
upon Gregory MacKay, is annexed hereto as Exhibit B. For purposes of brevity, this motion
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B. Mortgage, Foreclosure, and Litigation History
However, the new Trott & Trott attorney’s recitation of so-called facts neglects the relevant
Along with other allegations, the Appellants raised mortgage fraud, predatory lending,
and noncompliance with the federal RESPA and TILA laws in their June 20, 2007 federal
civil complaint. There was no motion for stay at the filing of the original federal complaint. The
sheriff sale, published to take place on June 20, 2007, was adjourned until August 29, 2007. No
evidence was submitted by the Appellee as an exhibit to the lower court that Appellee adjourned
the June 20, 2007 sheriff sale from week to week until it was conducted more than two months
later on August 29, 2007. (The transcript of the March 23, 2009 proceeding is annexed hereto as
Exhibit C. Of note is that no exhibits were marked or received in evidence [page 2 of the
transcript.] All that was proffered as proof of week-to-week adjournments of the sheriff sale was
the testimony of Attorney Gregory MacKay on page 12 of the transcript.) Also of note is that, on
February 10, 2009, Appellants moved for sanctions against Attorney Gregory MacKay for
making misrepresentations to the lower court. On page 28-29 of the March 23, 2009 transcript,
Appellants’ counsel argued that the Appellee proffered no documentation of the week to week
adjournments of the sheriff sale and that the Appellants were prejudiced by not being informed
of the week to week adjournments. Nevertheless, along with Appellants’ motion to dismiss, the
Appellee also neglects to mention that the 2007 federal civil case was dismissed without
prejudice on March 31, 2008, more than a month after the expiration of the six-month
redemption period. Appellants immediately re-filed the federal case on April 4, 2008. Appellee
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moved to dismiss the re-filed federal case on the grounds of res judicata. Noting that the 2007
federal case was dismissed without prejudice, Federal Judge Julian A. Cook handily denied
Appellee’s Motion to Dismiss. The 2008 federal civil case, with a motion for an amended
complaint that alleges 42 U.S.C. §1983 violations, remains pending to this day. The Appellants
represent themselves in the federal case. The crux of the proposed amended complaint in the
federal case is that, by virtue of invalid sheriff deeds issued in 2007 and 2002, Appellant Thelma
Belle remains the true owner of the disputed property. Consequently, those purporting to hold
title to the disputed property since 2002 did so with a cloud on their title. Thus, when Appellant
Thelma Belle allegedly repurchased the property in 2004, she purchased title from a seller
who did not have clear title. Because the 2004 transaction is insured by title insurance, the
federal case alleges that any monies owed pursuant to a mortgage should be collected from
the title insurer for failure to convey clear title. The federal case further alleges that the
invalid 2002 sheriff sale was only recently discovered due to fraudulent concealment. Of
note is that, if the federal case is somehow dismissed without prejudice, Appellants may still
have state circuit court claims regarding quiet title. Such is why Appellants filed a quiet title
action in 2009 before this court in case number 09-003144-CH, yet such action was dismissed
without prejudice on May 20, 2009 for non-service to permit the federal case to proceed.
Appellee filed its complaint in the 36th District Court for termination of tenancy on April
• “The owner of the property, described in the attached Sheriff’s Deed, recorded on
September 11, 2007 in Liber 46649 on Page 1024 in Wayne County Records is
the Plaintiff as referenced above.”
• The Defendants/Appellants “are wrongfully holding over after the expiration of
the redemption period following a mortgage foreclosure sale” and
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• “There is no other pending or resolved civil action arising out of the same
transaction or occurrence alleged in this complaint.”
(A copy of Appellee’s complaint is annexed hereto as Exhibit D.)
Appellee’s statement regarding being the owner of the property by virtue of the sheriff
deed is untrue because the sheriff deed is invalid. Furthermore, the Appellee’s statement
regarding there being no other civil action pending is untrue given that the federal case was re-
filed on April 4, 2008 and Appellee’s complaint was filed on April 11, 2008. At the April 22,
2008 hearing, Appellants informed the lower court of the federal case and requested additional
time with which to pursue a stay from the federal court. The lower court granted an adjournment
and Appellants made an emergency motion for a stay to the federal court. When that stay was
denied, Appellants pursued an interlocutory appeal to the Sixth Circuit Court of Appeals.
