Now comes Defendant [REDACTED] by and through her attorney, Patrick Maizy, and states the following:

On January 3, 2023, Defendant filed an Emergency Ex Parte Motion to Stay an Order of Eviction with the hopes that Sheriff Department would not put her out of her home before a hearing on the matter was heard. Plaintiff responded to said Motion on January 4, 2023, and Defendant hereby respectfully requests this Honorable Court consider this Brief in Support.

Plaintiff avers in its motion that Defendant’s submission of $18,717 was not timely. Defendant refutes this claim on this basis that Plaintiff was not made available to Defendant at all times relevant hereto. As Defendant indicates in its motion, Defendant made attempts to contact Plaintiff. Defendant affixes to this brief in support a statement to verify this pleading and the Motion to Stay the Order, so as to cure the defect referenced in Plaintiff’s brief. Due to the emergency nature of the filings, being that a Sheriff could show up and throw the Defendant out of her home at any time, Defendant was forced to originally file without said statement. Nonetheless, the statement is attached below. Furthermore, Defendant is willing and able to testify to this fact under oath should a hearing be granted.

In the case at bar, the Plaintiff availing itself to the Defendant was an implied condition of the agreement. A concurrent condition is one that is required by each party. The Restatement (Second) of Contracts, 238 (2nd, 1981), in a section titled Excuses for Nonperformance: Conditions Following Contract Formation clearly indicates that:

[W]here all or part of the performances to be exchanged under an exchange of promises are due simultaneously, it is a condition of each party’s duties to render such performance that the other party either render or, with manifested present ability to do so, offer performance of his part of the simultaneous exchange.

Similarly, a condition precedent ‘is a fact or event that the parties intend must take place before there is a right to performance.’ Mikonczyk v. Detroit Newspapers, Inc., 238 Mich.App. 347, 350, 605 N.W.2d 360 (1999), quoting Reed v. Citizens Ins. Co. of America, 198 Mich.App. 443, 447, 499 N.W.2d 22 (1993). “Failure to satisfy a condition precedent prevents a cause of action for failure of performance.” Berkel Co. Contractors v. Christman Co., 210 Mich.App. 416, 420, 533 N.W.2d 838 (1995)

In the case at bar, Plaintiff and Defendant entered into a land contract with installment payments. After years of installment payments the relationship broke down, such that the parties wound up in court. At that hearing, a consent judgment was entered whereby Defendant would make a balloon payment to pay off the full amount owed, $18,717, within six months in exchange for title to the property. Defendant’s other conditions were to obtain renter’s insurance [see underlying motion] and to ensure taxes were not due, such that Plaintiff would be under risk of foreclosure through the six-month period [see Exhibit 1]. Defendant honored the conditions. The final condition was to pay off the remaining balance, at which time, simultaneously, Plaintiff would furnish a signed deed transferring the property to the Defendant, who at that point, would have paid a total of roughly $50,000 for the property pursuant to the land contract. Defendant could not get a hold of Plaintiff, and to expect Defendant to simply furnish these funds into a payment account without ensuring that the Deed was being transferred over made for an understandably extremely uncomfortable proposition. Plaintiff makes no claim that Plaintiff phoned Defendant or made any requests to meet with Defendant, or made itself available to Defendant, at any time relevant hereto. Had that been done, these circumstances could have been completely avoided, as Defendant has been willing and able to pay since the hearing in May 2022.

WHEREFORE, Defendant respectfully requests this Honorable Court lift the Order of Eviction, require Plaintiff sign over the deed, and enter a dismissal. In the alternative, Defendant respectfully requests this Honorable Court stay the Order of Eviction until a hearing can be held on the matter.