Fox v. Cnty. of Saginaw

Fox v. Cnty. of Saginaw

Opinion

OPINION AND ORDER APPROVING AND DIRECTING CLASS NOTICE FOR 2021 CLAIMANTS

This matter is before this Court on Plaintiff's proposed class notice and supplemental briefing. [*4]  ECF No. 259. For the reasons stated hereafter, Plaintiff's proposed class notice will be approved, and Plaintiff will be directed to serve class notice on class members whose property was sold in 2021 ("2021 claimants").

For decades, Michigan's General Property Tax Act (GPTA) allowed a "foreclosing governmental unit"—typically, the local county—to sell tax-delinquent property at auction and retain any surplus proceeds. See Mich. Comp. Laws § 211.78m (amended 2020). In Plaintiff's case and many others, this practice resulted in a windfall for the government. See ECF No. 1 at PageID.4-5 (claiming that Defendant Gratiot County retained $21,908.77 in surplus proceeds from selling Plaintiff's property). In June 2019, Plaintiff brought this action under 42 U.S.C. § 1983 to declare the practice unconstitutional and to recover surplus proceeds from 26 counties. Id.

Shortly after class certification, Defendants filed motions to dismiss based on sovereign immunity. See, e.g., ECF No. 120 at PageID.2108 (claiming that "Defendants did only what State law required of them, and . . . [therefore] act[ed] as an arm of the State" (internal quotations omitted)). Those motions were denied in relevant part, and Defendants appealed. To preserve [*5]  their asserted immunity on appeal, the case was stayed. Fox v. Cnty. of Saginaw ex rel. Bd. of Comm'rs, No. 19-CV-11887, 2021 U.S. Dist. LEXIS 43680, 2021 WL 872089, at *1 (E.D. Mich. Mar. 9, 2021).

A few months before the case was stayed, Michigan enacted Public Act No. 256 ("PA 256"), amending the GPTA and establishing a purportedly exclusive process for compensating former property owners. See Mich. Comp. Laws § 211.78t(11). Although some have used PA 256 to their advantage, see Asset Recovery's Show-Cause Br., ECF No. 184 at PageID.4895 (noting that one claimant recovered $110,308.30), not all have been pleased with the new system. Since its enactment, Plaintiff and others have criticized PA 256 as offering an unfair and inadequate recovery, focusing on its two-year statute of limitations and nonretroactivity provision. See Pl.'s Emergency Mot., ECF No. 228 at PageID.6146. Some have even challenged the statute's legality under Michigan law. See Hathon v. State, No. 356501 (Mich. Ct. App. filed Mar. 8, 2021).

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