J-A06041-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

DANA J. MCCONAGHY,                       :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                   Appellee              :
                                         :
                      v.                 :
                                         :
THE BANK OF NEW YORK AS TRUSTEE          :
FOR THE CERTIFICATE HOLDERS              :
CWALT, INC., ALTERNATIVE LOAN            :
TRUST 2006-45T1, MORTGAGE PASS-          :
THROUGH CERTIFICATES, SERIES             :
2006-45T1 AND MERS ACTING SOLELY         :
AS A NOMINEE FOR AMERICA’S               :
WHOLESALE LENDER,                        :
                                         :
                   Appellants            :   No. 1247 WDA 2017

           Appeal from the Judgment Entered September 20, 2017
            in the Court of Common Pleas of Washington County
                 Civil Division at No(s): C-63-CV-2012-7599

BEFORE:      BENDER, P.J.E, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED JUNE 13, 2018

      The Bank of New York, and its predecessors and successors in interest

(collectively, BNY), appeal from the September 20, 2017 judgment in favor

of Dana McConaghy and against BNY in this quiet title action. Specifically,

BNY challenges the trial court’s order, which granted relief in favor of

McConaghy and against BNY on its counterclaims for equitable relief.1 We


1 BNY appealed from the August 3, 2017 order denying its post-trial motion.
An appeal does not properly lie from an order denying post-trial motions, but
rather upon judgment entered following disposition of the post-trial motions.
See Mackall v. Fleegle, 801 A.2d 577, 580 (Pa. Super. 2002). Upon order
(Footnote Continued Next Page)



*Retired Senior Judge assigned to the Superior Court.
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affirm in part, vacate in part, and remand for proceedings consistent with

this memorandum.

       We glean the following factual history from the record.                          In 1998,

McConaghy and her husband, Matthew McConaghy (Decedent), purchased a

home on Doubletree Drive, Venetia, Washington County, with the aid of a

$230,000 loan secured by a mortgage from Relocation Financial Services

(Relocation loan/mortgage).               Both McConaghy and Decedent signed the

deed   for   the   home         and      the     documents         to   obtain   the   Relocation

loan/mortgage.

       In February 2004, McConaghy and Decedent obtained a loan secured

by a mortgage from First Franklin Financial Corporation (First Franklin

loan/mortgage)         for   $342,250,           in   order   to    pay    off   the   Relocation

loan/mortgage.     Both McConaghy and Decedent signed the documents to

obtain the First Franklin loan/mortgage.

       In 2006, McConaghy and Decedent separated. McConaghy moved out

of the home and filed a complaint for divorce, which was never finalized.

Decedent continued to live in the home while it was listed for sale. At that

time, only the First Franklin mortgage encumbered the home.


(Footnote Continued)   _______________________

from this Court, BNY praeciped the trial court prothonotary to enter
judgment on the order of the trial court. Accordingly, we treat this case as if
timely filed from the September 20, 2017 entry of judgment. Pa.R.A.P.
905(a).



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     In August 2006, Decedent alone obtained a $175,000 loan from First

Commonwealth Bank (First Commonwealth loan).                In October 2006,

Decedent alone obtained a $200,000 loan secured by a mortgage from

IndyMac Bank (IndyMac mortgage) to pay off the First Commonwealth loan.

Following this transaction, the first lien on the home was still the First

Franklin mortgage, and the purported second lien was the IndyMac

mortgage. However, as noted above, McConaghy did not participate in the

acquisition of the First Commonwealth loan or the IndyMac mortgage. She

signed no mortgage documents.

      In November 2006, Decedent alone obtained a $543,600 loan secured

by a mortgage and a $101,925 loan secured by a mortgage from

Countrywide     Home    Loans     (Countrywide   loans/mortgages).2        Again,

McConaghy did not participate in the acquisition of the Countrywide

loans/mortgages.    The $543,600 loan and a portion of the $101,925 loan

were used to pay off the remaining balance on the First Franklin loan

($336,020.65)    and    the     remaining   balance   on   the   IndyMac     loan

($201,702.95).     Following these transactions, the Countrywide mortgages

purported to take the positions of the First Franklin and IndyMac mortgages

as the first and second liens on the home.



