                                                                                                     FILED
                                                                                            COURT OF APPEALS
                                                                                                   ONI SPS 1 i1

                                                                                           UE 5 JUL 21    AM 9: 28

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                                                                                           BY
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   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


                                           DIVISION II


AMERICA' S CREDIT UNION f/n/ a FORT                                            No. 46200 -1 - II
LEWIS COMMUNITY FEDERAL CREDIT
UNION,


                                  Respondent,
                                                                       UNPUBLISHED OPINION
       V.




COUNTRYWIDE HOME LOANS, INC.,


                                   Appellant,




 CHARLES D. SHELTON and KATHRYN E.
 SHELTON, husband and wife; MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC.., as nominee for Countrywide Home
Loans, Inc.; LIENHOLDERS 1 through 10,


                                   Defendants.




      BJORGEN, A. C. J. —     In 2012, Charles and Kathryn Shelton defaulted on a loan from


America'   s   Credit Union (ACU),   formally known as Fort Lewis Community Federal Credit

Union. The default     prompted   ACU to file   suit   to   foreclose its   mortgage on real   property the
No. 46200 -1 - II



Sheltons had pledged as security for the loan. That suit prompted a dispute between ACU and

Countrywide Home Loans Inc. ( Countrywide)      as to which lending institution had the senior

secured interest in the Sheltons' property, and the parties filed cross motions for summary

judgment on the issue. ACU argued it had the senior interest based on Washington' s recording

statute, RCW 65. 08. 070. Countrywide argued that the doctrine' of equitable subrogation gave it a


secured interest senior to ACU' s mortgage, because Countrywide had made a refinancing loan to

the Sheltons; which paid off another, prior loan that was secured by a recorded deed of trust

senior to ACU' s mortgage. The trial court resolved the cross motions for summary judgment by

denying Countrywide' s, granting ACU' s, and declaring ACU to have the senior secured interest

in the Sheltons' property

        Countrywide appeals, contending that the trial court erred by ( 1) refusing to apply the

doctrine of equitable subrogation and ( 2) refusing to equitably subrogate it to the total value of

the refinancing loan it made to the Sheltons. We agree with Countrywide that it was entitled to

equitable subrogation, giving it the senior secured interest on the Sheltons' real property. But we

disagree that Countrywide was entitled to equitable subrogation on any amount greater than the

then -existing amount owed on the note secured by the deed of trust originally senior to ACU' s

mortgage. We therefore reverse the trial court' s grant of summary judgment in favor of ACU to

the extent it held that Countrywide was not equitably subrogated to the senior deed of trust and

remand with orders to enter summary judgment for Countrywide declaring it to be equitably

subrogated to Bank of America' s ( BOA) senior deed of trust on that property securing a debt of

 87, 255. 38.




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No. 462.00 -1 - II



                                                                FACTS


          In 1994, the Sheltons borrowed approximately $98, 000 from Knutson Mortgage

Corporation. The loan was secured by a deed of trust on property the Sheltons owned in DuPont,

Washington!          BOA later acquired the note for the loan, as well as the associated deed of trust.


          In 2000, the Sheltons again borrowed, this time from ACU. They opened a home equity

revolving line of credit secured by a mortgage on their DuPont property. This mortgage secured

the Sheltons' debt up to $ 40, 000 and noted that ACU' s loan to the Sheltons " will be of a

revolving nature and may be made, repaid, and remade from time to time" because the parties

    coritemplate[ d] a series of advances to be secured by" the mortgage. Clerk' s Papers ( CP) at 11.

          In 2002, the Sheltons refinanced their DuPont property with Countrywide. This

refinancing loan was also secured by a deed of trust on the DuPont property.

          The Sheltons used money from the refinancing loan to pay BOA the balance of the

Knutson loan, $ 87, 225. 38. As part of the transaction, BOA reconveyed the deed of trust granted


by the Sheltons to secure the original Knutson loan to Countrywide.

          The Sheltons            also used    the refinancing loan to pay ACU the $ 38, 934. 93 balance then -



existing on the home equity line of credit. However, neither the Sheltons nor Countrywide asked

ACU to close the line of credit, cancel its mortgage, or agree to subordinate its mortgage as part


of the transaction. Accordingly, the line of credit remained open and the Sheltons continued to

draw on it, owing at the time of ACU' s complaint over $30, 000 to ACU. The ACU mortgage




1
    A deed   of   trust "`   is   a   form   of a mortgage."'    Bain   v.   Metro.   Mortg. Grp.,   Inc., 175 Wn.2d 83,
92, 285 P. 3d 34 ( 2012) ( quoting 18 WILLIAM B. STOEBUCK & JOHN W. WEAVER, WASH.
PRACTICE: REAL ESTATE: TRANSACTIONS § 17.3, at 260 ( 2d ed. 2004)).

