Hill v. Cross Country

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Kathleen Hill v. Cross Country Settlements, LLC, No. 4, September Term 2007. UNJUST ENRICHMENT - GENERALLY A PLAINTIFF IS NOT A VOLUNTEER AND THUS NOT PROHIBITED FROM RECOVERY IN UNJUST ENRICHMENT WHEN HE OR SHE ACTS UNDER A LEGAL DUTY, ACTS TO PROTECT HIS OR HER PROPERTY INTERESTS, ACTS UNDER A M ORAL DUTY, ACTS A T THE REQUEST OF THE DEFENDANT, OR ACTS PURSUANT TO A REASONABLE OR JUSTIFIABLE MIST AKE AS T O TH E AF ORE MEN TION ED C ATE GOR IES. SUBROGATION - ALTHOUGH SUBROGATION AND UNJUST ENRICHMENT SHARE MANY OV ERLAPPING PRINCIPLES, SUBROGATION MERELY IS A REMEDY, AND , IN ORD ER TO RECO VER, A PLAIN TIFF REQUIRES ANOTHER UND ERL YING LEG AL T HEO RY. SUMMARY JUDG MEN T - AFFID AVITS IN SUPP ORT - A N AFF IDAVIT CONTAINING A MERE ALLUSION TO A DOCUMEN T, WITHOUT ATTACHING THAT DOCUMENT OR RECITING ITS RELEVANT TERMS, IS INSUFFICIENT TO ASSERT LEGAL SUPPORT TO GRANT SUMM ARY JUDGMENT. Circuit Co urt for Baltim ore Cou nty Case No. 03-C-04-011853 IN THE COURT OF APPEALS OF MARYLAND No. 4 September Term, 2007 KATHLEEN HILL v. CROSS COUNTRY SETTLEMENTS, LLC Bell, C.J. Harrell Battaglia Greene Eldridge, John C. (Retired, specially assigned) Wilner, Alan M. (Retired, specially assigned) Cathell, Dale R. (Retired, specially assigned) JJ. Opinion by Harrell, J. Filed: December 3, 2007 The only thing that is crystal clear about this case is that the grant of sum mary judgmen t, on this record, w as inappro priate. Altho ugh we cannot state conclusive ly that no conceiva ble set of facts that may be developed on remand, based on the analysis here, could support disposition o f this dispute b y summary jud gment, w e suggest that it is quite likely that this litig ation pr esents tr iable issu es. I. Mary Sasso a cquired the resid ential pr operty at 5 33 S. Chester Street in Baltim ore City (the "Property") on 28 March 1991. Approximately six months later, she conveyed the Property to her daughter, Kathleen Hill, reserving for herself, however, a life estate with the power to en cum ber the Prope rty. In 1999, Sasso obtained a home equity loan from Provident Bank ("Provident") using the Property as security for the loan. Provident recorded among the land records of Baltimore City on 22 April 1999 the Deed of Trust associated with that loan. Sasso refin anced the loan with Provident, and a new Deed of Trust was executed, on 25 October 2002. Provident issued a certificate of satisfaction for the 1999 loan and properly record ed the n ew D eed of Trust. Sasso died on 18 May 200 3. Provide nt continue d to receive from Hill regular payments on the 2 002 loa n until a l ast paym ent on 2 5 June 2004. I n June 2004, Adedayo Mseka (the "Buyer") a greed w ith Hill to purcha se the P roperty fo r $175 ,000. Cross Coun try Settlements, LLC ("Cross Country"), was engaged by the Buyer to conduct the closing. During its title search, Cross Country discovered the outstanding 2002 Deed of Trust in favor -1- of Providen t. Cross Co untry contacted Providen t to obtain payoff information. At this point in time, the only relev ant information Cross Country had was the name of the borrower (Sasso) and other self-explanatory information revealed by the four corners of the recorded Deed of Tru st. The record does not contain written documentation of the initial communications between Provident and Cross Country. The comm unications were characterized, however, in an affidavit of Cross Country's President, Rebecca L. Raras, submitted in support of Cross Country's motion for summary judgment, as "difficult." In essence, C ross Cou ntry was una ble to obtain payoff info rmation fro m Provid ent. At some point after Cross Country c ontacted Provident initially, with no success, Cross Country asked for further information from Hill about the 2002 Deed of Trust loan. Hill gave Cross Country what she thought was the co rrect accou nt numb er at Provid ent, number 96021899. This account number, as it turns out, was for the original 1999 loan on the Property, not the 2002 loan. Hill also supplied to Cross Country Sasso's death certificate, which contained such information as S asso's Social Security Numb er.1 Cross Cou ntry, using the ac count num ber provid ed by Hill, con tacted Prov ident again in an effort to obtain payoff information for the 2002 loan. Providen t responde d on 6 July 1 Appare ntly unrecognized by the participants, a link to the answer to th e mystery of the ostensibly unreleased 2002 Deed of Trust and loan was hidden in plain sight. In the bottom right corner of the 2002 Deed of Trust appears the super-imposed number 96038807, which, as hindsight reveals, was the correct account number at Provident for the 2002 loan. This is but one of several critical junctures in a parade of miscue s where the legal morass that this case became might have been averted. -2- 2004 with a letter stating "the above referenced loan was paid in full on October 30, 2002. Deed and Certificate of Satisfaction sent to customer on January 24, 2003." Cross C ountry nonetheless deemed it odd that a loa n wo uld b e paid in f ull only fiv e days after it had been executed and recorded. Cross Country renewed its request to Provident for payoff information for the 2002 loan. Provident responded by faxing a copy of the 6 July 2004 letter to Cross C ountry, with a cover sheet that said, "[t]his was faxed to you on 7-6-04. PS Loan has been pd in full." There is nothing in the record to indicate tha t Cross Country solicited a confirmatory release or certificate of satisfaction from Provident regarding the 2002 loan. The Hill-Mse ka closing o n the Prop erty occurred o n 15 July 200 4. At settlement, Raras claimed, in her summ ary judgment affidavit, that Hill inquired a bout a Provident account being paid off. Raras showed Hill the 6 July 2004 payoff letter from Provident and inquired as to wheth er there were o utstand ing mo rtgages on the P roperty. Hill responded that the Provident account she had in mind when earlier she supplied the number 96021899 was a credit card account in he r mother's name. Raras also claims that Hill informed her that the payoff letter from Provident w as accurate. The form "Owner's Affidavit" signed by Hill at closing states, "THAT no agreement or contract for conveyance, or deed, conveyance, written lease, or writing whatsoever, is in existence, adversely affecting the title to said premises, excep t that in co nnectio n with w hich this Affid avit is giv en." 2 2 The settlement Later, when the litigation that is the present case was before the Circuit Court for Baltimore County, the Circuit Court, in dismissing certain counts in the Fourth Amended (contin ued...) -3- proceeded, with Hill receiving the proceeds of the sale of the Property without deduction for any amount d ue on the 2 002 Prov ident loan. C ross Cou ntry, as agent fo r Stewart T itle Guaranty Com pany ("Stewart"), issued a title insurance po licy to the Buyer.3 On 16 September 2004, two months after the closing and the last payment on the 2002 loan, Provident faxed Cross Country a payoff sheet for the outstanding loan, account number 96038807. The am ount of the payoff was $70,261.26. On 21 September 2004, Cross Country sent a letter to Hill demanding that Hill "forw ard to Cross Country Settlements, LLC a certified check [for $70,261.26] made payable to Provident Bank . . . ." Hill did not respond to the de mand letter. On 22 December 2004, Provident informed the Buyer that the Property would be sold at foreclosure in early 2005. Provident initiated foreclosu re proceedings in the Circuit Court for B altimore City. The Bu yer made a c laim agains t her title insurer, Stewart. Stewart paid the $70,261.26 to Provident, without apparent protest or mounting a defense to the foreclosure on behalf of the Buyer, its insured. Because the title insurance policy was not made a part of the record here, there is no basis upon which to eval uate Stew art's d ecision to pay. Stewart then mad e deman d upon its issuing agent, Cross Country, for reimbursement of the funds paid to Provident. Cross Country paid Stewart on 18 February 2005. Cross 2 (...continued) Comp laint, stated, "one fact is clear; it is the opinion of this Court that [Hill] did not intentionally utter a false representation with the inten t to deceive or defraud [Cross Coun try]." 