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.