NOT RECOMMENDED FOR PUBLICATION File Name: 17a0158n.06
No. 16-2160

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT JANICE POTTER, et al. Plaintiffs-Appellants,

v. WILMINGTON SAVINGS FUND, et al. Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

BEFORE: KEITH, ROGERS, and KETHLEDGE, Circuit Judges. ROGERS, Circuit Judge. Plai ntiffs Janice and David Potter brought a quiet-title suit against Wilmington Savings Fund and Bank of Am erica, the current and former mortgagees, respectively, of the Potters’ home. The Potters faced foreclosure in 2010. Their house was sold at a sheriff’s sale and their mortgage was extinguished. Howe ver, in 2014 Bank of America recorded an affidavit under Michigan law, purpor ting to expunge the sheriff’s sale and reinstate the mortgage, thereby setting aside the foreclosur e. The Potters now argue that this affidavit succeeded in expunging the sheriff’s sale but faile d to reinstate the mortgage. Therefore, the Potters contend, they now own the house out right, unencumbered by a mortgage. The district court dismissed the Potters’ qui et-title claim, concluding that the affidavit both expunged the sale and reinstated the mortga ge, such that the Po tters own the property encumbered by a mortgage. As the court further reasoned, even if the affidavit were invalid, theNo. 16-2160, Potter v. Wilmington Savings

-2- affidavit would be invalid in its entirety, neit her expunging the sale nor reinstating the mortgage, such that the Potters would now be living on the pr operty with no title at all. The district court’s reasoning was correct: in either event, no quiet-title relief was warranted. Janice and David Potter recorded a mortga ge for their home in February 2007. A few years later, the Potters ran into financial difficu lty. They defaulted on their mortgage in March 2009 and filed for Chapter 7 bankruptcy in June 2 009. As a result of the bankruptcy, the Potters’ personal obligations for their mortgage were discharged, although th e property remained encumbered by the mortgage. After the bankruptcy, th e original mortgagee assigned its interest in the property to BAC Home Loans Servicing, L.P. BAC initiated foreclosure proceedings against the Potters’ property. BAC ended up purchasin g the property itself by sher iff’s deed in March 2010. The Potters did not redeem the propert y. BAC then transferred title of the property to Fannie Mae by quitclaim deed. Fannie Mae, in turn, transfer red title to Bank of America, also by quitclaim deed. Bank of America is therefore the succe ssor by merger to BAC, as well as the first defendant in this case. Around 2012, the Potters allegedly sought rescis sion of the sheriff’s deed, which would have reinstated the mortgage but also allowed th em to be reviewed for a loan modification or another loss-mitigation alternativ e. To this end, in April 2012, Bank of America executed an “Affidavit Expunging Sheriff’s Deed on Mortga ge Filed Pursuant to MCLA 565.451a.” Through this affidavit, Bank of America declared:No. 16-2160, Potter v. Wilmington Savings

-3- . . . 4. That MORTGAGEE will not rely on sa id foreclosure sale and will treat such sale as having not been held and void. 5. That MORTGAGEE wishes this Affidavit to be recorded in order to correct record title and to show that the Sh eriff’s Deed dated March 31, 2010 . . . is hereby expunged, and that the mortgage recorded on February 2, 2007 . . . is in full force and effect.
Section 565.451a of the Michigan Compiled Laws allows “any person having knowledge of the facts” to record an affidavit “stating f acts relating to ... [k]nowledge of the happening of any condition or event which may te rminate an estate or interest in real property.” M.C.L. § 565.451a(b). As will be discussed in greater detail below, it is the practice in Michigan to use M.C.L. § 565.451a to record affidav its that expunge a pr evious foreclosure sa le and reinstate a mortgage. Thus, Bank of America’s affidavit under M.C.L. § 565.451a was intended to restore the status quo before the March 2010 sheriff’s sale, with the Potters again as mortgagors but Bank of America as the new mortgagee. The Potte rs apparently did not make any payments on their reinstated mortgage and c ontinued to live in the house. In March 2014, Bank of America assigned its in terest in the property to the Wilmington Savings Fund, as a trustee of the Primestar-H Fu nd 1 Trust. Wilmington Savings is the second defendant in this case. Wilmington Savings initiated another fore closure on the property in October 2014. In response, the Potters filed a quiet-title compla int in Michigan state court against Wilmington Savings Fund, launching this litigation. The Potte rs also joined Bank of America, which, as a citizen of North Carolina for diversity purposes, removed the ca se to federal court. After discovery, both defendants moved for summary judgment.No. 16-2160, Potter v. Wilmington Savings