3 No co py of this p olicy or an y of its term s were made a part of the reco rd. -4- Country claims it wa s required to reimburse Stewart b y the terms of an underwriting agreement between them, although that agreement also was not made part of the record. The sole basis in the record in suppo rt of Cross Country's claim that it was obligated by contract to reimburse Stewart is a bare assertion to that effect in the affidavit of Raras. Cross Country filed its first Complaint against Hill on 12 November 2004 in the Circuit Court for B altim ore C ounty. 4 After a series of dismissals and amended complaints, the Fourth A mended Comp laint (the final c omplaint) and Cross Country's motion for partial summa ry judgment w ere filed on 8 Marc h 2005, af ter Cross C ountry paid S tewart. The Fourth Amended Complaint contained five counts: intentional misrepresentation, intentional misrepresentation - concealment, negligent m isrepresenta tion, unjust en richment, and monies had and r eceived. T he misrep resentation c ounts we re dismissed by the Circuit Court on Hill's motion on 5 October 2005.5 Upon the parties' cross-m otions for summ ary judgmen t,6 the Circuit Court granted summary judgment to Cross Country on Count IV, 4 Hill, the defendant, was a resident of Baltimore County at the time. 5 Hill filed a mo tion to dismiss all counts. The motion was granted only as to the three misrepresentation counts. The motion was denied as to the remaining two claims, unjust enrichment and monies had and received. The Circuit Court's Memorandum Opinion and Ruling, dated 5 October 2005, purported to hold that "[ Cross C ountry] is entitled to restitutionary relief inc luding [Cros s Cou ntry's] fifth claim o f Mo nies H ad and Receiv ed." Such a ruling was improper in disposition of a motion to dismiss, and is entitled to no legal force o r effec t. 6 Cross Country supported its m otion for su mmary judg ment with Raras's aff idavit. Hill filed no affidavit, either in support of its counter-motion o r in opposition to R aras 's affida vit. -5- unjust enrichment, on 2 December 2005.7 Hill filed a timely appeal to the Court of Special Appeals. The intermediate appellate court, in a reported opinion, affirmed the judgment of the trial cou rt. Hill v. Cross Country Settlements, LLC, 172 Md. App. 350, 914 A.2d 231 (2007). We granted certiorari, on Hill's petition, to consider whether the trial court was correct in gran ting sum mary jud gmen t to Cro ss Cou ntry. Hill v. Cross Country Settlements, LLC, 398 Md. 314 , 920 A.2d 105 8 (2007). 8 7 Cross Country moved f or summary judgment only on the unjust enrichment claim. Thus, it is the o nly claim at issue b efore this C ourt. 8 Hill's Petition for W rit of Certiorari presented three questions for our consideration: I. Where, in response to a payoff request, a lender issues two written payoff statements to a settlement company, which unequivo cally state that there is no balance due und er a mortgage, and the settlement company, acting in reliance upon those representations, disburses the net settlement funds to the seller, is that lender estopped from later foreclosing against the property to recover the amount which it subsequently contends it discovered was due under the mortgage? II. Where the lender described above forecloses against the property to collect the amount it claims to have erroneou sly left out of the payof f statements, and the bu yer makes a c laim against the title insurer, if th e title insurer m erely pays the lender instead of defending on the basis of estoppel, is the settlement company liable to indem nify the title insurer? III. Where th e settlem ent c omp any described above m erely reimburses the title insurer instead of defending on the basis that it did not com mit any error in conducting the settlement, may the settlement company bring an unjust enrichment action against the seller of the house for reimbursement of the amount which the settlement compan y paid to the title insurer? -6- II. Maryland law is well settled regarding the appellate standards to be ap plied in reviewing a grant of summ ary judgment. Summ ary judgment is approp riate where "there is no genuine dispute as to any material fact" and "the party in whose favor judgment is entered is entitled to judgment as a matter of law." Maryland Rule 2-501(f). "In granting or denying a motion for summary judgment, a judge makes no findings of fact." King v. Bankerd, 303 Md. 98, 111, 49 2 A.2d 6 08, 615 (1 985). The appellate court will "re view the re cord in the light most favo rable to the nonmoving party and construe any reasonable inferences that may be drawn from the facts against the moving party." Myers v. Kayhoe, 391 Md. 188, 203, 892 A.2d 520, 529 (2006). "In reviewing a grant of summary judgment under Md. Rule 2-501, we inde pendently rev iew the recor d to d eterm ine w heth er the par ties p rope rly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law ." Wells Fargo Home Mortgage, Inc. v. Neal, 398 Md. 705, 714, 922 A.2d 538, 543 (2007) (quoting Livesay v. Baltimore County, 384 Md. 1, 9-10, 862 A.2d 33 , 38 (2004)). As iterated above, if there is a genuine dispute as to an y material fact, summary judgment is improper. Even where the underlying facts are undisputed, "if they [are] susceptible of more than one inference, the party against whom inference s [are] to be drawn . . . [is] entitled to the inferences most favorable to his contentions." Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 14, 155 A.2d 691, 693 (1959) (citing White v. Friel, 210 Md. 274, 285, 123 A.2d 303, 308 (1956)). If the facts are subject to more than one inference, those -7- inferences should be submitted to the tr ier of fa ct. Porter v. Gen. Boiler Casing Co., 284 Md. 402, 413, 396 A.2d 10 90, 1096 (1979); Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138, 265 A.2d 256, 258 (1970 ). III. In 2000, this Court identified the elements of a claim of unjust enrichment, 9 previously considered by the Court of Special Appeals in Everhart v. Miles, 47 Md. App. 131, 136, 422 A.2d 28, 31 (1980). Unjust enrichment consists of three elements: 1. A benefit conferred upon the defendant by the plaintiff; 2. An appreciation or knowledge by the defendant of the benefit; and 3. The acceptance or retention by the defendant of the benef it under such circum stances as to make it inequitable for the defendant to retain the be nefit without the payment of its value. Berry & Gould, P.A. v. Berry, 360 Md. 142, 151-152, 757 A.2d 108, 113 (2000) (quoting County Comm'rs v. J. Roland Dashiell & Sons, Inc., 358 Md. 83, 95 n. 7, 747 A.2d 600, 607 n. 7 (2000)). 9 Because of chaotic and disjointe d develop ment in this area, the body of law of unjust enrichme nt, restitution, subrogation, and related causes an d remedie s is both voluminous and disorganized. See D ANIEL B. D OBBS, H ANDBOOK ON THE L AW OF R EMEDIES § 4.1 n.18 (1973): It is said that sooner or later, monkeys in the British Museum, typing at random, will by sheer chance reproduce exactly all the works of Shakespeare, and that somewhere in Tibet monks are diligently compiling the billions of names for God. There is no similar legend that restitution materials will eventually appear under every conceivable digest topic and word index entry, but there should be. -8- Unjust enrichment is a claim, however, that may not be reduced neatly to a golden rule. See Danie l Friedm ann, Restitution of Benefits Obtained Through the Appropriation of Property or the Commission of a Wrong, 80 C OLUM. L. R EV. 504, 504-05 (1980) ("[U]njust enrichment is notoriously difficult to define. It has on occasion been regarded as too indefinite and vague to be recognized as a general legal principle, with concern expressed that its adoption might unde rmine legal stability, confuse legal thinking, and jeo pardize clear, systematic organizatio n of the law ."). A succe ssful unjus t enrichme nt claim serv es to "deprive the defen dant of be nefits that in equity and good conscience he ought not to keep, even though he may have received those benefits quite honestly in the first instance, and even though the plain tiff ma y have su ffered no dem onstrab le losses ." Dep't of Hous. & Cmty. Dev. v. Mullen, 165 Md. App. 624, 659, 88 6 A.2d 900, 92 1 (200 5), cert. denied, 391 Md. 579, 894 A.2d 546 (2006) (quoting D OBBS, supra, § 4.1). "A person who receives a benefit by reason of an infringement of another person's interest, or of loss suffered by the other, owes restitution to him in the manner and amount necessary to prevent unjust enrichment." Berry & Gould, P.A. v. Berry, 360 Md. 142, 151, 757 A.2d 108, 113 (2000) (quoting Restatement (Second) of Restitution § 1 (Tentative Draft No. 1, 1983)). "The restitution claim . . . is not aimed at compensating the plaintiff, but at forcing the defenda nt to disgorg e benefits th at it would be unjust for him to keep." Mass Transit Admin. v. Granite Const. Co., 57 Md. App. 766, 775, 471 A.2d 1121, 1126 (1984). "The defendant who has received money from the plaintiff by mistake, even though the mistake is an honest one, may be compelled to make -9- restitution of the money." DOBBS, supra, § 4.1. A defenda nt, however, "is not unjustly enriched, and therefore not required to make restitution whe re the ben efit w as co nfer red b y a volunteer or intermeddler." DOBBS, supra, § 4.9 (citing Restatement (First) of Restitution § 112 (1937)). This principle is based on the notion that "one who confers a benefit upon another without affording that other the opportun ity to reject the benefit, has no equitable claim for relief against the recipient of the benefit in the absence of some special policy . . . ." D OBBS, supra, § 4.9. "If plaintiff pays defendant's debt under the mistaken apprehension that he was himself under a d uty to do it . . . there is less reason to treat him as being officious, and the courts will usu ally grant re stitution." John W . Wade , Restitution for Benefits Conferred Without Request, 19 V AND. L. R EV. 1183, 1201 (19 96); see Boney v. Cent. Mut. Ins. Co. of Chi., 197 S.E. 122 (N.C. 1938) (hold ing that plaintiff insurance brok er is entitled to recovery from defendant insurance carrier where the plaintiff paid claim denied by carrier out of moral responsibility); but see Gallagher, Magner & Solomento, Inc. v. Aetna Cas. & Sur. Co., 252 A.2d 206, 207 (Pa. Supe r. Ct. 1969) (denying recovery where plaintiff insurance broker pa id claim denied by insurance carrier because "where the plaintiff is not liable for the debt, he has no right to volunteer a pa yment"); Gaul v. M cLaugh lin, 217 A.2d 757 (Pa. S uper. Ct. 1966) . An unjust enrich ment claim is "equitable in nature, an d the right to re stitution is therefore subject to any counter-equities that the recipient of benefits may assert." D OBBS, -10- supra, § 11.9. Although the basis for recovery in un just enrichm ent is not bas ed on fau lt, misconduct or fault of one of the parties is sometime s considere d in determ ining wh ether to permit r ecove ry. D OBBS, supra, § 11.9.10 III. The parties to the present case vigoro usly contest the a pplication o f the eleme nts of unjust enrichment to the record. Hill argues that, as a matter of law, none of the required elements, especially the second element, can be satisfied, and therefore summary judgment was inappropriate. Cross Country contends that all three elements have been satisfied, and dema nds af firman ce of th e trial cou rt's judgm ent. A. Regarding the first elemen t, whether th e plaintiff co nferred a c ognizable benefit on the defendant, Hill argues that Cross Country was not capable of bestowing a benefit, as it 10 Dobbs identifies four distinct and independent considerations that may balance the equities in favor of the recipient of un-earned benefits: (1) that the recipient of the benefit has in fact gained no net benefit from the tra nsaction, be cause, with out fault, he has fairly passed the benefit to others; (2) that the recipient of the bene fit has chan ged his position in reliance upon the benefit in som e wa y, so that restoration would work a hardship on him; (3) that some broad social policy, as distinguished from equities and hardships, is opposed to restitution; (4) that the recipient of the benefit may not have changed position, but for reasons of convenience in judicial administration, or for re asons o f transa ctional s tability, courts will not re-open the transaction. D OBBS, supra, § 11.9. -11- did not pay over to Hill monie s belongin g to Cross Country. A s a settlement a gent, Hill contends, Cross Country had no financial stake in the closing transaction, other than its own fees. Cross Country's role in the transaction essentially was to act as an intermediary and conduit for monies belongin g to others. C ross Cou ntry counters b y pointing out th at a representative of Cross Country at the closing handed H ill a check drawn on a Cross Coun try checking accou nt. Cross C ountry conten ds that there is n o doubt th at Hill receive d a benef it from Cro ss Country. Both parties largely are incorrect. A lthough the consum mation of the real estate closing did not constitute a conveyance of a benefit to H ill by Cross Country for the purposes of analysis of an u njust enrichm ent claim, the events alleged to have occ urred subs equent to the closing may support a conclusio n that a ben efit was conferred. As a matter of law, the payment of the debt of anothe r constitutes a b enefit conferred, and thus may satisfy the first element of an u njust en richme nt claim . T HE R ESTATEMENT (F IRST) OF R ESTITUTION § 76 (1937) states, "[a] pers on who , in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity from the other, unless the payor is barr ed by the wr ongful n ature of his condu ct." Thus, when a plaintiff pays the liability of the defendant, the defendant's balance sheet improves as a result of such paymen t. See Wade, supra, at 1186 ("One is enriched not only when he receives an asset but also when someone else performs for him a duty which would be a burd en to him. T he clearest ca se is that of one person pa ying another's d ebt. The -12- elimination of this obligation is clearly a benefit . . . ."). Moreover, we have not required always that a benef it conferred in an unjus t enrichme nt action co me nece ssarily and directly to the defendant from the plaintiff's o wn res ources . See Plitt v. Greenberg, 242 Md. 359, 364, 219 A.2d 237, 241 (1966) ("'It is immaterial how the money may have come into the defe ndant's hands, and the fact that it w as received from a third person w ill not affect h is liability, if, in equity and good conscience, he is not entitled to hold it against the true own er.'" (quoting Empire Oil Co. v. Lynch, 126 S.E.2d 478, 47 9 (Ga. Ct. App . 1963))); Plitt, 242 Md. at 364, 219 A.2d at 241 ("[A] plaintiff could recover money from even an innocent transfe ree wh o was withou t know ledge th at he po ssessed the plain tiff's mo ney."). Cross Country, by reimbursing Stewart, paid an asserted debt w hich it conten ds is more properly charg eable to H ill. If Hill were f ound to be liable to S tewart, and as a res ult of the payment by Cross Country that liability was erase d, Hill may be s aid to have received a benefit from satisfaction of that claim. By con trast, if Hill should be determined not to be liable to Provide nt or Stew art in an action brought d irectly against H ill, Hill received no benef it as Cro ss Cou ntry paid a debt tha t Hill did not ow e. B. Hill contends that the second element of an unjust enrichment claim is not present because, viewing the well-pleaded facts in the light most favorable to her as the nonmoving part y, she wa s una war e of t he 2002 mortgag e at th e tim e she rece ived the o verp ayment at closing . This ar gume nt fails to for tw o reaso ns. -13- First, as discussed above, the alleged benefit being litigated in this case is Cross Cou ntry's reimbursement to Stewart. The essence of the requirement that the defendant have knowledge or apprecia tion of the b enefit is that the defendant