WASHINGTON MUTUAL BANK FA V SHOREBANK CORP
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STATE OF MICHIGAN
COURT OF APPEALS
WASHINGTON MUTUAL BANK, F.A.,
FOR PUBLICATION
June 23, 2005
9:10 a.m.
Plaintiff-Appellant,
v
No. 254338
Oakland Circuit Court
LC No. 03-047297-CH
SHOREBANK CORPORATION and
STANDARD FEDERAL BANK, N.A.,
Defendants-Appellees,
and
Official Reported Version
HANNA SHINA, a/k/a JOHN SHINA, and
JAKLIN SHINA,
Defendants.
Before: Sawyer, P.J., and Markey and Murray, JJ.
SAWYER, P.J.
Plaintiff appeals an order of the circuit court granting summary disposition for defendants
on plaintiff 's complaint seeking recovery on a loan secured by a mortgage. We affirm.
Plaintiff alleges that it made a $392,000 loan to Hanna and Jaklin Shina secured by a
mortgage on property located in West Bloomfield. Most of the loan proceeds were used to
satisfy and discharge a prior first mortgage on the property in favor of Option One Mortgage
Corporation. According to plaintiff, it was unaware of the fact that, at the time it made the loan
to the Shinas, there were two other mortgages recorded against the property: a $200,000
mortgage in favor of ShoreBank and a $249,000 mortgage in favor of Standard Federal Bank.
Plaintiff alleges that the Shinas have defaulted on both those mortgages, which put the property
into foreclosure. Although both those mortgages were recorded before the mortgage in favor of
plaintiff, both were made after the Option One mortgage.
Plaintiff filed a multicount complaint. Count one claimed that, under the doctrine of
equitable subrogation, the mortgage in favor of plaintiff should be superior to, and have priority
over, the mortgages in favor of ShoreBank and Standard Federal. That is, the Washington
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Mutual mortgage should stand in the place of the Option One mortgage. The trial court granted
summary disposition in favor of defendants, concluding that plaintiff had no legal obligation to
pay off the Option One Mortgage and, therefore, it was a volunteer not entitled to equitable
subrogation. The trial court also referenced plaintiff 's ability to recover under a title insurance
policy. Plaintiff 's claims against ShoreBank and Standard Federal are the only ones at issue in
this appeal. We review de novo the grant of summary disposition. Beaudrie v Henderson.1
Subrogation comes in two forms described by the Supreme Court in French v Grand
Beach Co2 as follows:
The doctrine of subrogation rests upon the equitable principle that one
who, in order to protect a security held by him, is compelled to pay a debt for
which another is primarily liable, is entitled to be substituted in the place of and to
be vested with the rights of the person to whom such payment is made, without
agreement to that effect. This doctrine is sometimes spoken of as "legal
subrogation," and has long been applied by courts of equity. Stroh v. O'Hearn,
176 Mich. 164, 177 [142 NW 865 (1913)]. There is also what is known as
"conventional subrogation." It arises from an agreement between the debtor and a
third person whereby the latter, in consideration that the security of the creditor
and all his rights thereunder be vested in him, agrees to make payment of the debt
in order to relieve the debtor from a sacrifice of his property due to an enforced
sale thereof. It is wholly independent of any interest in the property which the
lender may have to protect. It does not, however, inure to a mere volunteer who
has no equities which appeal to the conscience of the court.
In Stroh v O'Hearn,3 the Court noted that the equitable principle of subrogation is not available
to volunteers:
Subrogation is an equitable doctrine depending upon no contract or
privity, and proper to apply whenever persons other than mere volunteers pay a
debt or demand which in equity and good conscience should have been satisfied
by another. It is proper in all cases to allow it where injustice would follow its
denial, and in allowing it all injustice should be guarded against so far as possible.
The principle that subrogation is not available to a mere volunteer was again applied in Lentz v
Stoflet.4 Indeed, even in Walker v Bates,5 a case that cannot be reconciled with Lentz, the Court
1
465 Mich 124, 129; 631 NW2d 308 (2001).
2
239 Mich 575, 580-581; 215 NW 13 (1927).
3
Id.