2 By a series of assignments, BNY ultimately became the holder of the
Countrywide mortgages.



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      In January 2007, the company that conducted the settlement for the

Countrywide mortgages contacted McConaghy and requested that she re-

sign a document for which Decedent had provided a copy during closing.

Upon viewing the document, McConaghy learned that Decedent had, by

among other things, forged McConaghy’s signature, and produced an altered

document that purported to transfer McConaghy’s interest in the home to

Decedent.

      In January 2008, Decedent was indicted on criminal charges related to

the Countrywide mortgages.       Decedent committed suicide in April 2008,

making McConaghy the sole remaining owner of the former tenant by the

entirety   property,   which   remained   encumbered   by   the   Countrywide

mortgages. McConaghy contests the validity of the mortgages and has not

made any mortgage payments.          As a result, McConaghy has received

numerous collection letters and foreclosure notices since 2008.

      On November 19, 2012, McConaghy filed an action to quiet title,

asserting that the Countrywide mortgages were procured by fraud and were

unenforceable because Decedent “did not have the permission or legal right

to unilaterally encumber the [p]roperty with a [m]ortgage.”       Complaint in

Action to Quiet Title, 11/19/2012, ¶¶ 30, 31. BNY filed an answer with new

matter and counterclaims. In its counterclaims, BNY sought relief based on

unjust enrichment for satisfying the First Franklin mortgage, and for paying

the insurance and taxes on the home since November 2006.


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      On July 16, 2015, BNY filed a motion for partial summary judgment

asserting the existence of an equitable lien on the property created by BNY’s

satisfaction of the First Franklin mortgage.     The trial court denied BNY’s

motion, and the case proceeded to a nonjury trial on March 24, 2017. On

May 19, 2017, the trial court granted McConaghy relief in her quiet title

action, holding that the Countrywide mortgages were void, invalid, and

unenforceable, and denied BNY’s counterclaims for equitable relief because

the trial court found that BNY had unclean hands.

      BNY filed a motion for post-trial relief,3 which was denied by the trial

court on August 3, 2017. This timely-filed appeal followed.4 BNY presents

the following issues for our consideration.5


3 Post-trial motions must be filed within ten days after the filing of a nonjury
trial verdict. Pa.R.C.P. 227.1(c). The tenth day fell on a holiday, making the
deadline May 30, 2017. See Pa.R.C.P. 106(b). BNY filed its post-trial
motion on June 1, 2017. Nonetheless, because the motion was filed while
the trial court still had jurisdiction over the matter, McConaghy did not
object to the timeliness of the motion, and the trial court decided the motion
on the merits, we are permitted to ignore the untimeliness of the post-trial
motion. See Ferguson v. Morton, 84 A.3d 715, 718 n.4 (Pa. Super. 2013)
(“[W]hen untimely post-trial motions are filed within the thirty-day period
that the trial court retains jurisdiction over the case, and when the trial court
decides those issues without objection by an opposing party, we will treat
the subsequent appeal as though the post-trial motions were timely filed for
purposes of issue preservation.”).

4 The trial court did not order BNY to file a Pa.R.A.P. 1925(b) statement, and
did not file a Pa.R.A.P. 1925(a) opinion. “Ordinarily, the remedy for non-
compliance with [] Pa.R.A.P. 1925(a) is a remand to the trial court with
directions that an opinion be prepared and returned to the appellate court.”
Commonwealth v. Hood, 872 A.2d 175, 178 (Pa. Super. 2005) (citation
(Footnote Continued Next Page)



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      1. Whether the trial court erred as a matter of law and/or
      abused its discretion when it held that [BNY] had failed to
      establish equitable claims for unjust enrichment, equitable
      subrogation, and equitable lien.

      2. Whether the trial court erred as a matter of law and/or
      abused its discretion when it held that [BNY was] not entitled to
      equitable remedies because [Countrywide] allegedly had
      engaged in fraudulent conduct, [was] grossly negligent, and had
      unclean hands.