have an opportunity to decline the benefit. "It is quite app ropr iate to say . . . that the opportunity may exist later; and that the defendant has a true opportunity to decline by insisting that he pay the debt himself. T his would produce a . . . result . . . w hich sh ould be encou raged." Wade , supra, at 1213. H ill apparently had knowledge and appreciation of that payment, as she received a written demand from Cross Country that she pay the bala nce ow ed on the m ortgage to P rovident. In fact, this litigation was initiated prior to the payme nt from C ross Cou ntry to Stewar t. Hill had a fair opportunity to decline the alleged benefit ultimately conferred b y Cross Country by making the payment herself.11 Second, Hill misunderstands the purpose behind the requirement that the defendant against whom a successful unjust enrichment claim is lodged have knowledge or appreciation of the benef it conferred . When th e benefit co nferred is mon ey, there is no requirement that a defenda nt necessar ily have knowledge or appreciation of the benefit precisely at the time the benefit is conferred.12 Some co urts have h eld that when a defendant decl ines a pla intif f's 11 We express no view as to what a trier o f fact migh t make of the asserted f act, if admitted in evidence, that Hill allegedly submitted to Provident the monthly payments due on the 2002 loan for 12 consecutive months following Sasso's death. 12 The purpose behind this requirement is to prevent a true officious intermeddler from maintaining an action for unjust enrichment or quantum meruit when the intermeddler claims he should be compensated for services rendered or value provided to the defendant. Dobbs (contin ued...) -14- request to return a conferre d benefit, the defenda nt has been afforded a fair oppo rtunity to reject the benefit, and thus, recovery may be permitted. See Consol. Fisheries Co. v. Conso l. Solubles Co., 112 A.2d 30, 35 (Del. 1955) ("As a general rule, also, even a volunteer who pays the obligation of another is entitled to reimbursement from the obligor when he takes advantage of the act of the volunteer."); Beacon Homes, Inc. v. Holt, 146 S.E.2d 434 (N.C. 1966) (holding tha t when p laintiff erroneously built a house on defendant's land, and defendant refused to permit plaintiff to rem ove the stru cture, plaintiff was entitled to recovery because defendant had a choice of retaining the benefit). In other words, restitutionary recovery may be perm itted under a theory of unjust enrichment when the recipient of the ben efit "in fact retains a choice of keeping or returning it . . . ." DOBBS, supra, § 4.9. If a plaintiff is mistaken as to the duties or rights that he or she owes another and "because of his mistake confers a benefit upon another, that [plaintiff] is often entitled to recover the value of that benefit, in spite of the fact that the recipient was given no opportunity to decline it." D OBBS, supra, § 4.9. 12 (...continued) provides an apt example. W hile the homeow ner is away, a house painter pa ints the entire house, without the owner's consent, thereby adding value to the homeowner's property. The added value of the hom e cannot be separated easily and returned to the house p ainter. Therefore, a court should not perm it the house painter to recover. Dobbs notes that, although the homeowner is enriched, this result "is preferable to payment of the intermeddler, who should not thus be encouraged to invade another's freedom of choice about h is own affairs ." D OBBS, supra, § 4.9. If, however, the benefit is something that can be easily returned, such as money or personal property, "the fact that it is retained and used is a choice. When this choice is available, the choice principle is satisfied and restitution . . . ought t o be req uired." D OBBS, supra, § 4.9. -15- C. The final eleme nt of an un just enrichm ent claim is a f act-specific balancing of the equities. "The ta sk is to d etermin e whe ther the e nrichm ent is un just." W ade, supra, at 1185. In making fact-specific determinations, a review ing court considers the facts in the record, and the reasonable inferences drawn from those facts, in a light most favorable to the nonmoving party, Hill in this case. Harford County v. Saks, 399 Md. 73, 82, 923 A.2d 1, 6, (2007). Hill presents two related arguments. First, Hill argues that, because either Cross Country or Stewart could have avoided en forceme nt of any asse rted liability owed to Provident by asserting the doctrine of equitable estop pel, Cross Country was a volunteer and therefore proh ibite d fro m recovery against her. Second, Hill argues that an unjust enrichment claim should not be allowed to be maintained in lieu o f a subrog ation claim w hich, if anything, was the more proper form of remedy, if any remedy existed. Under subrogation, Hill contends, she would be able to assert the defense of equitab le estoppel against Cross Country and defeat recovery. We will address each of these arguments in turn. 1. It is undisputed that once properly yoked with the label of "mere volunteer" or "officious payor," a plaintiff is prohibited from recovering under theories of unjust enrichment or subrogation. It less clear, however, precisely when a plaintiff's payment to a third party satisfying the liab ility of the defen dant rende rs a plaintiff a v olunteer an d casts him or her "into legal outer darkness." DOBBS, supra, § 4.3. Palmer notes that "[w]hen one -16- person, without req uest, know ingly pays the debt of another . . . restitution will normally be denied." G EORGE E. P ALMER, T HE L AW OF R ESTITUTION § 10.2 (1978). In ancient Roman law, volunteering to interfere and manage the business of another was encouraged and rewarded. Edw ard W . Hope , Officiousness, 15 C ORNELL L. Q. 25, 25 (1929). In the course of the development of the English common law, however, a prohibition on the recove ry of voluntee rs became accepted. " With con siderable truth , it has been sa id whenever the courts for some reason see fit to refuse subrogation, they denote the unsuccessful plaintiff a 'volunteer.' It may be pointed out also that even where subrogation is allowed, th e courts alm ost invariably pay lip ser vice to th e rule." N ote, Subrogation and the Voluntee r Rule, 24 V A. L. R EV. 771, 772 (1938). Although older surveyed cases strictly and harshly applied the volunteer ru le, more rece nt cases m ap a trend to a "liberal attitude toward those who pay the debt of another, tak ing the form of a pron ounced r eluctance to designate the claim ant a 'vo lunteer.'" Note, supra, at 774; See Daniel Friedmann, Unjust Enrichm ent, Pursuance of Self-Interest, and the Limits of Free Riding, 36 L OY. L.A. L. R EV. 831, 854 (2003) ("The modern approach in American law is more liberal and tends to relax the traditional rule and allow the payor, who has an interest in discharging the debt or a moral duty to do so, to recover from the real debtors.") The drafters of the Restatement (First) of Restitution avoided the difficulty associated with defining the circumstances by which one becomes a "volunteer" prohibited from recovery in unju st enrich ment la rgely by ign oring th e term a ltogethe r. See Restatement -17- (First) of Restitution §162 cmt. b (1937) ("Where a person discharges an obligation owed by another, or a lien upon the property of another, and does so officiously, he is not entitled to reimbursement from the other . . . and is not entitled to be subro gated to the position of the obligee or lien-h older. . . . On the other hand, where the plaintiff is not officious, and he uses his property or his property is used in discharging the obligation of another or a lien upon another's property, he is entitled to reimbursement and is entitled to the remedy of subrogation to obtain reimburseme nt."). The Re statement's de finition of "o fficiousne ss" is no more help ful to the pre sent inquiry than its approach to "volunte er." See Restatement (First) of Restitution § 2 (1937) cm t. a ("Officiousness means interference in the affairs of others not justified by the circumstances u nder which the interfe rence takes place."). 