                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 05 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



In the Matter of: WILLIAM A.                     No. 10-56185
MCINTYRE,
                                                 D.C. No. 2:09-cv-02327-ABC
              Debtor,

                                                 MEMORANDUM *
WILLIAM A. MCINTYRE; et al.,

              Appellants,

  v.

BNC MORTGAGE, LLC, FKA BNC
Mortgage, Inc.,

              Appellee,

AMERICAN HOME MORTGAGE
SERVICING, INC., successor in interest
to BNC Mortgage, LLC, FKA BNC
Mortgage, LLC,

              Movant - Appellee,

  and

ALFRED H. SIEGEL, Chapter 7 Trustee,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
              Trustee.



                   Appeal from the United States District Court
                       for the Central District of California
                 Audrey B. Collins, Chief District Judge, Presiding

                     Argued and Submitted February 14, 2012
                              Pasadena, California

Before: PREGERSON and BEA, Circuit Judges, and PRATT, Chief District
Judge.**

      Appellants William McIntyre, Gail Johnson-McIntyre, and Tshombe

Sampson appeal the district court’s decision affirming the bankruptcy court’s grant

of an equitable lien against McIntyre and Johnson-McIntyre’s real property and the

bankruptcy court’s grant of priority to that equitable lien over Sampson’s

unrecorded lien for attorneys’ fees. The bankruptcy court granted an equitable lien

in favor of assignee BNC Mortgages (predecessor in interest to appellee American

Home Mortgages, Inc., or “AHMSI”) and ordered the lien recorded, because BNC

had erroneously, but in good faith, repaid the note secured by deed of trust on

McIntyre and Johnson-McIntyre’s real property. Because the parties are familiar




       **
             The Honorable Robert W. Pratt, Chief District Judge for the U.S.
District Court for Southern Iowa, sitting by designation.

                                          2
with the facts of the case, we repeat them here only as necessary to explain our

decision. We affirm.

      First, AHMSI is entitled to an equitable lien. Under California law, a party

is entitled to an equitable lien “when a lender advances money which benefits the

land of another in mistaken reliance upon an imperfect mortgage or lien upon that

land.” Jones v. Sacramento Sav. & Loan Ass’n, 248 Cal. App. 2d 522, 530 (1967).

Here, BNC benefitted McIntyre and Johnson-McIntyre’s land by paying off the

previous note secured by deed of trust as part of an unconsummated sale

transaction; BNC made the payment because BNC thought it would have a

securitized interest in the land at the end of the sale. As McIntyre and Johnson-

McIntyre received a windfall when their note secured by deed of trust was paid off

and BNC took nothing, an equitable lien for BNC’s successor-in-interest is

appropriate under California law.

      Second, the district court correctly held that AHMSI’s recorded equitable

lien has priority over Sampson’s unrecorded lien. First, the bank is a bona fide

purchaser for value, first recorded and with notice (through the recorded lis

pendens) only of Johnson-McIntyre’s interest in the property, not of Sampson’s

claim. As a secondary ground, AHMSI is entitled to priority by equitable

subrogation to the Note and Deed of Trust of lender Ameriquest, which was paid


                                          3
off by BNC’s $205,000 payment. In cases such as this one, California permits a

later lienholder to stand in the shoes of the previous lienholder and retain the same

priority as the previous lienholder. See Han v. United States, 944 F.2d 526, 529

(9th Cir. 1991).

      None of Appellants’ other miscellaneous arguments are applicable here and

thus do not warrant reversal. In addition, as Appellants have brought no claim or

counter-claim against AHMSI or its predecessor in interest, Appellants are not here

entitled to damages.

      AFFIRMED.




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