TATE OF MICHIGAN

IN THE 9th CIRCUIT COURT FOR THE COUNTY OF KALAMAZOO

*****

WILLIAM CHRISTMAN, for himself and all

those similarly situated,

Plaintiff, Case No. 20- -CZ

-vs- HON.

KALAMAZOO COUNTY, a Governmental **CLASS ACTION**

Unit, and MARY BALKEMA, as Treasurer of
Kalamazoo County,

Defendants.

VISSER AND ASSOCIATES, PLLC

Donald R. Visser (P27961)
Donovan J. Visser (P70847)
Brittany Dzuris (P81438)
Attorneys for Plaintiff
2480 - 44th Street, S.E., Suite 150
Kentwood, MI 49512
(616) 531-9860
______________________________________________________________________________

COMPLAINT

COMES NOW Plaintiff, WILLIAM CHRISTMAN, individually and on behalf of a class

of similarly situated individuals and entities, by and through counsel, Visser and Associates,

PLLC, and for Plaintiff’s causes of action against the Defendants state as follows:

PARTIES

1. Plaintiff is presently a resident of Allegan County, Michigan.

2. Defendant Kalamazoo County (“Defendant County”) is a governmental unit in the

State of Michigan governing the political body known as Kalamazoo County (“County”).

3. Mary Balkema (“Treasurer”) is the Treasurer of Kalamazoo County.

 4. Mary Balkema was the Treasurer of the County at the time relevant to the facts

involved in this lawsuit.

5. Treasurer is the Foreclosing Governmental Unit of the County pursuant to the

General Property Tax Act, MCL § 211.78(8).

6. Prior to the tax foreclosure referenced below, Plaintiff was the owner of real

property in Kalamazoo County. Plaintiff’s property is set out on Exhibit 1 by common address

and Parcel Number (“Subject Property”).

7. Each class member similarly owned real property in the County.

JURISDICTION

8. This is a civil action seeking, amongst other relief requested, unpaid “just

compensation” for violations of Michigan’s Constitution and of the Fifth and Fourteenth

Amendments to the United States Constitution (hereinafter “Fifth Amendment” and “Fourteenth

Amendment” respectively).

9. Plaintiff seeks damages in excess of $25,000.00 as well as equitable relief.

10. This Court has jurisdiction of this dispute pursuant to MCL 600.601(1) MCL

600.605, as well as MCL 600.151.

11. Venue is appropriate in this County since the property is physically located in this

County and the Defendants are either a municipal unit of government located in the County or an

officer of said municipal unit.

THE TAX FORECLOSURE

12. Defendants caused Plaintiff’s interest in the Subject Properties, and class members’

interest in their properties, to be foreclosed pursuant to the General Property Tax Act (“GPTA”)

as a result of delinquent taxes unpaid assessments, fees, penalties and/or interest (the real

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properties owned by Plaintiff and class members are hereinafter referred to as “Foreclosed

Properties”).

13. At the time of the tax foreclosure, Plaintiff and class members owed some amount

for delinquent taxes and/or assessments, interest, penalties, and fees reasonably related to the

foreclosure and sale of the Foreclosed Properties (“Owed Amount”).

14. Following the tax foreclosure, the Treasurer, on behalf of Defendant County,

directed, implemented, or gave instructions that the Foreclosed Properties be sold at auction.

15. The Treasurer, on behalf of Defendant County, sold the Foreclosed Properties.

16. Upon information and belief, the Treasurer, on behalf of Defendant County,

received proceeds exceeding the Owed Amount as a result of the sale at auction.

17. Upon information and belief, the net amount received by the Treasurer on behalf of

Defendant County at the auction sale exceeded the Owed Amount by the amounts listed on Exhibit

1 (“Surplus Proceeds”).

18. Similarly, the amount received by the Treasurer on behalf of Defendant County

when it sold class members’ properties, exceeded the Owed Amount for each class member’s

property creating Surplus Proceeds as to each class member’s property.

19. Defendants retained the Surplus Proceeds.

20. Upon information and belief, the Surplus Proceeds were deposited into the

Defendant County’s General Fund account.

21. Upon information and belief, Defendants have derived investment income from the

retention of the Surplus Proceeds.