      3. Whether the trial court’s findings that [BNY] allegedly had
      engaged in fraudulent conduct, w[as] grossly negligent, and had
      unclean hands were against the weight of the evidence at trial.

BNY’s Brief at 5 (unnecessary capitalization and trial court answers omitted).

      We review these issues mindful of the following.

            Our review in a non-jury case such as this is limited to a
      determination of whether the findings of the trial court are
      supported by competent evidence and whether the trial court
      committed error in the application of law. Findings of the trial
      judge in a non-jury case must be given the same weight and
      effect on appeal as a verdict of a jury and will not be disturbed
      on appeal absent error of law or abuse of discretion. When this
      Court reviews the findings of the trial judge, the evidence is
      viewed in the light most favorable to the victorious party below
      and all evidence and proper inferences favorable to that party
      must be taken as true and all unfavorable inferences rejected.

(Footnote Continued)   _______________________

omitted). However, after review of the record, we conclude that the trial
court’s    memoranda from May 19, 2017, and August 3, 2017, adequately
apprise us of the trial court’s reasoning in relation to the issues raised
herein. Thus, we need not remand for the filing of a 1925(a) opinion and we
will proceed to review the merits of BNY’s claims. See id.

5There is no question that the trial court did not err in granting McConaghy’s
complaint to quiet title.    Because she never signed the Countrywide
mortgage documents, they were, as the trial court put it, “void, invalid, and
unenforceable.” Trial Court Opinion, 5/19/2017, at 8, 9.



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                                    ***

     Conclusions of law, however, are not binding on an appellate
     court, whose duty it is to determine whether there was a proper
     application of law to fact by the lower court. With regard to such
     matters, our scope of review is plenary as it is with any review of
     questions of law.

Shaffer v. O’Toole, 964 A.2d 420, 422-23 (Pa. Super. 2009) (internal

quotation marks and citations omitted).

     BNY asserts that unless it is granted equitable relief, McConaghy will

be unjustly enriched at BNY’s expense.     BNY claims it was entitled to be

equitably subrogated to the rights of First Franklin and thus be awarded an

equitable lien on the Doubletree property. The trial court denied equitable

relief because it held that Countrywide, BNY’s assignor, had unclean hands

in this transaction. We agree with BNY, in part.

     Because the issues of unjust enrichment, equitable subrogation,

equitable lien, and unclean hands are all interrelated, we address them

together.

     Prior to the Countrywide mortgages, the Doubletree property was

purportedly encumbered by two mortgages, one from First Franklin and the

second from IndyMac. Like the later Countrywide mortgages, the IndyMac

mortgage was fraudulently obtained by Decedent and thus did not bind

McConaghy.    However, the First Franklin mortgage was signed by both

Decedent and McConaghy, and was binding on her.




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J-A06041-18


      When Countrywide granted its mortgages in November, 2006, as part

of the deal, it paid off the prior mortgages so it would have a first lien.

McConaghy was not bound by the fraudulent IndyMac mortgage, and thus

derived no benefit from Countrywide’s satisfying that mortgage. However,

McConaghy was bound by the First Franklin mortgage and thus, when

Countrywide satisfied that mortgage, it removed a $336,000 obligation from

McConaghy.     Clearly, she was enriched, and it would be unjust for her to

retain this windfall.

      As this Court stated in Gutteridge v. J3 Energy Grp., Inc., 165 A.3d

908 (Pa. Super. 2017) (en banc),

      [t]he elements of unjust enrichment are benefits conferred on
      [one party] by [the other party], appreciation of such benefits by
      [one party], and acceptance and retention of such benefits under
      such circumstances that it would be inequitable for [one party]
      to retain the benefit without payment of value. Whether the
      doctrine applies depends on the unique factual circumstances of
      each case. In determining if the doctrine applies, we focus not
      on the intention of the parties, but rather on whether the [one
      party] has been unjustly enriched.

           To sustain a claim of unjust enrichment, a claimant must
      show that the party against whom recovery is sought either
      wrongfully secured or passively received a benefit that it would
      be unconscionable for her to retain.