4
280 Mich 446, 451; 273 NW 763 (1937).
5
244 Mich 582, 587; 222 NW 209 (1928).
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acknowledged that subrogation is not available to a mere volunteer. See also Hartford Accident
& Indemnity Co v Used Car Factory, Inc,6 and Beaty v Hertzberg & Golden, PC.7
Thus, the question becomes whether plaintiff is properly categorized as a "mere
volunteer." Not surprisingly, plaintiff relies on Walker in its argument that it was not a volunteer
in paying off the Option One mortgage. The relevant transaction history in Walker is this.
(1) The Hannas purchased the property at issue and granted a mortgage to Highland Park State
Bank.
(2) The plaintiffs sued Henry and Frances Bates, claiming that the Bateses had fraudulently
purchased the property with the plaintiffs' money.
(3) Frances Bates contracted to sell the property to Charles Derr and his wife.
(4) The Derrs contracted to sell the property to the Howeses, with the Howes assuming the
mortgage given to Highland Park State Bank.
(5) A lis pendens was filed related to the plaintiffs' suit against the Bateses.
(6) Frances Bates mortgaged the property to Commonwealth-Federal Savings Bank, with the
Hannas' mortgage to Highland Park State Bank being paid and discharged.
(7) Frances Bates conveyed the property by warranty deed to the Howeses.
(8) A judgment was rendered in favor of the plaintiffs and a lien was placed on the property.
(9) An action was commenced to foreclose on the lien.
In the litigation to foreclose the lien, Commonwealth-Federal claimed that it was entitled to be
subrogated to the rights of Highland Park State Bank as mortgagee. The analysis by the majority
in Walker, however, is scant. It essentially consists of quoting much of the same material from
French that we did above, and then making the following statement.
The first mortgage was upon the property when the notice of lis pendens
was filed. No injustice results from subjecting plaintiffs' rights thereto. Their
interest in the property is charged with the payment of a mortgage lien of the
6
461 Mich 210, 215-216; 600 NW2d 630 (1999).
7
456 Mich 247, 255; 571 NW2d 716 (1997) (for a third party to avoid being classified a mere
volunteer, the damage must have been incurred as the result of the third party's fulfillment of a
legal or equitable duty owed by the third party to the client).
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same amount as that which was on it when the lis pendens was filed. The trial
court very aptly said:
"It is immaterial to the plaintiff and wasn't wronging him any, to just
simply change from the Highland Park Bank to the Commonwealth Bank." [8]
In short, although the Walker majority acknowledged the "mere volunteer" rule by quoting from
French, it did not engage in any meaningful analysis of the point. Rather, the extent of its
analysis rested upon its conclusion that applying the doctrine would not create any injustice to
the holder of the lis pendens because the holder was in no worse position than it was before the
remortgaging.
While the majority in Walker ignored the volunteer rule, the dissent did not, making the
following observation:
A stranger to the title cannot, by payment of the whole or any portion of a
mortgage, become subrogated to the rights of the mortgagee.
The
Commonwealth-Federal Savings Bank was a stranger to the parties and the title, a
volunteer, with no interest in or claim against the parties or the premises which it
was in equity entitled to have protected. Under such circumstances, it is not
entitled to subrogation to the prejudice of plaintiffs' lien.[9]
Were Walker the last word on the subject, we might have to agree with plaintiff that
Walker compels a conclusion that an entity in plaintiff 's position is not a volunteer, though such
a conclusion would arise more from the implications of Walker than its express holding or
analysis. But Walker is not the final word on the subject. Rather, it appears that the Supreme
Court's opinion nine years later in Lentz is the Supreme Court's latest word on the topic of
equitable subrogation in the context of mortgages. Lentz, like Walker, was written by Justice
Sharpe. Lentz, however, reached the opposite result as Walker, despite a similarity in facts.