22. Plaintiff and class members maintain a common law right to the Surplus Proceeds.

23. Plaintiff and class members have a vested right and interest in the Surplus Proceeds.

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 24. Pursuant to the decision of the Michigan Supreme Court in Rafaeli LLC v Oakland

County, __Mich __, __NW2d__ (2020) (“Rafaeli”), Plaintiff and class members are entitled to the

Surplus Proceeds.

25. Defendants’ retention of Plaintiff’s and class members’ Surplus Proceeds

constitutes a taking under Article 10, § 2 of Michigan’s 1963 Constitution as well as the United

States Constitution.

26. Defendants’ retention of earnings or interest on the Surplus Proceeds constitutes

another taking Article 10, § 2 of Michigan’s 1963 Constitution as well as the United States

Constitution.

27. The Surplus Proceeds are property owned by Plaintiff and class members.

28. Defendants have not afforded Plaintiff and class members any mechanism or

process to seek or obtain their Surplus Proceeds.

29. Plaintiff and class members are entitled to immediate turnover of the Surplus

Proceeds, together with the earnings or interest earned on the Surplus Proceeds by the County.

30. Plaintiff demanded turnover of the Surplus Proceeds as evidenced by the attached

Exhibit 2.

31. Despite demands for same, Defendants have refused to turn over Plaintiff’s Surplus

Proceeds and interest earned.

32. After the issuance of the Rafaeli decision by the Michigan Supreme Court,

Defendants’ retention of Plaintiff’s and class members’ property is not an activity that is expressly

or impliedly mandated or authorized by the Federal or State Constitution, statute, local charter or

ordinance, or other law.

33. Defendants’ retention of Plaintiff’s and class members’ Surplus Proceeds and the

interest earned thereupon is not an action or activity undertaken by Defendants while engaged in

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the exercise of discharge of a governmental function. Rather, the retention of Plaintiff’s and class

members’ property is contrary to the mandates of common law and the Michigan and Federal

Constitutions.

34. Defendants’ retention of Plaintiff’s and class members’ Surplus Proceeds and the

interest earned thereupon after the Defendants became aware of the Rafaeli decision, constitutes

either intentional misconduct or gross negligence which is the proximate cause of Plaintiff’s and

class members’ damage.

35. After issuance of the Rafaeli decision, Defendants’ retention of Plaintiff’s and class

members’ property was clearly not within the scope of activity authorized by the State or Federal

Constitution, statute, local charter charger or ordinance, or other law.

36. Following issuance of the Rafaeli decision, Defendants’ retention of Plaintiff’s and

class members’ property is outside of the scope of governmental immunity.

37. Defendants’ retention of Plaintiff’s and class members’ Surplus Proceeds is done

so that Defendant County can use the Surplus Proceeds for its own use and for the purpose of

earning interest or investment income.

38. The earning of interest or investment income is an activity which is conducted

primarily for the purpose of producing a pecuniary profit for Defendant County.

39. The foreclosure of the Foreclosed Properties was a voluntary activity undertaken

by the Defendants as clarified in MCL § 211.78(6).

40. Defendants’ actions, as described in this Complaint, constitute a voluntary practice,

policy, or custom of the Defendants.

41. Defendants’ actions, as described herein, were undertaken pursuant to an official

County policy thereby permitting Plaintiff’s and class members’ claims for liability against

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governmental units and others claiming immunity as set forth in Monell v New York City

Department of Social Services, 436 US 658, 98 S Ct 2018 (1978) and its progeny.

42. Defendants’ actions after the issuance of the Rafaeli decision were undertaken in

willful and wonton disregard of Plaintiff’s and class members’ property rights.

CLASS ALLEGATIONS

43. This action is brought by Plaintiff individually and on behalf of the owners/former

owners of real property in Kalamazoo County who had their real property foreclosed by the County

or County Treasurer for unpaid real property taxes, penalties, interest or assessments which

resulted in the denial of due process, unconstitutional taking of their Surplus Proceeds, or the unjust

enrichment of the County, but excluding any person or entity that has filed their own post

foreclosure action in state or federal court.

44. The proposed class consist of all owners/former owners of real property in the

County whose property was tax foreclosed by the County during the relevant time period and

whose property sold for more than the total tax delinquency as defined in Rafaeli v County of

Oakland decision of the Michigan Supreme Court on July 17, 2020 and to whom the County has

not refunded the Surplus Proceeds. Hereinafter the proposed class with be referred to as the

“Class”.