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No. 46200 -1 - II



also remained and, given the release of BOA' s deed of trust due to the refinancing, ACU had

become the senior secured interest in the DuPont property.

        In 2012, the Sheltons defaulted on the loan from ACU.2 ACU filed a complaint seeking,

as relevant    here, ( 1)   a   judgment for the balance      of   the loan to the   Sheltons, ( 2) "   an order




adjudging [ ACU' s] mortgage to be the first and paramount lien" on the DuPont property and

extinguishing any other interest, claim, and encumbrance on the property, and ( 3) an order

allowing   a   foreclosure       sale   to satisfy ACU'   s mortgage.    CP   at   4. The complaint named

Countrywide as a party with.an interest in the DuPont property junior to ACU' s.

        Countrywide answered, contending that ACU did not have the senior interest in the

DuPont property. In its later motion for summary judgment, Countrywide contended that, under

the doctrine of equitable subrogation, it stepped into BOA' s shoes and could enforce the senior


deed of trust that had secured the Knutson loan. In its motion, Countrywide also contended that


the trial court should subrogate it to a first position security interest on the entirety of the

refinancing loan, meaning essentially that it would step into the shoes of both BOA and ACU.

        ACU filed its motion for summary judgment, contending that the trial court should not

apply the doctrine of equitable subrogation. ACU argued that Washington' s recording statute

gave it the senior secured interest and that the court should not depart from that result for two

reasons. First, ACU contended that equitable subrogation existed to prevent unjust enrichment


and the value of the DuPont property sufficed to pay the first and second position secured

interests, meaning that no unjust enrichment occurred. Second, ACU contended that equitable




2 The Sheltons had refinanced again in 2006. Neither party contends that this refinancing
affected the issues before us, and we do not address that refinancing further.
3 RCW 65. 08. 070.

                                                              M
No. 46200 -1 - II



subrogation, as an equitable doctrine, should not apply because it had not acted inequitably.

With regard to Countrywide' s request that the trial court equitably subrogate it to the full extent

of the refinancing loan, ACU contended that Countrywide could not do anything other than step

into BOA' s shoes, meaning the trial court could only subrogate it to first position on the value of

the note at the time of the refinancing.

          The trial court granted ACU' s motion for summary judgment and denied Countrywide' s.

Countrywide appeals.


                                                       ANALYSIS


                                                I. STANDARD OF REVIEW


          We review a trial court' s grant of summary judgment de novo, performing the same

inquiry   as   the trial court.   Lakey   v.   Puget Sound     Energy,     Inc., 176 Wn.2d 909, 922, 296 P. 3d 860


 2013). "   Summary judgment is appropriate ` if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine material issue as to any material fact and that the moving party is entitled to a judgment

as a matter of     law."' Atherton Condo. Apt. -Owners Ass' n Bd. of Dirs.                v.    Blume Dev. Co., 115


Wn. 2d 506, 516, 799 P. 2d 250 ( 1990). We view the evidence and all reasonable inferences


drawn from that evidence in the light most favorable to the nonmoving party for purposes of

determining whether a material issue of fact exists. Lakey, 176 Wn.2d at 922.

          We review de novo the propriety of equitable relief, such as the application of the

doctrine    of equitable subrogation.          Bank   ofAm.,   N.A.   v.   Prestance   Corp.,   160 Wn.2d 560, 564,


160 P. 3d 17 ( 2007).




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No. 46200 -1 - II



                                          II. EQUITABLE SUBROGATION


         Washington has       adopted    in full the Restatement ( Third) of Property: Mortgages section


7. 6 ( 1997).   Columbia Cmty. Bank v. Newman Park, LLC, 177 Wn.2d 566, 583, 304 P. 3d 472

 2013); Prestance     Corp., 160 Wn.2d at 561- 62. That section of the Restatement ( Third) of

Property, which describes equitable subrogation, provides that

          a) One who fully performs an obligation of another, secured by a mortgage,
         becomes by subrogation the owner of the obligation and the mortgage to the extent
         necessary to      prevent    unjust     enrichment.               Even though the performance would
         otherwise discharge the obligation and the mortgage, they are preserved and the
         mortgage retains its priority in the hands of the subrogee.
          b) By way of illustration, subrogation is appropriate to prevent unjust enrichment
         if the person seeking subrogation performs the obligation:

           4) upon a request from the obligor or the obligor' s successor to do so, if the person .
          performing was promised repayment and reasonably expected to receive a security
          interest in the real estate with the priority of the mortgage being discharged, and if
          subrogation will not materially prejudice the holders of intervening interests in the
          real estate.