Specifically, the transactions at issue in Lentz were these.
(1) William Mexico and his wife gave a mortgage in the amount of $4,000 to Rockwood State
Bank over a 94.72 acre tract of land.
(2) The Mexicos conveyed the property to the Stoflets.
(3) The Stoflets mortgaged 68.49 acres of the property to Rockwood State Bank.
(4) Rockwood State Bank foreclosed on both mortgages and acquired title to the property.
8
Walker, supra at 587.
9
Id. at 584-585 (Potter, J., dissenting).
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(5) The Stoflets mortgaged the 68.49 acre tract to the State Savings Bank of Carleton.
(6) Rockwood State Bank discharged the mortgages it held and conveyed the property to the
Stoflets.
(7) The next day, the Stoflets made payment to Rockwood State Bank with money loaned to
them by an agent of the plaintiffs, with a mortgage being granted to the plaintiffs covering the
68.49 acre tract of land as well as two other parcels.
(8) The plaintiffs commenced foreclosure on the mortgage and sought a determination that their
mortgage be given priority over the mortgage to the State Savings Bank of Carleton on the basis
that the plaintiffs' rights should be subrogated to the rights of Rockwood State Bank and its two
mortgages on the property under a theory of equitable subrogation.
In his analysis, Justice Sharpe again quoted from French, as well as three other sources
discussing the volunteer rule. The analysis began with a discussion of the fact that the new
mortgage was in a greater amount and covered additional land, with the ability of the State
Savings Bank to recover any deficiency being reduced. The majority then made the following
observations:
When plaintiffs loaned the money they had no interests to protect. It was
done without any agreement or understanding that they were to enjoy the fruits of
subrogation. It was voluntarily done upon their part and to grant it would not
leave defendant in its former position. A mere volunteer is not entitled to
subrogation.[10]
Interestingly, Justice Sharpe did not cite his previous opinion in Walker, much less explain how
it was distinguishable from Lentz.
While Justice Sharpe ignored Walker, Justice Potter, the author of the dissent in Walker,
did not. Justice Potter filed a concurring opinion in Lentz, which opinion opened with the
observation that the effect of the opinion in Lentz is to overrule Walker.11 After reviewing
several authorities on the issue of the volunteer rule, Justice Potter stated:
This case [Walker] holds that a mere stranger to the title who voluntarily
advances money to help a fraudulent holder of real estate pay a mortgage placed
by him thereon has equities more appealing to the conscience of the court than
those of the real but defrauded owner of the real estate with notice of whose rights
the money was advanced. This case stands alone. It violates all the principles
10
Lentz, supra at 451.
11
Id. at 451 (Potter, J., concurring).
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underlying the cases involving legal or conventional subrogation in England and
America. It is not a precedent to be followed, but an accident to be avoided. [12]
We also find guidance from Justice Potter in his concurrence:
Subrogation "from its very nature, never could have been intended for the
relief of those who were in a condition in which they were at liberty to elect
whether they would or would not be bound." Gadsden v Brown, 1 Speer's Eq.
(S.C.) 37 [17 SC Eq 37 (SC App Eq, 1843)]. This, says the Supreme Court of the
United States, is perhaps as clear a statement of the doctrine as can be found
anywhere. Ætna Life Ins. Co. v. Middleport, 124 U.S. 534 (8 Sup. Ct. 625) [31 L
Ed 537 (1888)]. This was the rule recognized in Smith v. Austin, 9 Mich. 465
[1862], and Kitchell v. Mudgett, 37 Mich. 81 [1877]. In Desot v. Ross, 95 Mich.
81 [54 NW 694 (1893)], complainant was sought to be subrogated. It is said:
"She was a stranger to the title, and as such could not, by payment of the
whole or any portion of the mortgage, become subrogated to the rights of the
mortgagee."
The court cited in support of this proposition Kelly v. Kelly, 54 Mich. 30,
47 [19 NW 580 (1884)]; Shinn v. Budd, 14 N.J. Eq. 234, 237 [(1862)]; Brice v.
