J-A29036-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NORTHWEST SAVINGS BANK,                  :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  Appellant              :
                                         :
           v.                            :
                                         :
FIDELITY NATIONAL TITLE INSURANCE        :
COMPANY AND THE CLOSING                  :
COMPANY OF PA                            :           No. 451 WDA 2016

              Appeal from the Order entered December 23, 2015
               in the Court of Common Pleas of Butler County,
                        Civil Division, No(s): 13-11107

BEFORE: DUBOW, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED JANUARY 20, 2017

     Northwest Savings Bank (“Northwest”) appeals from the Order

granting the Cross-Motion for Summary Judgment filed by Fidelity National

Title Insurance Company (“Fidelity”), and denying Northwest’s Motion for

Partial Summary Judgment. We affirm.1



1
  As this appeal was filed from an Order dismissing only Counts I and II of
the Amended Complaint, it appeared that Fidelity’s counterclaim remained
pending, along with Northwest’s claims against The Closing Company of PA
(“TCCPA”). Therefore, a Rule to show cause as to why this appeal should
not be quashed as interlocutory was issued. Northwest responded to the
Rule, and indicated that the Order appealed from disposed of Fidelity’s
counterclaim. Northwest further indicated that it would enter a default
judgment against TCCPA. Northwest thereafter submitted proof to this
Court of the May 5, 2016 default judgment taken against TCCPA. Having
been presented with satisfactory evidence of finality, this court discharged
the Rule on May 10, 2016, on the basis that the December 23, 2015 Order
appealed has been rendered final and appealable. Accordingly, Northwest’s
prematurely taken appeal has been perfected. See Johnston the Florist,
Inc. v. Tedco Constr. Corp., 657 A.2d 511, 513 (Pa. Super. 1995) (holding
that, when an appeal has been filed prior to the entry of judgment,
J-A29036-16


      In its Opinion, the trial court set forth the relevant factual and

procedural history, which we adopt for the purpose of this appeal. See Trial

Court Opinion, 5/9/16, at 1-4.

      On appeal, Northwest raises the following issues for our review:

      1. Whether the [trial court] properly interpreted the title
         insurance policies at issue and relevant law to conclude that
         Northwest “assumed” or “agreed” to pre-existing mortgages
         intending to be paid off[?]

      2. Whether the [trial court] properly used a “balancing of the
         equities” approach in contract interpretation to assert that
         [Northwest] consented to the existence of priority mortgage
         liens in a case requiring contract interpretation[,] and in light
         of the fact that TCCPA committed fraud solely within the
         scope of an authorized title insurance agent?

      3. Whether the [trial court] erred as a matter of law by failing to
         consider the subsequent and intervening fraud of Fidelity’s
         title insurance agent in connection with the closing protection
         letter issued by Fidelity?

      4. Whether the [trial court] erred by concluding that no material
         facts remain in dispute, including a conclusion regarding an
         intent by Northwest to assume or agree to pre-existing
         mortgages?

Brief for Appellant at 2-3.

      As Northwest’s first and second issues are related, we will address

them together. In its first issue, Northwest contends that, pursuant to the

plain language of the final Loan Policy of Title Insurance (“the Final Policy”)

issued to Northwest by Fidelity, through its title agent, TCCPA, Northwest

“was protected against [] defects in title, including any defect arising where

jurisdiction in appellate courts may be perfected after an appeal notice has
been filed upon the docketing of a final judgment).


                                  -2-
J-A29036-16


Northwest would not have the priority lien.” Id. at 16. Northwest argues

that the trial court erred by finding that Fidelity was not bound by the

language of the Final Policy, which, Northwest asserts, should indemnify it

“against the exact occurrence which arose” in this case.       Id.   Northwest

asserts that, in arriving at its conclusion that Northwest was not entitled to

coverage, the trial court incorrectly interpreted the Section 3(a) exclusions,

as set forth in the Final Policy. Id. Specifically, Northwest claims that the

trial court erred by determining that Northwest “assumed” or “agreed” to the

existing priority liens held by Citizens Bank of Pennsylvania (“Citizens”) and

Charter One (“Charter”), based on Northwest’s knowledge of the liens prior

to entering into the mortgage loan agreement with Thomas and Lisa

McIntyre for the refinancing of their home (“the McIntyre transaction”). Id.

at 16-17.

