In Wilmington Savings Fund Society, FSB v Clare, a published Michigan Court of Appeals opinion, the court held that a mortgagee cannot, after the redemption period has expired, record an affidavit purporting to expunge a sheriff’s deed in foreclosure of a mortgage.
The mortgagee argued that it was entitled to file an affidavit pursuant to MCL 565.451a, which allows a person having knowledge of facts affecting title to property to record an affidavit attesting to those facts. However, that statute allows a statement of facts that have happened; it does not authorize the person signing the affidavit to create a condition affecting title by filing the affidavit. In the first case squarely presenting the issue, the court held that a sheriff’s sale cannot be set aside by the mere filing of an affidavit simply because the mortgagee wants to set aside the sale.