Watkins, 30 La. Ann. 21 [(1878)]; and quoted with approval from Sanford v.
McLean, 3 Paige Ch. (N.Y.) 117, 122 (23 Am. Dec. 773) [3 NY Ch Ann 80
(1832)], as follows:
"'It is only in cases where the person advancing money to pay the debt of a
third party stands in the situation of a surety, or is compelled to pay it to protect
his own rights, that a court of equity substitutes him in the place of the creditor as
a matter of course, without any agreement to that effect. In other cases the
demand of a creditor which is paid with the money of a third person, and without
any agreement that the security shall be assigned or kept on foot for the benefit of
such third person, is absolutely extinguished.'"[13]
We are obligated to follow the most recent pronouncement of the Supreme Court on a
principle of law. Brown v Genessee Co Bd of Comm'rs (On Remand).14 The most recent
pronouncement of the Supreme Court on this topic would certainly seem to be that the doctrine
of equitable subrogation does not allow a new mortgagee to take the priority of the older
mortgagee merely because the proceeds of the new mortgage were used to pay off the
12
Id. at 455 (Potter, J., concurring).
13
Id. at 452 (Potter, J., concurring).
14
233 Mich App 325, 328; 590 NW2d 603 (1998), rev'd on other grounds (After Remand) 464
Mich 430 (2001).
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indebtedness secured by the old mortgage. It is clear to us that, under Lentz, plaintiff is a mere
volunteer and, therefore, is not entitled to equitable subrogation.
Plaintiff, however, offers other reasons why it should be entitled to equitable subrogation.
Plaintiff argues that equitable subrogation should apply because the mortgage was obtained
through fraud, the fraud being the Shinas' failure to disclose the mortgages given to defendants in
the mortgage application to plaintiff. But the cases cited by plaintiff do not support its position.
First, three of the cases did not even involve the question of giving priority to one
mortgage over another. In Linn v Linn,15 the mortgagee held two mortgages on a property,
which were replaced by a new mortgage, with the mortgagors being a husband and wife. After
the husband's death, the wife denied having executed the mortgage. The Court held that the
earlier mortgages were to be revived because their discharge was obtained through the supposed
execution of the fraudulent new mortgage. In White v Newhall,16 the Court ruled against the
purported mortgagee, concluding that the proper remedy was for the purported mortgagee to seek
an equitable lien.17 Finally, in Coulter v Minion,18 Minion owned property in Barry County and
Lloyd owned property in Grand Rapids. They exchanged the two properties, plus an additional
$250 to be paid to Minion. Lloyd had mortgaged the Grand Rapids property and, under the
agreement, Lloyd would mortgage the Barry County property to pay off the Grand Rapids
mortgage and to pay the $250 to Minion. Minion arranged the mortgage with Coulter. As it
turned out, Minion swindled Lloyd because the Barry County property was essentially worthless,
and Lloyd abandoned it, defaulting on the mortgage. Coulter then sued Minion, seeking to be
subrogated to the rights of the mortgagee on the Grand Rapids property (which now belonged to
Minion) to recompense Coulter for her losses caused by Minion's fraud. The Court granted the
mortgagee subrogation to Coulter. None of those cases dealt with a later mortgage being
equitably subrogated to an earlier mortgage to leap ahead of intervening mortgages on the
priority list.
On the other hand, in Eggeman v Harrow,19 there was a question of the priority of an
intervening mortgage, but it presented a pure question of fraud rather than an application of the
volunteer doctrine. In Eggeman, the Eggemans gave a $3,000 mortgage to Harrow covering two
lots. Thereafter, a new mortgage was made covering only one of the two lots in the amount of
$2,000. On the same day, the Eggemans gave a mortgage over the same lot to Miller, Mrs.
Eggeman's father. Although it appears that the new mortgage to Harrow was executed first, Mr.