      Northwest argues that, in reaching its conclusion, the trial court

improperly concluded that an insured with knowledge of existing liens

unequivocally assumes or agrees to those liens.       Id. at 17.     Northwest

contends that the trial court’s conclusion is contrary to industry practice and

the holding and reasoning of American Sav. & Loan Ass’n v. Lawyers

Title Ins. Corp., 793 F.2d 780 (6th Cir. 1986), which, Northwest asserts, is

the   established standard for    the   interpretation of the    Section 3(a)

exclusions. Brief for Appellant at 17. Northwest contends that, in order to

exclude title coverage, “the prospective insured must specifically know the



                                  -3-
J-A29036-16


defects it wishes to assume and demonstrate some ‘degree of intent’ to take

the property, and title insurance, subject to these defects.” Id. at 18 (citing

Nationwide Life Ins. Co. v. Commonwealth Land Title Ins. Co., 2011

U.S. Dist. LEXIS 16446 (E.D. Pa. 2011). Northwest asserts that, where, as

in this case, there is mere negligence or innocent conduct of the insured,

title coverage should not be denied.         Brief for Appellant at 18, 21.

Northwest points to the holding in Beneficial Mut. Sav. Bank v. Stewart

Title Guar. Co., 36 F. Supp. 3d 537 (E.D. Pa. 2014), and claims that the

facts of that case are distinguishable from those in the instant case. Brief

for Appellant at 20 (arguing that “Northwest has unequivocally affirmed, and

documented throughout, that it intended to receive the first priority, and

sole lien[,] against the McIntyre [p]roperty by the refinancing loan.”).

      Northwest argues that “there are no documents in this case revealing

intent by Northwest to take anything less than the first priority mortgage”

and that “Fidelity has relied solely on the language of the Final Policy that is

ambiguous at best, and inapplicable under a proper analysis of Am[erican]

Sav. & Loan.” Id. Northwest contends that it “directed the title agent to

pay[ ]off Citizens and Charter[,] and to provide Northwest with the first

priority mortgage[,]” and “only accepted the issued Final Policy due to the

misrepresentation of Fidelity’s title agent removing the Citizens and

Charter[] liens from the exceptions in the [F]inal [P]olicy received after the

loan closing.” Id. at 20-21.



                                  -4-
J-A29036-16


     Northwest asserts that, despite acknowledging Northwest’s innocence,

the trial court erred by using a “balancing of the equities” approach to

determine that Northwest “was in the better position to assume the risk in

[the] transaction[,] and that the liens were not subject to coverage under

the Final Policy.” Id. at 21, 22. Northwest claims that “[t]he only conduct

identified by the [trial c]ourt remotely relevant to any ‘negligence’ by

Northwest was the fact that it forwarded the funds and payoff schedule to

TCCPA[,] directing how the loan funds were to be distributed[,] to ensure

that the proper parties received payment.” Id. Northwest argues that it is

“untenable to find that [this] conduct was in any way ‘improper’ much less

something beyond ‘mere negligence.’” Id. at 21-22.

     In its second issue, Northwest contends that, despite its determination

that both Northwest and Fidelity were largely blameless, the trial court erred

by granting summary judgment in favor of Fidelity, “despite the issuance of

a closing protection letter which indemnified [Northwest] if Fidelity’s agent

absconded with the proceeds.”      Id. at 23.   Northwest asserts that “[t]his

conversion was hidden from Northwest through the issuance of a Final Policy

that deleted the exceptions to coverage and represented the existing

mortgages to be paid.”       Id.     Northwest claims that the trial court

“committed a fundamental err[or] by resolving a question requiring strict

contract interpretation” by using a “balancing of the equities” approach. Id.

at 24.   Northwest argues that the trial court “compounded the error by



                                   -5-
J-A29036-16


failing to recognize the critical issue of TCCPA’s fraud, as the title agent,” in

“misappropriating the funds advanced by Northwest for closing.” Id.