45. Plaintiff’s claims are typical of, and common to, those raised by the Class the

Plaintiff seeks to represent, including the following:

a. Whether each class member’s property sold for more than the Owed

Amount;

b. Whether the Defendants took each class member’s Surplus Proceeds;

c. Whether the Surplus Proceeds were retained by for the benefit of Defendant

County;

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 d. Whether the Surplus Proceeds earned interest or other pecuniary return for

the benefit of Defendant County;

e. Whether the Defendants retained the interest or other return earned on the

Surplus Proceeds for the benefit of the Defendants;

f. Whether the Defendants failed to turn over the Surplus Proceeds to the class

members after the Supreme Court issued its decision in Rafaeli;

g. Whether the Defendants have been unjustly enriched;

h. Whether the Defendants converted the Surplus Proceeds;

i. Whether Defendants converted the Surplus Proceeds to their own use; and

j. Whether the Defendants have been exercising discretion to administer MCL

211.78.

46. Plaintiff’s claims raise questions of law that are typical of, and common to, those

raised by the Class the Plaintiff seeks to represent, including the following:

a. Whether the Michigan Supreme Court’s decision in Rafaeli confirms a

common law right to the Surplus Proceeds;

b. Whether the Michigan Supreme Court’s decision in Rafaeli that MCL §

211.78m cannot prohibit the return of Surplus Proceeds to the class

members is binding on the Defendants in this matter;

c. Whether the Defendants committed an unconstitutional taking by failing to

turn over to the class members the Surplus Proceeds;

d. Whether the Defendants committed an unconstitutional taking by failing to

turn over to the class members all income earned by retention of the Surplus

Proceeds in violation of either Article X, Section 2 of the Michigan

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 Constitution or the Fifth and Fourteenth Amendments to the Unites States

Constitution;

e. Whether the Defendants are liable for treble damages and attorney fees

pursuant to MCL 600.2919a by failing to turn over the Surplus Proceeds

promptly after the Rafaeli v Oakland County decision was released by the

Michigan Supreme Court on July 17, 2020;

f. Whether Defendants deprived the class members of substantive due process

by seizing their Surplus Proceeds;

g. Whether the Defendants deprived the class members of procedural due

process rights by refusing to provide them with any meaningful manner of

seeking return of the Surplus Proceeds; and

h. Whether the actions of the Defendants constitute a violation of the

provisions of MCL 600.2919a; and

i. Whether the Defendants have been unjustly enriched by the retention of the

Surplus Proceeds belonging to the class members.

47. The violations of Plaintiff’s rights and the resulting harms incurred by the Plaintiff

are typical of the violations and harm incurred by all class members.

48. Defendants have acted in a similar manner against the Plaintiff and all members of

the Class.

49. A class action will be superior to other available methods of adjudication of the

facts and legal issues presented and will promote the convenient administration of justice, and

prevent possible inconsistent or varying adjudications with respect to individual members of the

Class as well as the Defendants.

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 50. Plaintiff will fairly and adequately represent and protect the interest of the members

of the Class and will vigorously prosecute the suit on behalf of the Class; Plaintiff is represented

by highly experienced counsel.

COUNT I – TAKINGS CLAIM

51. Plaintiff incorporates the allegations contained in all preceding paragraphs.

52. Defendants have taken Plaintiff’s property without just compensation in violation

of Article X, § 2 of the Michigan Constitution.

53. Defendants have not paid, and despite demand made after the Rafaeli decision, will

not pay just compensation.

54. Plaintiff is entitled to maintain this action as an action for inverse condemnation

(see Electro-Tech, Inc v HF Campbell Co, 433 Mich 57, 445 NW2d 61 (1989)).

55. Not only did the Defendants take Plaintiff’s Surplus Proceeds, but retention of

interest earned or pecuniary gain on the invested/deposited Surplus Proceeds constituted an

additional taking for which Plaintiff is entitled to compensation.

56. In the alternative, Plaintiff should also be awarded interest from the date of the

foreclosure sale until the filing of this complaint.

COUNT II –CONVERSION

57. Plaintiff incorporates the allegations contained in all preceding paragraphs.

58. Defendants’ failure to turn over Plaintiff’s Surplus Proceeds promptly after the

foreclosure sale constitutes an act of conversion and theft.

59. Defendants took Plaintiff’s property without Plaintiff’s consent.

60. Defendants’ continued control of Plaintiff’s property constitutes conversion as well

as theft.