Eggeman maneuvered to have the Miller mortgage recorded first. In holding that the Harrow
15
122 Mich 130; 80 NW 1000 (1899).
16
68 Mich 641; 36 NW 699 (1888).
17
Id. at 647.
18
139 Mich 200; 102 NW 660 (1905).
19
37 Mich 435 (1877).
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mortgage would have priority, the Court did not engage in a consideration of the application of
the volunteer rule to the equitable subrogation doctrine. Rather, the Court concluded that the
Miller mortgage was fraudulent in its entirety, noting that there had not, in fact, been any loan
from Miller to the Eggemans that it secured, that there was not "any real consideration or equity"
behind the mortgage.20
Any fraud in the case at bar is not materially different from the fraud in Lentz. In both
Lentz and this case, the later mortgage was obtained apparently without disclosing the existence
of the earlier mortgage(s). In short, if the volunteer doctrine applies in Lentz despite the fraud,
then it also applies in this case despite the similar fraud.
Plaintiff also argues that a mistake of fact prevents plaintiff from being considered a
volunteer. We disagree. As with the fraud issue, the cases relied on by plaintiff are not
analogous to this case. In Detroit & Northern Michigan Building & Loan Ass'n v Oram,21 the
mistake involved was by a life tenant who believed that she owned the real estate in fee and
mortgaged the property, paying off the preexisting mortgage. A second mistake occurred when
the title abstractor failed to discover that the life tenant was not the owner in fee. The mortgagee
sought to be subrogated to the original mortgage, which relief was granted. But the Court's
holding very specifically noted two facts: the new mortgage was defective because the life
tenant could not grant a mortgage, and there were no intervening encumbrances. Id. at 499. In
this case, the mortgage to plaintiff is not defective and there are intervening encumbrances.
Similarly, Sproal v Larsen22 allowed subrogation where the mortgagor no longer held title
because of a conveyance occurring between the filings of the original mortgage and the
subsequent mortgage, with the Court noting the requirement that there could be no persons with
intervening superior equities in order to apply subrogation.23 Detroit Fire & Marine Ins Co v
Aspinall,24 also represents a case in which there was a failed mortgage with no intervening liens
to be considered.
In Taylor v Roniger,25 there was a mistake regarding ownership. The plaintiff bought the
property subject to a preexisting mortgage, that he then paid off. But his title was defective
because the seller's ex-wife never signed the deed conveying the property to the plaintiff, and,
therefore, she retained ownership (and became sole owner after her ex-husband's death). The
20
Id. at 439.
21
200 Mich 485; 167 NW 50 (1918).
22
138 Mich 142; 101 NW 213 (1904).
23
Id. at 143.
24
48 Mich 238; 12 NW 214 (1882).
25
147 Mich 99; 110 NW 503 (1907).
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Court ultimately held that the plaintiff, in essence, became the equitable owner of the mortgage
he paid off.26
Plaintiff 's reliance on French is grossly misplaced because a mistake was not at issue and
the quotation in plaintiff 's brief that refers to subrogation applying in cases of mistake, among
others, which plaintiff attributes to French, is actually from a different source that French itself
quotes. The issue in French was whether the holder of a promissory note secured by a first
mortgage could be compelled to accept payment and issue an assignment and subrogation of that
note to a new lender. Apparently the new lender in French wanted the priority of the first
mortgage (which the plaintiff was foreclosing because of a default by the defendant), and the
plaintiff did not want the new lender to obtain priority over the second mortgage because the
plaintiff also held bonds secured by the second mortgage. The Court determined that it was
equitable to require the plaintiff to issue the assignment and subrogate the new lender to the
original mortgage. No mistake was involved. See also Moore v Smith,27 which also involved the
right to an assignment, in that case in order to redeem the property following a foreclosure.
Similarly, Palmer v Sharp28 did not involve a mistake; rather, it involved a fraud.