13 The legal principles regarding subrogation contain a parallel prohibition against volunt eers fro m reco vering . Althoug h it is difficult to lay down a g eneral rule ap plicable to all cases in which subrogation is sought, the essential elements necessary for legal sub rogation (as distinguished from conventional and statutory subrogation) are: (1) the existence of a debt or obligation for which a party, other than the subrogee, is primarily liab le, whic h (2) the subrog ee, who is neither a volunteer nor an intermeddler, pays or discha rges in orde r to protect his own rights and interests. (emphasis added) George L. Schna der, Jr., In c. v. Co le Bldg . Co., 236 Md. 17, 23, 202 A.2d 326, 330 (1964) (citing James M orfit Mulle n, The Equitable Doctrine of Subrogation, 3 M D. L. R EV. 201, 203 13 For the purpo ses of this op inion, we d eem "off icious payor," "in termeddler," and "volunteer" as having identical meanings. -18- (1939 ). The foregoing descriptions of how subrogation and unjust enrichment should op erate are helpful, but lacking in a significant respect, as applied to the present case, because of the vaguely defined terms "volunteer" and "intermeddler." The issue s becom e more co mplex in cases such as this, where it is asserted that a "plaintiff settled and paid a . . . claim asserted by a third party on which the defendant was solely liable." P ALMER, supra, § 22.2.14 In McNiece v. Eliason, 78 Md. 168, 27 A. 940 (1894 ), an unsecured creditor of an estate sought to pay an overdue mortgage on property owned by the estate and thereby become subrogated to the rights of a mortgagor. The Court held that the general creditor had no such right and would be a mere volunteer. In Robertson v. Mowe ll, 66 Md. 530, 8 A. 273 (1887), we enforced a plaintiff's subrogation rights when she paid her brother's mortgage with the understanding that she was to be subrogated. In holding that she was not a volunteer, we noted: It is true she w as under n o legal oblig ation to make th is payment, but, under the circumstances stated, she cannot be regarded as a mere stranger or volunteer, offic iously intermeddling with a matter which in no way concerned her. There are no interv ening incu mbrance s or rights of creditors to 14 Palmer describes the two problems that arise when a plaintiff settles a claim brought by a third party where the defendant solely was liable for the claim. P ALMER, supra, § 22.2 The first question is whether the circumstances take the plaintiff out of the "volunteer catego ry." P ALMER, supra, § 22.2. The second is whether the plaintiff may recover the entire amou nt that th e plaintif f paid to settle the claim. P ALMER, supra, § 22.2. Because there is no dispute as to the amount of the underlying claim, we need not consider further the latter sce nario. -19- be interfered with, nor any superior or equal equities to be displaced. Robertson, 66 Md. at 538, 8 A. at 277. In Springham v. Kordek, 55 Md. App. 449, 462 A.2d 567 (1983), children made payments on their mother's mortgage after her spouse aban doned her. The Court of Special Appea ls held that, although the children acted without l egal compulsion, they were not prohibited from recovery on the bases that: (1) they had a moral obligation to assist their mother; (2) they were protecting their own property interest; and, (3) they acted at the request of their mothe r. Absolute legal com pulsion is no t required in o rder for a p laintiff to avo id the fatal designation of "officious." See Restatement (First) of Restitution (1937) § 79. ("A person . . . who was claimed by the creditor to be an obligor, upon an obligation which, as between such person and another, the other had a primary duty to discharge, and who has paid the creditor in discharge of the obligation at a time when it existed against the other, is entitled to indem nity from the othe r, although originally or at the time of payment, the payor was under no duty to make the payment, unless his payment was officious.") (em phasis added); P ALMER, supra, § 22.1 ("If one person mistakenly pays the debt of another, usually in the mistaken belief that it is his own debt, the p olicy a gainst intervention of in the affairs of another loses its force . . . ."). The issue tu rns on whether the plaintiff made a "justified intervention in the defendant's affairs." PALMER, supra, § 22.2. The factual novelty of the present case requires us to adopt a rule to guide future -20- unjust enrichment and subrogation actions. We agree with the Restatement (First) of Restitution (1937) § 79, that a plaintiff may recover for a pa yment or payments to a third party as long as the plaintiff was not officious in making such payment or payments. Although we shall not supply an exhaustive list of situations where a plaintiff would not be deemed officious, g enerally a plaintiff is not officio us when he or she a cts under a legal compulsion or duty, acts und er a legally cognizable moral duty, acts to protect his or her own property interests, acts at the request of the defendant, or acts pursuant to a reasonable or justifiable mistake as to any of the aforementioned categories.15 Applying the considered rules regarding volunteers to the present case, Hill would be allowed to defend on the ground that Cross Country was an of ficious payor, if Cross Cou ntry had no legal or moral obligation to pay Stewart or that any mistake by Cross Country 15 Public policy is best served by striving, where logical and fair to do so, to achieve consistency in the interpretation and application of the overlapping theories of subrogation and unjust enrichment. Consistent with that, we believe the definition of "volunteer" must be identical, regardless of the case, in dealing with unjust enrichment or su brogation. It makes little sense to enable a plaintiff to choose between such closely related legal theories and obtain d ifferen t results. Beall v. Be all, 291 Md. 2 24, 234 n.2, 434 A.2d 1 015, 10 21 n.2 (1981) (interpreting the com mon law in suc h a way as to avoid "an omalous results"). Public policy also is best served by liberally permitting a plaintiff to b e subroga ted to the rights of a third-party creditor. In traditional insurance subrogation cases, a narrow definition of the volunteer rule serves to encourage insurers to defend their insured even where there is a dispute over liability or coverage, thus avoiding unnecessary delay in the settlement of claims. "[P]ayment is not voluntary if it is made with a reasonable or goodfaith belief in ob ligation or pe rsonal interest in making that payment." C OUCH ON INSURANCE § 223:27 (3d ed. 2 005). "If plaintiff pays defendant's debt under the mistaken apprehension that he was himself under a duty to do it . . . there is less reason to treat him as being officio us, and the cou rts will u sually gra nt restitut ion." W ade, supra, at 1201. -21- regard ing its leg al obliga tions w as unre asonab le and u njustifie d. Cross Country implied in the Circuit Court that its payment to Stewart was not voluntary by asserting baldly that the payment was required pursuant to an underw riting agreement between them. Maryland Ru le 2-501(a) requires that a mo tion for summary judgment be su pported by an affidav it if it is "based u pon facts n ot in the reco rd." In its motion for partial summary judgment, Cross Country relied upon Raras's attached affidavit, which stated, "Stewart made demand upon C ross Cou ntry, in accordan ce with the terms of our underwriting agreement, for reimbursement of the funds it paid to Provident. On February 18, 200 5, Cross Country paid Stewart the $76,402.94 incurred by it to avert the foreclosure." Raras's affidavit, by mere allusion to a document and without attaching that document or reciting its relevant terms, soug ht to imply a legal conclusion. In essence, Cross Country argues for the legal proposition that it was ob ligated con tractually to pay Stewa rt, and thu s, suffe red fina ncial los s. Maryland Rule 2-501(c) requires that an affidavit supporting a motion for summary judgment "set forth such facts as would be admissible in evidence." The wholly legal conclusions, explicit and im