Meanwhile, Appellants also filed for Chapter 13 bankruptcy, thereby obtaining an automatic
federal stay in time for the next hearing in the 36th District Court. The Appellants then permitted
the federal interlocutory appeal to be dismissed. The lower state court proceedings were
administratively closed during the pendency of the bankruptcy. Contrary to Appellee’s recitation
of the facts, Appellant Thelma Belle, age 82 years, was unrepresented during the bankruptcies
and the corresponding adversarial hearing because, at that time, her current counsel was not a
The case at bar was re-opened in 2009 and has since undergone all the makings of a
courtroom drama, replete with motions to disqualify the lower court judge for bias, sabotage of
the transcripts, and a 9-month delay in correcting an erroneous court order. Nevertheless, the
fact remains that when the Appellants moved for relief from the Judgment of Possession on
January 4, 2010, presenting facts and precedent demonstrating the invalidity of Appellee’s
sheriff deed, the Appellee did not respond to this motion in the lower court. Hence, the facts
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establishing the invalidity of the sheriff deed at issue in this appeal are undisputed. Given the
fact that the sheriff deed is invalid, it follows that the Judgment of Possession based upon the
Appellee.
The trial court did not properly enter a Judgment of Possession and erred in denying
Appellants’ motion to dismiss, because Appellee’s counsel made misrepresentations both in open
court and in various court documents. The misrepresentations that the Appellants were aware of,
prior to the March 23, 2009 Judgment of Possession, were listed in Appellants’ motions for
a. Appellee’s counsel testified that the sheriff sale was adjourned week to week, but
could not proffer documentary evidence of adjourning the sheriff sale week to
week.
b. Appellee’s counsel falsely alleged that Appellants’ 2007 federal case was
c. Appellee’s counsel verbally informed the court that there was no settlement
note is that the lower court adjourned the March 10, 2009 hearing in order to
facilitate settlement negotiation. The reasons for the adjournment are on the
record in the March 10, 2009 transcript. However, despite a timely, written
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settlement agreement (offer and acceptance), Appellee’s attorney (at the March
23, 2009 hearing) unilaterally attempted to change, and misrepresented, the terms
settlement did not exist. The lower court ignored the written agreement that
• Appellee falsely claims that the corporate assignment was valid, even though the
Exhibit A in its brief, makes no mention of (and grants no power to) MERS as a
nominee.
• Appellee falsely claims title to the disputed property by virtue of a sheriff deed,
even though the auctioneer signing the sheriff deed is not a deputy sheriff or a
If Appellee insists that the Appellants raise this torrid history, rather than “abandon these
arguments on their appeal”, as Appellee stated, then Appellants could move to supplement their
brief. It should be noted, however, that because Appellees have made previous
misrepresentations to the court, Appellants should not be prejudiced for discovering after March
23, 2009 that the Appellee also misrepresented that the sheriff deed gives the Appellee title to the
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disputed property: The Appellee’s law firm prepared the sheriff deed and the affidavit of the
person conducting the sheriff sale, an affidavit to which the auctioneer swore he was a deputy
sheriff. (A copy of the sheriff deed is annexed hereto as Exhibit E.) The affidavit which the
Appellee’s law firm prepared contained at least one glaring misrepresentation, namely, the false
representation that the auctioneer was a deputy sheriff. The truth, as evidenced by the Wayne
County Clerk’s appointment of the auctioneer, is that the auctioneer was not properly appointed
as a special deputy, and indeed, had no appointment at all on the date of the sheriff sale and
deed execution. (A copy of the Wayne County Clerk’s appointment for the auctioneer, Sterling
Harrison, is annexed hereto as Exhibit F.) The Appellee did not disclose this relevant
information to the trial court or the Appellant, hence the Appellee did not thoroughly brief the
trial court regarding its case for possession but rather engaged in fraud upon the court and
withheld relevant information in order to obtain its Judgment of Possession. Indeed, in its
Appellee brief, the party states “Appellee will not address the merits of those [sheriff deed]
arguments without further direction from this Court.” Thus, the Appellee continues to evade the
issue of whether its sheriff deed is valid or whether its attorneys misrepresented that the
auctioneer was a deputy sheriff. It is worthy to note that Appellee’s fraud upon the court
commenced with the summons and complaint initiating the district court summary proceeding
for possession, and continues to this day before this appellate court. The Appellee’s refusal to
address the dispositive issues before the court in this appeal are at Appellee’s discretion and
peril.