(emphasis in original). Northwest points out that TCCPA was involved in the

McIntyre transaction both as the title agent and the settlement agent, and

contends that the trial court erred by determining that “all of TCCPA’s

misdeeds   were      done   in   its   role   as   a   settlement   agent,   such   as

misappropriating the loan funds, and [were not] attributable to its role [as]

Fidelity’s authorized title agent.”       Id. at 24-25.     Northwest asserts that

“TCCPA’s conduct, in stealing the [closing] funds and then issuing a title

policy to cover its tracks and avoid a claim under the closing protection letter

insured by Fidelity, straddle both the settlement agent and title agent roles.”

Id. at 25-26.        Northwest claims that, when removing the Citizens and

Charter liens from the Final Policy, TCCPA was acting in its role as authorized

title agent. Id. at 26. Northwest argues that Fidelity was permitted to use

the fraud of its own title agent to avoid liability under the closing protection

letter. Id. at 27.

      In its Opinion, the trial court addressed Northwest’s first and second

issues, set forth the relevant law, and concluded that the issues lack merit.

See Trial Court Opinion, 5/9/16, at 5-8. We agree with the reasoning of the

trial court and affirm on this basis as to Northwest’s first and second issues.

See id.




                                       -6-
J-A29036-16


      As Northwest’s third and fourth issues are related, we will address

them together. In its third issue, Northwest contends the trial court failed to

recognize that, but for the fraudulent issuance of the Final Policy by TCCPA,

Northwest would have had the opportunity to seek relief under the closing

protection letter issued by Fidelity.   Brief for Appellant at 28.   Northwest

asserts that TCCPA’s actions constitute subsequent and intervening acts of

fraud, which prevented Northwest from discovering the fraud or taking steps

to act under the closing protection letter. Id. at 29. Northwest claims that

the trial court’s failure to recognize this fact, and permit Northwest to

recover under the Final Policy or closing protection letter, constitutes

reversible error. Id. at 31.

      In its fourth issue, Northwest contends that the trial court failed “to

acknowledge the uncontroverted factual record identifying that Northwest

had no intent to assume and agree to the prior liens.” Id. at 32. Northwest

asserts that the trial court further erred by determining “that all misconduct

performed by TCCPA is solely attributable to its role as a settlement agent

without reference to the fraudulent title policy.” Id. Northwest claims that

discovery revealed genuine issues of material fact regarding instructions

provided by Fidelity to its title agents. Id. at 33. Northwest argues that the

evidence demonstrates that Fidelity routinely permitted the title agents to

perform obligations with loan proceeds.       Id.   Northwest contends that,

despite this evidence, the trial court “improperly determined that Fidelity did



                                  -7-
J-A29036-16


not authorize TCCPA to handle any funds[,] and that Fidelity could not be

liable for any action arising from that activity even though the closing

protection letter issued by TCCPA[,] as a Fidelity agent[,] expressly

indemnified against the closing agent absconding with settlement funds.”

Id.

      In its Opinion, the trial court addressed Northwest’s third and fourth

issues, set forth the relevant law, and concluded that the issues lack merit.

See Trial Court Opinion, 5/9/16, at 8-9. We agree with the reasoning of the

trial court and affirm on this basis as to Northwest’s third and fourth issues.

See id.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/20/2017




                                  -8-
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                                                                                         •
                                IN THE COURT OF CO:Ml\10N PLEAS BUTLER COUNTY, PENNSYLVANIA
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                     llI. NORTHWEST SAVINGS BANK,                                   CIVIL DIVISION
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                     I        FIDELITY NATIONAL TITLE
                     I        INSURANCE COMP ANY, THE
                     i        CLOSING COMPANY OF PA, and
                     "
                              JEFFREY A. GARBINSKI,                                                                w
                     !l
                      I,

                     !I. ,                                   Defendants .