RESTATEMENT ( THIRD) OF PROPERTY,                 supra, §         7. 6.


         Under Restatement ( Third) ofProperty section 7. 6, equitable subrogation does two things

when a refinancing lender pays off a note secured by a mortgage in real property. First,

equitable subrogation preserves the mortgage even though the refinancing pays the note the

mortgage secures.         RESTATEMENT ( THIRD)                OF   PROPERTY,    supra, §   7. 6( a), ( b). Second, equitable


subrogation assigns that mortgage to the refinancing lender for enforcement. RESTATEMENT

 THIRD)   of    PROPERTY,    supra, §   7. 6(   a), (   b).    Simply put, equitable subrogation allows a

refinancing lender to step into the shoes of the original lender, securing the refinancing loan to

the   same extent   the   original   lender'   s mortgage secured             its loan   and   giving the refinancing
No. 46200 -1 - II



lender the same creditor priority the original lender possessed. Columbia Cmty. Bank, 177

Wn.2d   at   573;   see   RESTATEMENT ( THIRD)        OF   PROPERTY,   supra, §   7. 6 cmt. a.


        Equitable      subrogation " remains ` an equitable       remedy' ... `    founded in the facts and


circumstances of each particular case."'          Columbia Cmty. Bank, 177 Wn.2d at 581 ( quoting

RESTATEMENT ( THIRD) OF PROPERTY,              supra, §     7. 6 cmt. a; Credit Bureau Corp. v. Beckstead, 63

Wn.2d 183, 186, 385 P. 2d 864 ( 1963)).           Nevertheless, Washington' s Supreme Court has twice in


recent years stated that policy reasons and judicial economy require a liberal application of the

doctrine of equitable subrogation. Columbia Cmty. Bank, 177 Wn.2d at 580- 81; Prestance, 160

Wn.2d at 580- 82.


A.      Subrogation to Bank of America' s Secured Debt of $87, 225. 38


        We hold that the trial court erred when it denied Countrywide' s motion for summary

judgment on the issue of equitably subrogating it to BOA' s first position mortgage on the

 87, 225. 38 Countrywide paid BOA in the refinancing.

        No genuine issues of material fact exist on the elements of equitable subrogation as


defined in Restatement ( Third) ofProperty section 7. 6 and adopted by Washington' s Supreme

Court. Countrywide performed the Sheltons' obligation to pay BOA, an obligation secured by

the deed of trust on the DuPont property. Subrogation is appropriate to prevent unjust

enrichment. Countrywide performed for the Sheltons at their request, Countrywide was


promised repayment by the Sheltons; and Countrywide reasonably expected to receive a security

interest in the     real estate with   the priority   of   the BOA   mortgage.    Subrogating Countrywide to

BOA' s status as the senior secured creditor on the obligation owed at the time of the refinancing

will not prejudice ACU; it remains the junior secured creditor in the exact position it would have


been in but for Countrywide' s payment of the loan from BOA. The facts here are exactly the



                                                              7
No. 46200 -1 - II



type   where equitable subrogation " should"          apply. Prestance, 160 Wn.2d               at   581.   Viewing the

evidence in the light most favorable to the nonmoving party, summary judgment for

Countrywide was appropriate, and the trial court erred by refusing to grant it.

          Nevertheless, ACU argues that equitable subrogation remained unavailable to


Countrywide for two reasons. First, ACU contends that equitable subrogation, as a derogation of


the recording      statute, should   be limited to "[   e] xtreme [   f]actual   [ c]   ircumstances."      Br. of Resp' t at

8.   Second, ACU contends that a refusal to apply the doctrine of equitable subrogation would not

unjustly enrich it, because the DuPont property has sufficient value. to satisfy both the first and

second position liens. We find both of these arguments unpersuasive.


          ACU' s first argument is at odds with the text of Restatement ( Third) ofProperty section

7. 6 and statements by our Supreme Court in Prestance and Columbia Community Bank. First,

while ACU would limit equitable subrogation to cases involving " misrepresentation, mistake,

duress,   undue    influence   or   deceit,"   Brief of Respondent at 11, Restatement ( Third) ofProperty

section 7. 6( b)( 4) provides that equitable subrogation is appropriate under the factual


circumstances of a refinancing transaction and does not condition equitable subrogation on the

presence of the types of inequities to which ACU would limit it. Second, the Supreme Court has


rejected ACU' s premise that equitable subrogation runs against Washington' s recording statute.