According to the Michigan Rules of Professional Conduct, MRPC Rule 3.3, Appellee’s
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(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid
assisting a criminal or fraudulent act by the client;
(3) fail to disclose to a tribunal controlling legal authority in the jurisdiction known to the
lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel;
or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material
evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply
even if compliance requires disclosure of information otherwise protected by Rule 1.6.
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts that are
known to the lawyer and that will enable the tribunal to make an informed decision, whether or
not the facts are adverse.
As stated above, an attorney should not knowingly make a false statement of material fact
or law to a tribunal even if compliance with this ethical rule requires disclosure of confidential
information otherwise protected by Rule 1.6 of the Michigan Rules of Professional Conduct,
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(4) the intention of a client to commit a crime and the information necessary to prevent the
crime; and
(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or
the lawyer's employees or associates against an accusation of wrongful conduct.
(d) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose
services are utilized by the lawyer from disclosing or using confidences or secrets of a client,
except that a lawyer may reveal the information allowed by paragraph (c) through an employee.
Hence, Appellants argue that the Appellee’s law firm violated and continues to violate its
duties pursuant to the Michigan Rules of Professional Conduct. As a result of this violation,
Appellee is committing a continuing fraud upon this Appellate Court by advocating that the
Appellee has an ownership interest in the disputed property despite the invalidity of the sheriff
deed and the Appellee law firm’s misrepresentations regarding the auctioneer’s status as a
deputy sheriff.
MCR 2.612(C)(2) permits motions for relief from judgment based upon fraud and
misrepresentation to be made within a year from the date of the judgment. MCR 2.612 states, as
follows:
The Judgment of Possession was entered on March 23, 2009 and the Appellants made
their Motion for Relief of Judgment, regarding the invalid sheriff deed, on January 4, 2010.
Clearly, Appellants’ motion was timely and before the March 23, 2010 deadline. One should
also note that, under MCR 2.612(C)(1)(d), the invalidity of the sheriff sale and deed render the
Judgment for Possession void; and as such, Appellant’s motion to set aside that Judgment is not
limited to one year after entry. Regardless of the date that Appellants raised the issue regarding
the misrepresentations contained in the sheriff deed, it remains true that Appellee’s
misrepresentations regarding its ownership of the disputed property, by virtue of the invalid
sheriff deed, occurred before the March 23, 2009 date for the Judgment of Possession. It
therefore follows that a Judgment of Possession in favor of the Appellee, based upon
misrepresentation and fraud upon the court by the Appellee, was not properly entered by the
district court, Appellee was placed on notice of this misrepresentation; thus, their continuing
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misrepresentation of the auctioneer’s status became a knowing misrepresentation by Appellee’s
counsel and constitutes a continuing violation of the Michigan Rules of Professional Conduct,
B. The Circuit Court Lacks Jurisdiction to Review the February 2010 Order and
Opinion.
The Appellee offers no caselaw, statute, or court rule supporting its position that the
Circuit Court is deprived of jurisdiction. Moreover, the Appellee is barred from raising issues
defending the validity of the sheriff deed because the Appellee failed to raise such arguments
before the lower court. Appellee challenges that the Appellants’ appeal only addresses issues
raised in Appellants’ January 4, 2010 Motion for Relief from Judgment and that such issues
cannot be heard on a Claim of Appeal filed on April 1, 2009. Appellee’s argument on this point
is in error, because this appellate court has jurisdiction to hear this appeal, on the basis of the fact
that this appeal addresses the lower court’s lack of subject matter jurisdiction.
January 4, 2010 is the date that the Appellants filed their motion in district court based
upon their discovery that the sheriff deed had no validity; and, that Appellee’s law firm crafted
an affidavit that contained the misrepresentation that the auctioneer was a deputy sheriff when in
truth the auctioneer was not a deputy sheriff or a properly appointed special deputy sheriff.