plicit, contained in Raras's affidavit regarding the asserted legal effect of the alleged underw riting agreem ent are neithe r facts nor w ould they be a dmissible in evidence, notwithstanding whether the docum ent itself, had it b een attache d, would have been admissible. "The interpretation of a contract . . . is a question of law . . . ." Sy-Lene of Wash ., Inc. v. Starwood U rban Retail II, LLC, 376 Md. 157, 163 , 829 A.2d 540 , 544 (2003); -22- see Langston v. Langston, 366 Md. 490, 506, 784 A.2d 1086, 1 095 (2 001), abrogated on other grounds, Bienkowski v. Brooks, 386 M d. 516, 873 A.2d 11 22 (2005 ); Wells v. Chevy Chase Bank, 363 Md. 232, 250, 768 A.2d 620, 629-30 (2001); Auction & Estate Reps. v. Ashton, 354 M d. 333, 340 , 731 A.2d 441, 445 (1999); Calomiris v. Woods, 353 Md. 425, 434-35, 727 A.2d 35 8, 362-63 (1999). Ma ryland Rules 5 -1002 an d 5-1003 require that a party prove the content of a w riting by entering into evidence the original do cument or a duplicate.16 Interpreting the predecessor to Maryland Rule 2-501,17 we opined that "a person w ho claims th e existence of a document which is material . . . to a motion for summary judgment . . . should explain in his affidavit why he cannot produce it . . . . He cannot merely allude to its existence, and without more, hope to raise the specter of dispute over a material fact which would defeat the motion for summary judgment . . . ." Brown v. Suburban Cadillac, Inc., 260 Md. 251, 256-257, 272 A.2d 42, 45 (1971 ); see also Hurt v. Sillman & Dolan, Inc., 35 Md. App. 644, 646, 371 A.2d 1137, 1138 (1977) ("An unsupported conclusion is not the proper way to show an issue of a material fact." (citing Carter v. Baltimore Gas & Electric Co., 25 M d. App . 717, 72 4, 336 A .2d 790 (1975 ))). There appears to us no good reason that the same standards should not apply to the affidavit in the instant case offered in support of a motion. If C ross Cou ntry desired to rely 16 Maryland Rule 5-1 004 perm its a p arty to prove the contents of a writing by other evidence in four narrow situations. T here is no indication here that any of these four unusual circum stances apply in th is case. 17 Maryland Rule 61 0 (1957, 1971 R epl. Vol.). -23- on the legal con clusion that th e alleged un derwriting agreeme nt required it to indemnify Stewart, Cross C ountry was re quired to pr oduce the underw riting agreem ent or, at a minimum, recite the relevant operative terms. Just as we do not permit the non-moving party to defen d again st summ ary judgm ent bas ed on b ald con clusion s of law , a moving party may not rely on unsup ported conclu sory statem ents to ju stify the gr ant of s umm ary judgm ent. In Wyand v. Patterson Agency, Inc., 266 Md. 456, 295 A.2d 773 (1972), we addressed the effectiveness of an affida vit in suppo rt of summ ary judgmen t consisting o f a "bald assertion amounting to a naked legal conclusion" that the defendant was indebted to the plaintiff. We held that a "general allegation of a legal conclusion without detailed and precise facts to sup port it erects no foundati on upon which a s ummary jud gment ca n rest . . . ." Wyand, 266 Md. at 461, 295 A.2d at 776; see also Champion v. United Va. Bank, 87 Md. App . 439, 441, 589 A .2d 1328, 1329 (1 991) (holding that an af fidavit filed in support of summary judgment pursuant to Maryland Rule 2-501(a) "must contain evidentiary facts, not conclusions, and it should be full, certain and exact"). Cross Country's asserted entitlement to summary judgment rests to a similar extent on such an unsupported legal conclusion regarding the interpretation and/or legal effect of the absent underwriting agreement with Stew art. 18 Therefore, summary judgment must be reversed for that reason 18 The Fourth Circuit recently summarized the difficulties facing a court in interpreting a contract in summary judgment analysis: A court faces a conceptually difficult task in deciding whether (contin ued...) -24- alone. Even had Cross Country produced the underwriting agreement and its terms called for the reimbursement claimed, there co uld remain an issue reg arding whether C ross Country successfu lly could maintain an argument that Stewart was a volunteer when it paid Provident to forestall the threatened foreclosure of Mseka's interest in the Property. It appears from the record that Stewart may have had available a defense of equitable estoppel against Prov iden t's foreclo sure actio n. W e hav e def ined equitabl e estoppel ge nera lly: 18 (...continued) to grant summary judgment on a matter of contract interpretation. Only an unambiguous writing justifies summary judgment without resort to extrinsic evidence, and no writing is unambiguous if susceptible to two reas onable inte rpretations. The first step for a court asked to grant summary judgment based on a contra ct's interpretation is, therefore, to determine whether, as a matter of law, the co ntract is ambiguous or unambiguous on its face. If a court properly determines that the contract is unambiguous on the dispositive issue, it may then properly interpret the contract as a matter of law and grant summary judgment because no interpretive facts are in genuine issue. Even where a court, however, determines as a matter of law that the contract is ambiguous, it may yet examine evidence extrinsic to the contract that is included in the summ ary judgment materials, and, if the evidence is, as a matter of law, dispositive of the interpretative issue, grant summary judgment on that basis. If, however, resort to extrinsic evidence in the summary judgmen t materials leaves genuine issues of fact respecting the contract's proper interpretation, summary judgment must of course be refused and interpretation left to the trier of fact. (citations omitted). Wash. Metro. Area Transit Auth. v. Potomac Inv. Props., Inc., 476 F.3d 231, 235 (4th Cir. 2007). -25- Equitable estoppel is the effect of the volunt ary conduct of a party whereby he is absolutely precluded b oth at law a nd in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, a nd has be en led there by to change his position for the worse and wh o on his part acquires some corresponding right, eith er of prop erty, o f con tract , or of rem edy. Cunninghame v. Cunninghame, 364 Md. 266, 289, 772 A.2d 1188, 1201 (2001) (citing 3 J. P OMEROY, E QUITY J URISPRUDENCE § 804 ( 5th ed.1 941). Mortgage foreclo sure is an equitab le reme dy in Ma ryland. Wells Fargo Home Mortgage, Inc. v. Neal, 398 Md. 705, 728 922 A.2d 538, 551 (2007). It long has been held that "he who comes into equity must come with clean hands." Thomas v. Klemm, 185 Md. 136, 142, 43 A.2d 193, 197 (1945). "[C]ourts of equity will not lend their aid to anyone seeking their active interposition, who has been guilty of fraud ulent, illegal, or inequitab le conduct in the matter w ith relation to which he seeks assistance." Hlista v. Altevogt, 239 Md. 43, 48, 210 A .2d 153, 15 6 (1965); see also Hicks v. Gilbert, 135 Md. App. 394, 400, 762 A.2d 986, 989-90 (2000). "When the plaintiff asserts an equitable remedy, equ itable defenses can be inv oked eve n if they could not be invo ked ag ainst a 'leg al' claim." Alternatives Unlimited, Inc. v. New Balt. City Bd. of School C omm'rs, 155 Md. App. 415, 458-59, 843 A .2d 252 , 278 (2 004). E quitable estopp el, it seem s, may be invoked as a defense to a foreclosure action, at least in conc ept. See Schaller v. Castle Dev. Corp., 111 Md. App. 40, 45 680 A.2d 528, 530 (19 96) (applying principles of equitable es toppel to foreclosure sale audit) vacated on other grounds, 347 M d. 90, 698 A .2d 1106 (1997); cf. -26- Wright v. Wagner, 182 Md. 483, 490, 34 A.2d 490, 445(1943) (applying equitable estoppel to prevent mortgagee from imposing liability on mortgagor instead of mortgago r's grantee); E. End Loan & Savs. Ass'n of Balt. City v. Berman, 170 Md. 536, 541, 185 A. 332, 337 (1936) (holding that equitable estoppel could prevent mortgagee from obtaining deficiency judgment against mo rtgagor); Barasso v . Rear Still Hill Rd., LLC, 842 A.2d 1134, 1139 (Conn. App. Ct. 2004) (holding tha t equitable estoppel is a defense to a f oreclosure action); Stewart