                     :I
                     i:
                     r;'
                     I.      Yeager, J.                                                                                   May9,2016
                     I:
                      1,

                     !i
                     i
                     11                                         RULE 1925(a)OPINION

                     IIr
                     i              The Appellant, Northwest Savings Bank (hereinafter "Appellant" or "Northwest"),
                     '
                     i
                     i! appeals from the Order of Court under date December 23, 2015, simultaneously granting
                     II
                             Appellee's, Fidelity National Title Insurance Company (hereinafter "Appellee" or "Fidelity"),
                     ;1
                     i       Cross-Motion for Summary Judgment and denying Appellant's Motion for Partial Summary
                     i
                     ' Judgment.
                     I


                                             .
                     11             The facts and history of the instant matter are as follows. This case presents a claim
                     !1
                     I.      for damages in breach of contract as a result of a title insurance policy under date of

                     l       September 30. 2009, issued by the Appellee, Fidelity National Title Insurance Company, to
                     !1
                     :I the Appellant, Northwest Savings Bank
                     I
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                 11
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 'I            In September, 2009, Thomas Mcintyre and Lisa Mcintyre, owned property located in
 'I
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 11
 ! 11
  11    Butler County, Pennsylvania. Said property was, at that time, encumbered by two priority

 :I     mortgages. The first priority lien was held by Citizens Bank of Pennsylvania (hereinafter
 11
 II     "Citizens"). The second priority lien was held by Charter One (hereinafter "Charter").
 i!
 !1I    During the aforesaid time period, the Mclntyres agreed to enter into a mortgage loan
 '
 i
 I
 I
        agreement with Northwest, to refinance their property and extinguish the two existing priority

 i      lien holders. When entering into said agreement, Northwest was aware of the priority liens
 I:
. ij held by Citizens and Charter.
 I.
 i              On or about September 7, 2009, The Closing Company of Pennsylvania (hereinafter
 !I
 !
 I
        ''TCCPA"), acting as Fidelity's policy issuing agent', issued to Northwest a Commitment for
 11
 !i     Title Insurance with respect to the Mclntyres' refinance loan. The Conunitment for Title
 11
 11     Insurance required Northwest to discharge the Citizens and Charter priority loans for the
 I

 j forthcoming. title insurance policy to become effective.
 I


                At some time subsequent to the issuance of the aforesaid Conunitment for Title



 11.    ~:::       :o::::f:::·::::~: ~o:::.~:.::d~::::::ti::::.
        Citizens and Charter priority loans. Fidelity issued no instructions to TCCP A regarding the
 !I     disbursement or transference of funds in satisfaction of the priority liens. Fidelity made no
 II.
        promises that Fidelity, or any agent of Fidelity, would accept and disburse funds in
 I!
 I      satisfaction of the priority liens held by Citizens and Charter.
 j:

 11---
 11

   I The agency agreement entered into between TCCPA and Fidelity limits the appointment of TCCPA "solely to
 1 countersign and issue title insurance commitments, binders, guarantees, endorsements, title insurance policies
 !I ... "
        Issuing Agent Agreement at§ I, Oct, 31, 2002. Further, the agreement specifically disallows TCCPA to
 I "[r]eceive funds including escrow, settlement or closing funds, in the name of [Fidelity], but shall receive funds
 I solely in [TCCPA'sJ name ... " Id. at§ 2(B)(6).