Perhaps this is why Appellee’s counsel failed to respond to the motion in the lower court or in its
Appellee brief. Appellee’s law firm continues to neglect its ethical duty to disclose to this court
relevant information regarding the material fact as to whether its claim of title, by virtue of the
sheriff deed, is indeed valid. Appellee argues that Appellants and their counsel have
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every court in which they have litigated. Appellants can likewise argue that Appellees have
demonstrated unethical behavior and fraud upon every court in which they have litigated, due to
the fact that Appellee misrepresented that the auctioneer was a deputy sheriff, and that such
The February 26, 2010 Order reinstated this appeal pursuant to nine months of
Appellants’ persistent, post-judgment motions. Appellee did not object, move for
reconsideration, or appeal the February 26, 2010 Order. Given that the February 26, 2010 Order
reinstated the appeal, it would be a waste of Appellant’s limited financial resources and against
the interests of judicial economy to require that Appellants file an additional Claim of Appeal
rather than consolidate all issues into a single appeal. Appellee offers no caselaw supporting its
position that the appeal must be dismissed for failure to address issues that occurred prior to the
April 1, 2009 Claim of Appeal. Without reference to any legal authority, Appellee proposes the
confusing scenario that indigent Appellant undergo the hardship of simultaneously paying
escrow and paying counsel and drafting a brief addressing issues occurring prior to April 1,
2009, while at the same time filing and paying a second appeal fee and having a second escrow
imposed and paying additional attorney fees to write a second brief for issues occurring up to
February 26, 2010 in order for Appellee to write two responding briefs and the appellate court to
issue two different decisions which may be further appealed. The February 26, 2009 Order of
the district court granted reinstatement of this appeal, which permits consolidation of all issues
Regarding grounds for relief from judgment, MCR 2.612(C)(3) states: “This subrule
does not limit the power of a court to entertain an independent action to relieve a party from a
judgment, order, or proceeding; to grant relief to a defendant not actually personally notified as
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provided in subrule (B); or to set aside a judgment for fraud on the court.” [Emphasis
added.] Appellants therefore argue that this court rule permits any court, including an appellate
court, to set aside a judgment for fraud upon the court in order to achieve substantial justice.
Thankfully, this appellate court need not navigate the intricacies and eccentricities of
Appellee’s specious arguments regarding pre and post April 1, 2009 issues because it is clear and
undisputed law in this state that the fact of lack of subject matter jurisdiction may be raised at
any time, [MCR 2.116(C)(4); MCR 2.116(D)(3)]; and, indeed, lack of subject matter
jurisdiction may be raised for the first time on appeal. A motion under MCR 2.116(C)(4),
alleging that the court lacks subject matter jurisdiction, raises an issue of law. The issue of
subject matter jurisdiction may be raised at any time, even for the first time on appeal. McCleese
v Todd, 232 Mich App 623, 627; 591 NW2d 375 (1998) (“Lack of subject matter jurisdiction
may be raised at any time.”); Phinney v Perlmutter, 222 Mich App 513, 521; 564 NW2d 532
(1997) (“Although the jurisdictional issue here was never resolved by the trial court, a challenge
to subject-matter jurisdiction may be raised at any time, even for the first time on appeal.”).
When a court lacks jurisdiction over the subject matter, any action it takes, other than to
dismiss the case, is absolutely void. McCleese, 232 Mich App at 628; 591 NW2d at 377. The
trial court’s determination will be reviewed de novo by the appellate court to determine whether
the pleadings demonstrate that the defendant was entitled to judgment as a matter of law, or
whether affidavits and other proofs show that there was no genuine issue of material fact. See
Cork v Applebee’s of Michigan, Inc, 239 Mich App 311; 608 NW2d 62 (2000) (“When
reviewing a motion for summary disposition under MCR 2.116(C)(4), we must determine
whether the pleadings demonstrate that the defendant was entitled to judgment as a matter of law
or whether the affidavits and other proofs show that there was no genuine issue of material
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fact.”); Walker v Johnson & Johnson Vision Products, Inc, 217 Mich App 705; 552 NW2d 679
(1996); Faulkner v Flowers, 206 Mich App 562; 522 NW2d 700 (1994); Department of Natural
Resources v Holloway Construction Co, 191 Mich App 704, 478 NW2d 677 (1991).