The court has adopted the view that equitable subrogation " maintains the proper scheme and the


original priorities" by ensuring that junior creditors remain junior creditors. Prestance, 160

Wn.2d     at   564- 65, 570- 71.    Thus, equitable subrogation acts in conformity with, not in derogation

of, the   statutory recording       scheme.
No. 46200 -1 - II



        ACU' s second argument fails, because it misunderstands the nature of the unjust


enrichment avoided by applying the doctrine of equitable subrogation in mortgage refinancing

transactions. The refinancing pays off the former senior creditor, which, without subrogation,

would release its security interest and promote the former junior creditor. This promotion, which'

the junior creditor did nothing to bring about, is " an unwarranted and unjust windfall."

RESTATEMENT ( THIRD) OF PROPERTY,        supra, §   7. 6 cmt. a; Columbia Cmty. Bank, 177 Wn.2d at

575. The promotion itself is the unjust enrichment equitable subrogation is intended to avoid,


not the consequent possibility of financial gain. See RESTATEMENT ( THIRD) OF PROPERTY, supra,

  7. 6 cmt. a.


B.      Subrogation to ACU' s Secured Debt of $38, 934. 93


        We disagree, however, with Countrywide' s contention that it is also entitled to equitable


subrogation to the first position lien on the $ 38, 934. 93 it paid ACU as part of the refinancing

loan to the Sheltons. The basis for Countrywide' s belief that it is entitled to equitable


subrogation on this amount is not apparent from its briefing, but Countrywide appears to ask us

either to expand the amount secured by BOA' s original senior interest or to subrogate

Countrywide to ACU' s secured interest, displacing ACU. Neither is appropriate.

        To the extent that Countrywide asks us to subrogate it to BOA' s secured interest on an


amount greater than that secured by the deed of trust, we must reject the request. In the context

of mortgage refinancing, equitable subrogation allows the refinancing lender to step into the

shoes of the senior creditor " to the extent of the former lienholder' s interest at th[ e] time" of the


refinancing. Columbia Cmty. Bank, 177 Wn.2d at 575; RESTATEMENT ( THIRD) OF PROPERTY,

supra, §   7. 6 curt. e. Doing otherwise would prejudice the junior creditors, who did not bargain to

be a junior to anything other than the original senior interest. See RESTATEMENT ( THIRD) OF



                                                     0
No. 46200 -1 - II



PROPERTY,   supra, §   7. 6   cmt. e.   Subrogating Countrywide to any amount greater than the

 87, 225. 38 owed to BOA would impermissibly prejudice ACU. RESTATEMENT ( THIRD) OF

PROPERTY,   supra, §   7. 6( e).


        To the extent that Countrywide asks that we equitably subrogate it to ACU' s mortgage,

we likewise reject the request based on the facts of this case. The Sheltons had a revolving credit

mortgage with ACU. The terms of the mortgage contemplate that the Sheltons would borrow,


pay down their balance, borrow again, and so on. Given that state of affairs, Countrywide

needed to do something to alert ACU to its position that it, Countrywide, was equitably

subrogated to the full, continuing extent of the refinancing loan from ACU. Without that, ACU

had no notice that its security for the continuing home equity line of credit was impaired and that

it should take action to avoid loss to itself.


        The record shows only that Countrywide, in a letter, mentioned a reconveyance fee. The

evidence also shows that reconveyance fees were irrelevant to the ACU mortgage and that ACU


received no request to cancel the mortgage. Under those facts, we cannot say that Countrywide

took the steps necessary to allow ACU to protect itself. Equitably subrogating Countrywide to

ACU' s secured interest, which would displace ACU from security it believed it had, would be

inequitable. Cf. Columbia Cmty. Bank, 177 Wn.2d at 581 ( quoting RESTATEMENT ( THIRD) OF

PROPERTY,   supra, §   7. 6 cmt. a; Credit Bureau Corp., 63 Wn.2d at 186; People' s Say. Bank v.

Bufford, 90 Wn.2d 204, 208, 155 P. 1068 ( 1916)).


                                                CONCLUSION


        We reverse summary judgment in favor of ACU to the extent the trial court held that

Countrywide was not equitably subrogated to BOA' s senior deed of trust on the Sheltons'

DuPont property. We remand with orders to enter summary judgment for Countrywide declaring


                                                       10
No. 46200- 1- I1



it to be equitably subrogated to BOA' s senior deed of trust on that property securing a debt of

 87, 255. 38.


           A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,


it is so ordered.




                                                      E         TJT
                                                                       140- c
                                                          JRGr:
 We concur:




 LrE, J.




 SUTTON, J.




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