Further, while plaintiff does quote a brief passage that references "mistake," that is not the basis
of the analysis of that case. In fact, like in Oram, the Court in Palmer specifically noted that, for
subrogation to apply, there can be no intervening encumbrances.29 There also was no mistake
involved in Draper v Ashley,30 in which the facts differ greatly from the case at bar. Indeed, if
anything, Draper supports defendants' position because the Court specifically noted that "one
who pays off a prior incumbrance, and takes a new security for the advance, is not entitled to
priority over an intervening incumbrance."31
Also, as with the fraud argument, plaintiff overlooks the fact that the mistake in this case
is no different than the mistake in Lentz. The mistake in both cases is that a new mortgage was
granted to pay off a senior mortgage, without the discovery of intervening junior mortgages.
Accordingly, there is no basis for distinguishing this case from Lentz on the basis of a mistake
providing an exception to the volunteer rule.
Next, plaintiff cites Smith v Sprague,32 for the proposition that a mere promise of
repayment is sufficient to prevent plaintiff from being regarded as a volunteer. Once again, this
26
Id. at 104.
27
95 Mich 71; 54 NW 701 (1893).
28
112 Mich 420; 70 NW 903 (1897).
29
Id. at 423-424.
30
104 Mich 527; 62 NW 707 (1895).
31
Id. at 531.
32
244 Mich 577; 222 NW 207 (1928).
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overlooks the fact that the promise of repayment in the case at bar is no different from that in
Lentz, and, therefore, provides no basis to distinguish Lentz. Furthermore, the cases are different.
In Sprague, there was no issue of providing priority over intervening encumbrances. Rather, the
Court used the subrogation doctrine to impose liability on the promissor's widow. Briefly, the
defendant and her husband defaulted on mortgage notes. The husband borrowed money from his
former daughter-in-law to pay off the mortgage, promising to grant the former daughter-in-law a
mortgage to secure the debt, but he died without fulfilling his promise. The Court concluded that
it was unnecessary to determine if the defendant had agreed with her husband to grant the
mortgage to the plaintiff because, even if she had not, under equitable subrogation the plaintiff
could be subrogated to the prior mortgage that had been paid off. Not only was that not a case of
granting priority over intervening encumbrances, but it also appears that the exact opposite was
true: the subrogation was subject to the intervening encumbrances. Although not discussed in
detail in the opinion, in describing the trial court's decree, which was affirmed, the Court stated
that the plaintiff "had decree with respect to the mortgage of $5,000 and subject to incumbrances
created in the meantime, and defendant has appealed."33 Thus, if anything, Smith supports
defendants' position in the case at bar.34
Finally, relying on Schanhite v Plymouth United Savings Bank,35 plaintiff argued that it
should be given priority over the mortgages to defendants in order to prevent unjust enrichment.
Schanhite, however, does not support plaintiff 's position. In Schanhite, a mortgage was given to
the sellers of the property, the Glasses, who thereafter gave two assignments of the mortgage for
the purpose of securing their indebtedness. The first assignment was to State Savings Bank of
Ann Arbor and the second was to Plymouth United Savings Bank. There are various
conveyances of the property subject to the mortgage, with Schanhite eventually purchasing the
property still subject to the mortgage previously given to the Glasses and with Schanhite
expressly assuming the indebtedness to the Ann Arbor bank. As part of Schanhite's purchase
transaction, he gave another mortgage on the same property to the Ann Arbor bank, the proceeds
of which were used to pay off the indebtedness from the Glasses to the Ann Arbor bank, which
indebtedness Schanhite had assumed, and to pay tax arrearages (the property was about to be
sold for failure to pay taxes). At issue was whether the new mortgage to the Ann Arbor bank
should have priority over the original mortgage and its assignment to the Plymouth bank. The
Court held that it should, but the analysis does not support plaintiff 's position in the case at bar.
First, the Court applied the equitable doctrine of mistake and not equitable subrogation.36 More
to the point, the Court relied on the well-settled rule that the acceptance by a mortgagee of a new
mortgage and his cancellation of the old mortgage do not deprive the mortgagee of priority over
33
Id. at 579.