Id. at 917 (citations and quotation marks omitted).

      The instant case is quite similar to our recent decision in Infante v.

Bank of America, N.A., 130 A.3d 773 (Pa. Super. 2015).          In that case,

Infante’s husband purchased a home, with the aid of a loan, secured by a



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2004 mortgage, before they were married.          Following their marriage,

Infante’s husband transferred title of the property to himself and Infante as

tenants by the entirety. Thus, Infante was subject to the 2004 mortgage.

In 2008, Infante’s husband, acting alone, obtained a loan, secured by a

mortgage from Countrywide, and used it to pay off the 2004 loan/mortgage.

The 2008 mortgage was later assigned to Bank of America (BOA). Infante

did not sign the 2008 mortgage.     Following her husband’s death, Infante

learned of the 2008 mortgage and sought a declaratory judgment that the

mortgage’s lien against the property was invalid.       BOA counterclaimed

seeking reformation of the mortgage and equitable subrogation and an

equitable lien. Following a nonjury trial, the trial court denied reformation

but granted BOA’s request for equitable subrogation and an equitable lien.

On appeal, this Court agreed, finding that BOA had a valid claim for

equitable subrogation and an equitable lien because, inter alia, Infante

“would be unjustly enriched if she were permitted to retain the property

without bearing responsibility for the amount of the 2004 mortgage.” Id. at

780.

       The parallels are obvious.    As Infante was subject to the 2004

mortgage, so was McConaghy bound by the First Franklin mortgage. As BOA

paid off the 2004 mortgage, so too did Countrywide pay off the First Franklin

mortgage.    As BOA was equitably subrogated to the rights of the 2004




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mortgagee, and granted an equitable lien, so too is BNY entitled to the same

equitable relief.

      Because BNY is seeking equitable relief, it is subject to doctrines that

apply to equity. One of these is unclean hands. “The doctrine of unclean

hands requires that one seeking equity act fairly and without fraud or deceit

as to the controversy in issue.”   Terraciano v. Com., Dep't of Transp.,

Bureau of Driver Licensing, 753 A.2d 233, 237–38 (Pa. 2000) (citations

omitted).

      The trial court denied equitable subrogation and an equitable lien

because it held that Countrywide acted fraudulently in this matter. That was

error. Clearly, Decedent’s actions were fraudulent. However, as a matter of

law, while Countrywide’s actions may have been negligent, possibly grossly

negligent, they were not fraudulent.         Countrywide was suckered by

Decedent, as was McConaghy. See Shapiro v. Shapiro, 204 A.2d 266, 268

(Pa. 1964) (“Application of the unclean hands doctrine is confined to willful

misconduct which concerns the particular matter in litigation.”).

      As a subset of its main argument, BNY also claims that the trial court

erred in denying BNY equitable remedies for paying the real estate taxes and

insurance on the home since November 2006. Appellant’s Brief at 36. We

have acknowledged, supra, that but for the Countrywide mortgages

satisfying McConaghy’s obligation to First Franklin, McConaghy would have

been solely responsible, upon Decedent’s death, for mortgage payments to


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First Franklin.     However, McConaghy does not live in the home and has

derived little benefit from BNY’s insurance and tax payments. Thus, we find

that the trial court did not abuse its discretion in denying BNY’s equitable

counterclaims for reimbursement.

        Accordingly, we affirm the denial of reimbursement for payment of real

estate taxes and insurance.       We vacate the trial court’s holding that the

unclean hands doctrine bars relief to BNY to remedy McConaghy’s unjust

enrichment.        We grant an equitable lien to BNY in an amount to be

determined on remand.6

        Judgment affirmed in part and vacated in part. Case remanded for the

entry    of   an   order   consistent   with     this   memorandum.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2018



6 In its Opinion and Order dated May 18, 2017, the trial court referenced the
very substantial counsel fees McConaghy sustained. It is not clear whether
this factored into the decision to deny an equitable lien to BNY. On remand,
the trial court should determine if the amount claimed by BNY of
$336,020.65 should be reduced by some or all of the counsel fees claimed.



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