-4- In opposition to the defendants’ motion fo r summary judgment, the Potters made the legal argument they now make on appeal. The Potte rs argued that the sh eriff’s sale by BAC in March 2010 extinguished their mortgage. Therefor e, BAC, as the purchaser of the property as well as the mortgagee, took unencumbered title to th e property. BAC then transferred this title to Bank of America. Thus, when Bank of America d eclared in Paragraph Four of the affidavit that it “will not rely on said foreclos ure sale and will treat such sa le as having not been held and void,” it was in effect giving title back to the Potters. However, although the Potters accept the validity of Paragraph Four of the affidav it expunging the sale, they deny the validity of Paragraph Five’s reinstatement of the mort gage, arguing that Bank of America cannot unilaterally declare that the mortgage is “in full force and effect.” The Potters contend that because Paragraph Four of the affi davit is valid but Paragraph Five is not, Bank of America gave the Potters back their property but failed to rein state the mortgage, such that the Potters now own the property free of any mortgage. The district court rejected the Potters’ ar gument. Although the court acknowledged some problems with the use of M.C.L. § 565.451a affidav its to reinstate mortga ges, it concluded that the affidavit was at most voidable by the bene fited party—Bank of Amer ica—and in any event, could not be “split up” so that it succeeded in giving the Potters back the property but failed in reinstating the mortgage. The court concluded th at “[a]ny other result means that the Potters get a free house, which I think is just not saleable.” The Potters now appeal, but th eir argument lacks merit. Michigan case law demonstrates that that a mortgagee can use an affidavit filed pursuant to M.C.L. § 565.451a to both expunge a sheriff’s sale and revive a mortgage, returning two parties to the status quo before a sale. Fo r example, this case is on all fours with Freund v. TrottNo. 16-2160, Potter v. Wilmington Savings

-5- & Trott, P.C. , where a mortgagee foreclosed on a pi ece of property, but then executed an “Affidavit Expunging Sheriff's Deed on Mortgage Sa le” asserting that it “w ill not rely on said foreclosure sale and will treat such sale as having not been held and void ab initio.” No. 299011, 2011 WL 5064248, *2 (Mich. Ct. App. Oct 25, 2011) (per curiam). Based on this affidavit, the Michigan Court of Appeals conc luded that foreclosure had been set aside, in effect both expunging the sale and rein stating the mortgage. Id. It apparently did not even occur to the court to give effect to the provision of the affidavit expunging the sale but not the provision reinstating the mortgage. Freund is not an isolated case. In Cordes v. Great Lakes Excavating & Equip. Rental , the Michigan Court of Appeals uphe ld an affidavit under M.C.L. § 565.451a whereby the mortgagor agreed to undo the discharge of a mort gage. No. 304003, 2012 WL 2052789, *2 (Mich. Ct. App. 2012). Again, based on this affidavit, the court c oncluded that the discharge had been set aside, in effect reinstating the mortgage. Id. Again, there was no sugges tion that only the discharge could be expunged by affidavit, but the mortgage could not be reinstated. Similarly, in Davis v. GMAC , the Michigan Court of Appeals gave effect to the mortgagee’s act whereby it “rescinded the foreclosure, expunged the sheriff's deed, an d reinstated plaintiff' s mortgage.” No. 307721, 2014 WL 2751046, *3 (Mich Ct. App. J une 17, 2014). Although the Davis opinion is silent as to whether this expungement and reinstatement wa s accomplished by an affidavit under M.C.L. § 565.451a, the case at least stands for the proposition th at expungement and reinstatement can be accomplished simultaneously. Relying on these Michigan cases, federal courts in this circuit also have upheld such affidavits that both expunge a sale and reinstate a mortgage. For example,
in Wuori v. Wilmington Savings Fund Society , this court held that an affidavit under M.C.L. § 565.451a could both expunge a sheriff’s sale a nd revive a mortgage. 2016 WL 7378407 at *4No. 16-2160, Potter v. Wilmington Savings

