e-Journal Summary

e-Journal Number : 67718
Opinion Date : 04/19/2018
e-Journal Date : 04/23/2018
Court : Michigan Court of Appeals
Case Name : Wilmington Sav. Fund Soc'y, FSB v. Clare
Practice Area(s) : Litigation Real Property
Judge(s) : Per Curiam – Stephens, Shapiro, and Ronayne Krause
Full PDF Opinion

Foreclosure; Validity of an expungement affidavit; MCL 565.451a; MCL 565.453; Wuori v. Wilmington Sav. Fund Soc’y (Unpub. 6th Cir.); Freund v. Trott & Trott, PC (Unpub.); Effect of the Sixth Circuit Court of Appeals’ interpretation of Michigan law; Commonwealth Land Title Ins. Co. v. Metropolitan Title Corp.; Standing; Trademark Props. of MI, LLC v. Federal Nat’l Mtg. Ass’n; Lansing Sch. Educ. Ass’n v. Lansing Bd. of Educ.; MCL 600.2932(1); MCL 600.3115; Motion to amend to add claims of equitable mortgage & unjust enrichment


In an issue of first impression, the court held that MCL 565.451a does not authorize a former mortgagee to expunge a foreclosure by filing an affidavit unilaterally setting aside a sheriff’s deed and “reinstating a mortgage for no reason other than the filing of the affidavit itself.” Thus, the trial court properly dismissed plaintiff’s action for judicial foreclosure because the mortgage interest was extinguished at the end of the redemption period. However, because the court held that plaintiff had standing, it remanded the case to the trial court for a ruling on the merits of plaintiff’s motion to amend to add claims of equitable mortgage and unjust enrichment. Foreclosure by advertisement proceedings were conducted on defendants’ property in 2010. However, eviction proceedings in 2012 ended with a ruling in their favor. In 2014, an entity acting as attorney-in-fact for the last party to hold the mortgage before the sheriff’s sale recorded an “expungement affidavit” purporting to set aside the sheriff’s deed and reinstate the mortgage and note. Plaintiff’s predecessor in interest filed this suit for a determination of interests in land and judicial foreclosure. The court first held that the trial court erred in ruling that plaintiff lacked standing. However, it agreed with the trial court “that a party cannot set aside a foreclosure sale simply through the unilateral filing of an expungement affidavit.” Plaintiff relied on MCL 565.451a and a Sixth Circuit opinion interpreting it, Wuori. However, Wuori was not binding and the court noted that it had “never considered the question” presented. It concluded that the plain statutory language did “not include any indication that an affidavit may be used to create a condition. It necessarily follows that a party cannot unilaterally revoke a foreclosure sale by recording an affidavit that is itself the claimed condition.” There was no statutory basis for finding that “the Legislature intended for a party to be able to rescind a foreclosure sale and revive a mortgage by merely recording an affidavit that it ‘agrees’ to do so.” While plaintiff also relied on an unpublished case, Freund, the court found that it was “neither precedential nor on point.” Affirmed in part and remanded.

Full PDF Opinion