Title Guar. Co. v. F.D.I.C., 936 S.W.2d 266, 269 (Tenn. Ct. App.) (1996) (holding that equ itable es toppel p revente d lende r's succe ssor fro m fore closing ). Equitable estoppel esse ntial ly con sists of th ree e leme nts: " volu ntary conduct or representation, reliance, and detriment." Mona Elec. Co. v. Shelton, 377 Md. 320, 334, 833 A.2d 527, 535-36 (2003) (citing Creveling v. Gov't. Employees Ins. Co., 376 Md. 72, 102, 828 A.2d 2 29, 246 (2003 )). Stew art, viewing the facts on this record in a light most favorable to Hill, may have had a colorable equitable estoppel argument, which, if interposed and succes sful, mi ght hav e preclu ded Pr oviden t from o btaining foreclo sure relie f. As noted above, howev er, payment, abse nt leg al liability, does not necessarily make a payor officious. The payor, in order to be deemed a volunteer, must have been unreasonable in its mistake regarding the legal obligation to pay. Thus, Hill could emerge v ictorious fro m the suit against her by Cross Country if Cross Country was not liable to Stewart (either because Stewart was a volunteer or because the underwriting agreement did not require Cross Cou ntry's indemnification of Stewart) and Cro ss Country was unre asonably mis taken as to -27- its legal lia bility to Stew art. 2. Hill contends that the p rope r rem edy, if any, b efitting C ross Cou ntry's claim is an action in subrogation or indemnification, not for unjust enrichment. Hill's argument has two implications: that Hill should be entitled to assert equitable estoppel as a defense against Cross Country; and Stewart, by not asserting equitable estoppel against Provident, was a mere v oluntee r when it paid P rovide nt. As a preliminary m atter, we note that Cross Country appears to have pleaded the elements required fo r a legal subro gation claim , albeit without mentioning subrogation by name. A plaintiff does not need to mention specifically subrogation in order to obtain relief under the doc trine. See Bachmann v. Glazer & Glazer, Inc., 316 M d. 405, 4 12, 559 A .2d 365, 368 (1989) ("We are here presented with another situation where a plaintiff has not specifically invoked th e doctrine o f subroga tion, but, as in Schnader and Maryla nd Title, all of the elements of this doctrine have been p leaded and pro ved. [The plaintiff] is thus entitled to recover under the doctrine of subrogation." (citing George L. Schnader, Inc. v. Cole Bldg. Co., 236 Md. 17, 202 A.2d 326 (1964); Md. Title & Escrow Corp. v. Kosisky, 245 Md. 13, 225 A.2d 47 (1966))). Maryland recognizes three distinct categories o f subrogation: legal subrogation, conventional subrogation, and statutory subrogation. Fin. Co. of Am. v. U.S. Fid. & Guar. -28- Co., 277 Md. 177, 182, 353 A .2d 249, 252 (197 6).19 "Legal subrogation . . . arises by operation of law w hen there is a debt or ob ligation owed by one person which another person, who is ne ither a volunteer nor an intermeddler, pays or discharges under such circumstances as in equity entitle him to re imbursem ent to preven t unjust e nrichm ent." 20 Md. Title, 245 M d. at 20, 2 25 A.2 d at 50. Subrogation and unjust enrichment are related legal theories and share many overlapping legal principle s. We prev iously described th e relationship between subrogation and unjus t enrichme nt: "'The object of subrogation is the prevention of injustice. It is designed to promo te and to accomp lish justice, and is the mode which equity adopts to compel the ultimate payment of a debt by one, who , in ju stice , equ ity, and goo d conscien ce, should pay it. 19 Only legal su brogat ion cou ld be rele vant in th e prese nt case. C onventional subrogation arises by the operation of an agreement between the parties. Statutory subrogation, naturall y, arises pu rsuant to a statute . Fin. Co. of Am. v. U.S. Fid. & Guar. Co., 277 Md. 177, 182, 353 A.2d 24 9, 252 (19 76). In this cas e, only legal sub rogation m ay apply because there is no relevant statute governing this situation or an agreement between Hill and Cross C ountry. 20 The overlap between the theories of unjust enrichment and legal subrogation are obvious when comparing the elements of each. The first element of unjust enrichment requires that the p laintiff c onvey a b enefit to the def endan t. By contrast, legal subrogation requires that the plaintiff pay an existing debt of the defendant. In that respect, legal subrogation is a more specific description for unjust enrichment generally where the value received by the plaintiff is that his obligation to a creditor has been discharged by a third party. Both legal theories prohibit a volunteer or officious payor fro m recovery. Both legal theories also conclude with a general "balancing of equities" test. Both legal theories seek to obtain a f air, equitable re sult. In fact, the o nly significant differenc e betwee n the two is the singular requirement in unjust enrichment that the defendant have some knowledge or appreciation of the benefit conveyed to her or him. -29- It is an appropriate means of preventing unjust enrichm ent . . . .'" Podgurski v. OneBeacon Ins. Co., 374 Md. 133, 141, 821 A.2d 400, 405 (2003) (quoting 10 S. W ILLISTON, A T REATISE ON THE L AW OF C ONTRACTS § 1265 (Walter. H .E. Jaeger 3d ed. 1957)). Subrogation is "'the substitution of one person to the position of another, an obligee, whose claim h e has sa tisfied. . . . The basic principles underlying subrogation are the same as those in constru ctive tru sts, prev ention o f merg er, and e quitable liens, i.e., restitution to prevent forfeiture and unjust enrichment.'" G.E. Capital Mortgage Servs., Inc. v. Levenson, 338 Md. 227, 231, 657 A.2d 1170, 1172 (1995) (quoting G.E. O SBORNE, H ANDBOOK ON THE L AW OF M ORTGAGES § 277 (2d ed. 1970). The substituted person "'can exercise no right not possessed by his predecessor, and can only exercise such right under the same conditions and limitations as were binding on his p rede cess or.'" George L. Schnader, Jr., Inc. v. Cole Bldg. Co., 236 Md. 17, 23, 202 A.2d 326, 330 (1964) (quoting Poe v. Phil. Cas. Co., 118 Md. 347, 353, 84 A. 476, 478 (1912)). "Subrogation, like lien, trust, and contract, may arise by agreement of the parties. But subrogation is also a remedy invoke d by cou rts . . . to prevent unjust enrichment, and for this purpose it is appropriate in any case w here restitution is warranted and the remedy can be given without working injustice." D OBBS, supra, § 4.3. Dobbs further elaborated: Subrogation simply means substitution of one person for another; that is, one pe rson is allow ed to stand in the shoes of another and assert his rights. There are many ways this right -30- may come ab out, but the pattern almost always looks something like this: A debtor owes m oney to a creditor. For some reason, perhaps due to mistake or fraud, the plaintiff pays the debto r's debt, thus satisfying the creditor's claim against the debtor. If there is no legitimate reason for the plaintiff's inter vention . . . the plaintiff will be described in derogatory terms as a volunteer and cast into legal outer darkness. D OBBS, supra, § 4.3. Subrogation, in its relationship to unjust enrichment, is best thought of as a rem edy, not as an in depen dent ca use of action. See Pulte Home Corp. v. Parex, Inc., 174 Md. App. 681, 742, 92 3 A.2d 971, 10 05, cert. granted, 401 Md. 172, 931 A.2d 1095 (2007) ("[S]ubrogation is not a cause of action in and of itself. Rather, the doctrine of subrogation allows a party to step into the shoes of a nother in or der to pursu e a cause o f action."); Riemer v. Columbia Med. Plan, Inc., 358 Md. 222, 231, 747 A.2d 677, 683 (2000 ), superseded by statute, Chapter 569 of the Acts of 2000 (defining subrogation as "'[t]he substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted su cceeds to the rights of th e other in rela tion to the de bt or claim, an d its rights, remedies, or securities'" (quoting B LACK'S L AW D ICTIONARY 1427 (6th ed.199 0))); B LACK'S L AW D ICTIONARY 1467 (8th ed. 2004) ( defining su brogation a s the "equitable remedy by which . . . a substitution takes place"); Restatement (First) of Restitution § 162 (1937) ("[W]here the plaintiff is not officious, and he uses his property or his property is used in discharging the obligation of another or a lien upon another's pro perty, he is entitled to reimbursement and is entitled to the remedy of subrogation to obtain reimbursement.") -31- (emphas is added); Note, supra, at 774 ( "In truth . . . subrogation is a remedy, to be accorded as a measure of relief f rom fraud or m istake, or to prevent unjust enrichm ent."). Although there is substantial overlap between the legal theories of unjust enrichment and subrogation, the remedy of subrogation nonetheless requires an underlying and inde pendent le gal basis upon which Cross Country may assert its claims.21 Assuming, arguendo, that Cross C ountry's claim is one for subrogation, the result is, nonetheless, the same. Subrogation as a remedy is particularly apt in cases where a plaintiff pays the secured debt of another and then seeks to assert the creditor's righ ts in the collatera l. For example , in Milholland v. Tiffany, 64 Md. 455, 2 A. 831 (1886), a husband with preexisting debt purchased a piece of property financed by a purchase money mortgage. After 21 The nature of subrogation as a remedy may be illustrated best through the typical subrogation case. A homeowner enters into a contract with an insurer to insure the hom eow ner's prop erty. A tortf easo r neg ligen tly or in tenti onally des troys the h ome own er's prop erty. The insurer compensates the homeowner for his loss and th en is said to be subrogated (likely conventional subrogation by contract) to the homeowner's rights against the tortfeasor . The insurer could sue the tortfeasor under a theory of negligence or intentional torts, not under a theory of subrogation. There would be little confusion regard ing the r ole of s ubrog ation in t his hypot hetical. The situation becomes less clear, however, in a case such as the present one, where the underlying claim is framed as one of unjust enrichment, which shares overlapping principles with subrogation. Only adding to the con fusion is the fact that restitutionary actions brought a t commo n law in as sumpsit also share man y principles w ith an unjust enrichment actions . See Ver Brycke v. Ver Brycke, 379 Md. 669, 698 n.13, 843 A.2d 758, 775 n.13 (2004) ("'[S]om e restitution claim s were eq uitable. Ho wever, m any were no t. Many restitution claims were brought under the common law writ of assumpsit, using its common counts such as the count for money had and received. These claims are claims at law in every sense, first because they seek simply money relief, and second because they were historically brought in the separate law courts.'" (quoting DOBBS, L AW OF R EMEDIES § 2.6(3 )(2d ed . 1993) )). -32- the husband subsequently conveyed the parcel to his wife, he then convinced a friend to pay off the purchase money mortgag e and acce pt a n ew m ortgage i n its p lace . The husb and's creditors successfully petitioned the trial court to set aside the transfer of the property to the wife. This Court held, however, that the friend was entitled to be subrogated and hold the first mortgage position on the prop erty. 22 See also, e.g ., Fin. Co. of Am. v. U.S. Fid. & Guar. Co., 277 Md. 17 7, 353 A.2d 24 9 (1976). If the particular creditor enjoys preferred rights to that of a general unsecured creditor, subrogation becomes an attractive remedy to a plaintiff. In the present case, however, neither Provident nor Stewart has any special righ ts against H ill that are greater than those of an unsecure d claiman t. Cross Co untry is not seek ing to obtain either Provident's or Stewart's security interest in the Pro perty. See Restatement (First) of Restitution § 162 cm t. g (1937) ("W here one p erson is entitled to be subro gated to the position of another, and the other had a claim which was not secured and not enti tled to priority over the claims of other creditors, the person w ho is entitled to subrogatio n ordinarily derives no advan tage from exercising h is right to subrogation, since he thereby secures no advantage over other creditors, and his direct remedy against the obligor is just as good as his remedy by subrogation.") Indeed, the only security interest figuring in this case was an 22 Milholland also represents the interaction and overlap between the legal theories of subrogation and unjust enrichment. If the friend in Milholland were not subrog ated to hold the first mortgage on the pro perty, the husband's creditors would h ave been unjustly enriched by permitting th em to reco ver their pro r ata share of both the unencumbered property and the disbursement of the lo an as ge neral un secure d credito rs. In this respect, the remedy of subrog ation pr evente d the un just enric hmen t of the c reditors . -33- interest in the Pro perty that H ill no lon ger ow ned af ter the fa teful clo sing. Hill's argument implies that, if this case were to be decided under subrogation principles, she would be entitled to assert the defense of equitable estoppel against Cross Coun try. On this record , Hill is no t correc t. As discussed above, equitable estoppel essentially consists of three elements: "voluntary conduct o r representatio n, reliance, an d detrimen t." Mona Elec. Co. v. Shelton, 377 Md. 320, 334, 833 A.2d 527, 536 (2003) (citing Creveling v. Gov't Employees Ins. Co., 376 Md. 72, 828 A.2d 229, 246 (2003)). Hill's claim of equitable estoppel, on this record, fails because she has suffered no detrime nt. As a resu lt of Provid ent's errors in the main, Hill received $70,261.26 more at settlement than she othe rwise wo uld have re ceived. W hile acknowledging she suffered no detrime nt, Hill, in the same breath, asserts that Cro ss Country or Stewart, had Provident brought an action against them, would have been at risk of suffering detriment and therefore could have asserted equitable estoppel as a defen se. Hill implies that if Provid ent's theoretical claims were subrogated to Cross Country, then somehow the defen se available to Cross Coun try would be available to her. Hill offers no support for this assertion. In fact, the Maryland cases relied o n in her brief stand for q uite the opposite conclusion. For example, to illustrate how equitable estoppel applies in real estate transactions, Hill quotes Jurgensen v. New Phoenix Atl. Cond o. Counc il of Unit Owners, 380 Md. 106, 126, 843 A.2d 865, 876 (2004). The Court in Jurgensen noted "the party claiming to have been influenced by the conduct or declarations of another to his injury -34- was himself . . . ." (em phasis added ). Jurgensen requires that the party asserting the defense of equitable es toppel actu ally suffer the inju ry. Hill, on this reco rd, appears n ot to have suffered injury and thus could not assert that defense. Nowhere in Hill's brief could we find persuasive authority where a seller of real estate was allowed to assert equitable estoppel against a mortgagee who gives an incorrect payoff am ount. Nowh ere in Hill's brief is there tendered legal support for the assertion that when an independent obligor-plaintiff pays a third-party creditor, a def endant is en titled to all defenses that the plaintiff had against the third-party creditor. In essence, Hill seeks to employ Cross Country's financial loss (an injury) as an equitable defense. The second implication of Hill's argument that this case should have been bro ught in subrogation is that Stewart and Cross Country should be considered volunteers because they paid without asserting the defense of equitable estoppel. As discussed above, Hill may argue and attempt to prove on remand that Cross Country was a volunteer as to the unjust enrichment claim. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE R E M A N D E D T O TH A T COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OF THE CIRCU IT COURT FOR BALTIMORE COUNTY AND REMAND TO THE CIRCU IT COURT FOR FURTHER P R O C E E D I N G S N O T I N C O N S I S T E N T W I T H T H IS OPINION; COSTS IN THIS COURT AND THE COURT OF SPECIAL -35- A P P E A L S T O B E D I V ID E D EQU ALL Y BY THE PAR TIES . -36-

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