34
Interestingly, the unanimous decision in Smith was decided the same day as the apparently
aberrant decision in Walker and cites many of the same authorities.
35
277 Mich 33; 268 NW 801 (1936).
36
Id. at 38.
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intervening liens.37 Third, the Court noted that the Ann Arbor bank's loan was necessary to pay
the tax arrearages, and had the money not been advanced, the property would have been lost to
the tax man.38 Thus, the new mortgage operated to the Plymouth bank's benefit. In other words,
the Court, in effect, restored the original mortgage, essentially correcting the Ann Arbor bank's
"mistake" of discharging the original mortgage.39
By contrast, in this case, we are not presented with a new mortgage being accepted by the
holder of the old mortgage. That is, had the new mortgage been given to Option One Mortgage,
and Option One was before us rather than plaintiff, Schanhite might provide the authority to
revive the original mortgage and give the new mortgage the same priority as the one it replaced.
For that matter, it might be sufficient under Schanhite if the plaintiff had first purchased the
Option One mortgage and then accepted the new mortgage. But neither of those situations is
present here, and, therefore, Schanhite is inapplicable. For that matter, there is no indication that
the mortgage granted by plaintiff was necessary to preserve defendants' security in the property.
That is, while defendants certainly have benefited by the new mortgage in that a debt with a
higher security interest priority was discharged, there is no indication that defendants were about
to lose their security interests if the loan had not been made at the time plaintiff made its loan to
the Shinas. Accordingly, neither of the conditions present in Schanhite is present here.
Schanhite is similar to Wallace v McBride,40 another case relied on by plaintiff. In
Wallace, the plaintiff had received a fraudulently assigned second mortgage, which eventually
was reassigned to the rightful holder. But, in the meantime, the first mortgage had been
foreclosed and the plaintiff paid the money to redeem the property from the sheriff 's sale on that
foreclosure. Thereafter, the plaintiff asserted an interest in the property based on his redemption.
The Court held that the plaintiff was entitled to recover the money he paid for the redemption,
though equity denied him interest on the debt.41 As in Schanhite, in which the Court noted that
the property would have been lost for taxes, the Court in Wallace noted that the holder of the
second mortgage would have lost the land to the purchaser at the sheriff 's sale of the property
under the foreclosure of the first mortgage.
In sum, with the exception of Walker, we are unaware of any authority regarding the
application of the doctrine of equitable subrogation to support the general proposition that a new
mortgage, granted as part of a generic refinancing transaction, can take the priority of the
original mortgage, which is being paid off, giving it priority over intervening liens. And, as for
Walker, as Justice Potter stated in his concurrence in Lentz, Walker "is not a precedent to be
37
Id. at 39.
38
Id. at 40.
39
Id.
40
70 Mich 596; 38 NW 592 (1888).
41
Id. at 600-601.
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followed, but an accident to be avoided."42 Such bolstering of priority may be applicable where
the new mortgagee is the holder of the mortgage being paid off or where the proceeds of the new
mortgage are necessary to preserve the property from foreclosure or another action that would
cause the intervening lien holders to lose their security interests. But neither of those
circumstances exists here. Therefore, plaintiff is not entitled to be subrogated to the original
mortgage and receive priority over the intervening lienholders. Accordingly, the trial court
properly granted summary disposition for defendants.
Plaintiff 's other issue on appeal is that, in ruling against plaintiff, the trial court
erroneously relied on the existence of title insurance from which plaintiff could seek recovery.
While we do not necessarily disagree with plaintiff that the availability of insurance coverage
should have no bearing on the resolution of the substantive question presented in this case,
because we conclude that the trial court properly granted summary disposition in favor of
defendants, we need not address this issue.
Affirmed. Defendants may tax costs.
/s/ David H. Sawyer
/s/ Jane E. Markey
/s/ Christopher M. Murray
42
Lentz, supra at 455.
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