61. Plaintiff has been damaged as a direct and proximate result of Defendants’ actions.

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 COUNT III – VIOLATION OF SUBSTANTIVE DUE PROCESS

62. Plaintiff incorporates the allegations contained in all preceding paragraphs.

63. Pursuant to the Fourteenth Amendment, Plaintiff is entitled to substantive due

process.

64. Defendants taking of Plaintiff’s property and conversion of same to their own use

deprived Plaintiff of substantive due process.

65. Defendants taking of Plaintiff’s property and refusal to return same even after the

Michigan Supreme Court’s Rafaeli decision, are arbitrary and shocks the conscience.

66. Plaintiff has been damaged as a direct and proximate result of Defendants’

violations.

COUNT IV – VIOLATION OF PROCEDURAL DUE PROCESS

67. Plaintiff incorporates the allegations contained in all preceding paragraphs.

68. Pursuant to the Fourteenth Amendment, Plaintiff is entitled to procedural due

process.

69. Defendants have provided no method or procedure for Plaintiff to secure the return

Plaintiff’s property or obtain it from the Defendants.

70. Defendants taking of Plaintiff’s property and appropriating same to their own use

deprived Plaintiff of procedural due process.

71. Plaintiff has been damaged as a direct and proximate result of Defendants’

violations.

COUNT V – VIOLATION OF FIFTH/FOURTEENTH AMENDMENT

(CLAIM ARISING DIRECTLY UNDER THE FIFTH AMENDMENT)

72. Plaintiff incorporates the allegations contained in all preceding paragraphs.

73. Plaintiff makes this claim directly under the Fifth Amendment.

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 74. The Fourteenth Amendment has made the Fifth Amendment directly applicable to

the States.

75. The taking of Plaintiff’s property without just compensation is in violation of the

Fifth and Fourteenth Amendments of the Constitution of the United States of America.

76. Plaintiff is entitled to interest from the time of taking until payment as part of just

compensation in accordance with Jacobs v United States, 290 US 13, 54 S Ct 26 (1933) and its

progeny.

COUNT VI – VIOLATION OF FIFTH/FOURTEENTH AMENDMENT

(42 USC § 1983)

77. Plaintiff incorporates the allegations contained in all preceding paragraphs.

78. The taking of Plaintiff’s property by Defendants also violated, and continues to

violate, 42 USC § 1983 and 42 USC § 1988.

79. Plaintiff has been injured and suffered damages by Defendants’ acts and actions

and Plaintiff is entitled to the relief provided in 42 USC § 1983 and 42 USC § 1988.

COUNT VIII – UNJUST ENRICHMENT

(alternative count for relief)

80. Plaintiff incorporates the allegations contained in all preceding paragraphs.

81. Defendants have been unjustly enriched by their taking of Plaintiff’s property.

82. Plaintiff does not have an adequate remedy at law.

83. It is inequitable for Defendants to retain Plaintiff’s property and the benefits it has

obtained from retaining Plaintiff’s property.

WHEREFORE, Plaintiff and the class members pray that this Court grant the following

relief:

a. Enter an order certifying this case as a class action;

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 b. Enter an Order declaring that the Defendants actions and conduct violated the

United States Constitution and the Michigan Constitution;

c. Determine that Plaintiff and class members are entitled to Surplus Proceeds;

c. Determine that Plaintiff and class members are entitled to all interest or investment

income earned while the Surplus Proceeds have been retained;

d. Enter judgment in favor of Plaintiff and class members and against Defendants for

the Surplus Proceeds;

e. Award Plaintiff and class members interest on their money at five percent from the

date of sale until entry of Judgment;

f. Award Plaintiff cost and attorney fees as well as interest from the date of Judgment

until paid; and

g. Grant such further relief as is agreeable to equity and good conscience.

VISSER AND ASSOCIATES, PLLC

Dated: ____________, 2020 _________________________________

Donald R. Visser (P27961)
Donovan J. Visser (P70847)
Brittany Dzuris (P81438)
Counsel for Plaintiff

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EXHIBIT 1
NAME PROPERTY ADDRESS PARCEL NO. MINIMUM SALE SURPLUS
BID PRICE PROCEEDS

William Christman 1515 Orchard Ave., 06-09-160-216 $14,500.00 $79,500.00 $65,000.00

Kalamazoo, MI
EXHIBIT 2