As stated in the Appellants’ brief, the invalidity of the sheriff deed establishes that the
district court lacked subject matter jurisdiction to address Appellee’s complaint for termination
of tenancy and/or to enter a Judgment for Possession. Because the lack of subject matter
jurisdiction can be raised at any time, then this appellate court has jurisdiction to address and
determine this appeal from the district court’s Possession Judgment. The Appellants’ brief
referenced Cude, PHH Mortgage Corporation v. Cude, case number 09-02-2565 LT in the 23rd
District Court of Michigan, a case in which the district court dismissed a similar complaint to
terminate tenancy after sheriff sale and deed, because of the invalidity of the sheriff deed. The
Cude court found that the district court did not have subject matter jurisdiction to resolve
genuine issues of material fact in order to quiet title. MCR 4.201(B)(1)(e) provides that a
complaint for termination of tenancy in district court summary proceedings must show the
plaintiff's right to possession and indicate why the defendant's possession is improper or
unauthorized. The invalid sheriff deed clearly means that the plaintiff does not have a right to
possession of Appellants’ home. In accordance with the court’s holding in Cude, and pursuant to
MCR 4.201(B)(1)(e), in the case at bar, Appellee’s Judgment of Possession is void because the
district court did not have subject matter jurisdiction, as a result of the invalid sheriff sale and
deed.
Appellee’s request for sanctions is outrageous given that Appellee continues to advocate
that Appellants’ eviction is inevitable despite undisputed evidence that Appellee’s sheriff deed is
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invalid and Appellee’s ethical duty to disclose relevant material facts to the court. Accordingly,
Appellants request that this Court deny Appellee’s sanctions. Appellants also request that this
Court grant to Appellants sanctions for actual damages, reasonable attorney’s fees, and punitive
damages for costs associated with defending against Appellee’s claim for possession in reliance
Conclusion
Appellants argue that Appellee’s counsel has a continuing, ethical duty to truthfully
disclose to every court any relevant information or material facts regarding the case at bar.
Appellants contend that Appellees’s counsel prepared an affidavit for the sheriff sale auctioneer
that contained a misrepresentation about the auctioneer being a deputy sheriff. The Appellants
discovered the misrepresentation after a Judgment of Possession was rendered. Appellee argues
that this Court does not have jurisdiction to hear an appeal regarding Appellee’s
misrepresentation and Appellee’s invalid sheriff deed and seeks the Court’s dismissal of the
appeal so that Appellee can exercise its possession rights, obtained by fraud upon the court, and
evict the Appellants from the property that still, rightfully, belongs to the Appellants.
Appellants contend that an invalid sheriff deed deprives the lower court of subject matter
jurisdiction and thus renders the Possession Judgment void. Because the lack of subject matter
jurisdiction in the lower court can be raised at any time, including for the first time on appeal,
Appellants urge this Appellate Court to uphold Michigan law regarding the statutory authority of
sheriff sale auctioneers, and set aside the invalid sheriff sale and the void Possession Judgment.
Appellants argue that any other ruling would lead to the unjust result of awarding property to a
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Dated June 18, 2010 Respectfully submitted,
_________________________________
Arthur C. Kirkland, Jr. (P27551)
Attorney for Appellants
Thelma Belle & Anita Belle
P.O. Box 35676
Detroit, MI 48235
Phone: (313) 909-5895
Email: arthurckirkland@gmail.com
Proof of Service
I certify that a copy of the foregoing Appellants’ Reply Brief with 5 Exhibits was served
on opposing counsel, Michelle K. Clark of Trott & Trott P.C., by hand-delivery to 31440
Northwestern Hwy, Suite 200, Farmington Hills, MI 48334 on June 18, 2010.
Respectfully submitted,
_______________________________
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Exhibits
Exhibit A: A copy of the Michigan Bar Attorney Directory listing for Gregory MacKay
Exhibit B: A copy of the January 4, 2010 Motion, containing the Certificate of Service
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