-6- (6th Cir. Dec. 20, 2016); see also Connolly v. Deutsche Bank Nat. Trust Co. , No. 12–12517, 2013 WL 4084742, *5-*6 (E.D. Mich. Aug. 13, 2013), aff’d in Connolly v. Deutsche Bank Nat.
Trust Co. , 581 F. App’x 500, 505-06 (6th Cir. 2014). True, the cases set forth above are not from the Michigan Supreme Court, which should be the first source of state law for a federal court sitting in diversity, see Erie R.R. Co. v. Tompkins , 304 U.S. 64 (1938). However, when a st ate’s highest court has not addressed a particular issue, a federa l court may rely on a state’s lower cour ts as well as other federal courts construing state law in order to ascertain how th e highest state court would rule if were faced with that issue. Meridian Mut. Ins. Co. v. Kellman , 197 F.3d 1178, 1181 (6th Cir. 1999). Here, caselaw from the Michigan Court of Appeals and federal courts applying Michigan law indicates that the Michigan Supreme Cour t would hold that an affidav it under M.C.L. § 565.451a can both expunge a sheriff’s sale and revive a mortgage. Therefore, this court must agree with the district court’s conclu sion that the Bank of America affidavit is valid, such that the Potters have title to the property but Wilmington is the mortgagee. The Potters were not entitled to quiet -title relief. The Potters seek to resist th is reading of Michigan law. Their argument relies almost entirely on a single Michigan Court of Appeals case: Trademark Properties of Michigan, LLC v. Federal Nat. Mortg. Assn. , 863 N.W.2d 344 (Mich. Ct. App. 2014). In Trademark , the court reasoned that “A foreclosure of a mortgage extinguishes it . . . and the purchaser becomes the owner of an equitable interest in the mortgaged premises which ripens into a legal title if not defeated by redemption as provided by law.” Id. at 349 (citing Dunitz v. Woodford Apartments
Co. , 209 N.W. 809, 810 (Mich. 1926)). The court furt her reasoned that “‘[s]tatutory foreclosures should not be set aside without some very go od reasons therefor.’ A ‘strong case of fraud,’No. 16-2160, Potter v. Wilmington Savings

-7- irregularity, or ‘some peculiar exigency’ is require d to set aside a statutor y foreclosure sale.” Id. (citing Markoff v. Tournier , 201 N.W. 888 (Mich. 1925); Kubicki v. Mtg. Electronic Registration Sys. , 807 N.W.2d 433 (Mich. Ct. App. 2011). After quoting this language, the Trademark court held that the affidavit in that case se tting aside a foreclosure was invalid. Id. at 350-51. Because that affidavit was also recorded under M.C.L. § 565.451a, the Potters argue that Trademark generally prevents reinstatement of a mo rtgage by affidavit under M.C.L. § 565.451a. However, the Potters’ reliance on Trademark is misplaced. First of all, the Trademark court appears to have set aside the entire foreclosure, see id. at 350, thereby both expunging the sale and reinstating the mort gage. Therefore, even if Trademark can be read for the proposition that affidavits under M.C.L. § 565.451a cannot set aside an entire fo reclosure, it does not support the Potters’ preferred outcome that such an a ffidavit can set aside half a foreclosure, i.e., expunge the sale but not re instate a mortgage. Second, unlike the cases set forth above, Trademark involved an affidavit that was invalid for an independent reason. In order to ju stify voiding the sheriff’s sale, the mortgagee’s affidavit cited an unrelated Michig an Court of Appeals Case that he ld that the particular type of foreclosure employed was void. See Residential Funding Co., LLC v. Saurman , 807 N.W.2d 412 (Mich. Ct. App. 2011) (“ Saurman I ”). However, in the time between the recording of this affidavit and the decision in Trademark , the Michigan Supreme Court reversed the Michigan Court of Appeals, holding that the particular type of forecl osure employed could be valid. See Residential Funding Co., LLC v. Saurman , 805 N.W.2d 183 (Mich. 2011) (“ Saurman II ”). Even though the Trademark court cited language suggesting that foreclosure cannot be set aside by affidavit, the court ultimately chose to d ecide the case on this discrepancy between Saurman I and Saurman II , reasoning “we need not decide the effect of the filing of an affidavit when aNo. 16-2160, Potter v. Wilmington Savings

-8- foreclosure sale was void ab initio because, here, the foreclosure sale was not void.” Trademark , 863 N.W.2d at 350. In other words, Trademark did not hold that affidavits cannot set aside a foreclosure, but only that a particular affidavit was invalid for an independent reason. Therefore, Trademark cannot support the Po tters’ argument against Freund , Cordes , and Davis

. Moreover, even assuming that the affida vit under M.C.L. § 565.451a was invalid for some reason, then the property would not have b een lawfully returned to the Potters, and quiettitle relief would not be warrant ed. We are cited no authority to the contrary in that regard. For these reasons, we affirm the judgment of the district court dismissing the Potters’ quiet-title suit.