                                                            2
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                             e                                        e
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                On or about September 20, 2009, TCCP A, as the policy issuing agent for Fidelity,
 !i
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 !:I     issued a Loan Policy of Title Insurance (hereinafter "Policy") to Northwest, without any
                                                                                                .
 I       exceptions for the priority liens of Citizens and Charter. At some point subsequent to the

i issuance of said Policy, Northwest was made aware that TCCP A did not disburse or transfer
!        the funds forwarded to TCCP A for satisfaction of the priority liens of Citizens and Charter.
!
l
         Rather, Jeffrey Garbinsk.i, an officer ofTCCPA, misappropriated the funds. As a result of

 ij said misappropriation, Citizens and Charter, the priority lienholders, were not paid off.
 '·
 ii             In early 2013, Citizens and Charter commenced foreclosure actions against the

 i Mclntyres' property. Because Northwest is not a priority lienholder, a demand was made by
 i Northwest against Fidelity to protect it from any loss that may be suffered by Northwest as a
 11



 !.      result of the foreclosure actions of Citizens and Charter. On or about May 29, 2013, Fidelity

         denied coverage and refused to acknowledge any indemnification of Northwest under the
 i1

 !I      Policy. As a result, this action was commenced by Northwest in breach of contract

    (I          Upon the close of discovery, the parties filed cross motions for Summary Judgment.
    i .
    11   See Appellant's, Northwest Savings Bank, Motion for Partial Summary Judgment under date
    Ii
    11   of July 31, 2015; and Appellee's, Fidelity National Title Insurance Company, Opposition to
    !1
    !'
    r
         Plaintiffs Motion/or Partial Summary Judgment and Fidelity's Cross-Motion/or Summary
    I


    !    Judgment under date of August 31, 2015. Following argument on said Cross-Motions, the

 J1      Court issued an Order and corresponding Memorandum Opinion under date of December 23,

 i       2015, simultaneously granting Appellee's, Cross-Motion for Summary Judgment and denying

 11 Appellant's Motion for Partial Summary Judgment. See Memorandum Opinion and Order of
 lj                          .
 I· Court under date of December 23, 2015.
 I
.I

!1
ij

Ii                                                      3

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    l
     !I
    ii             Appellants subsequently filed a Motion for Reconsideration on or about January 4,
    ;I:1
    :I
    !I     2016, which this Court denied after an argument on said Motion for Reconsiderationon

    I!     March 7, 2016. See Appellant's Motion/or Reconsideration under date of January 4, 2016;
    1.
    !.     and Order of Court under date of March 7, 2016. As a result, Appellants filed a Notice of
    ,,                                                                                                        I
                                                                                                              ;
    i      Appeal to the Superior Court of Pennsylvania March 29, 2016, with respect to the Order of          !'




    I      Court under date of December 23, 2015. See Notice of Appeal under date of March 29, 2016.

    \I             Upon receipt of said Notice of Appeal to the Superior Court of Pennsylvania, on or
    !JI•
    i
    I! about March 28, 2016, in accordance with Rule 1925(b) of the Pennsylvania Rules of

    !ilj   Appellate Procedure, this Court entered an Order of Court wherein the Appellant was directed
    ,.
    ,1 to file ofrecord and serve upon the undersigned trial judge a Concise Statement of the Matters
    1!n
    ij Complained of on Appeal no later than twenty-one (21) days from the date of the Order of
 I
 !1 Court. See Order of Court under date of March 2g, 2016.
    !,
    11
                    On or about April 15, 2016, the Appellant, Northwest Savings Bank, filed a Concise
    li
    1,1    Statement of the Matters Complained of on Appeal pursuant to the Pennsylvania Rules of
 i
i          Appellate Procedure. The Appellant avers that this Honorable Court erred in the following

1;         ways:
l'                 1.
                                                                                                              I
L,.                       The Court erred in interpreting the title insurance contract at issue and by        I
    '                     concluding that Northwest "Assumed or Agreed" to the pre-existing mortgages         I·
                                                                                                              I

11
I                  2.
                          which were intended to be paid off in the transaction.
                          The Court erred by engaging in a "balance of the equities" analysis in a case
                                                                                                              I
I
                          requiring contract interpretation.
.'                 3.     The Trial Court erred by failing to consider the subsequent and intervening fraud
I
I
                          of Fidelity's title agent and that material facts remain· in dispute.
I'

Ii                 This Court considers the Appellant's, Northwest Savings Bank, contentions as follows:
,
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j


                                                         4
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       I·
       I,I
       ij
      :i:i             To begin, as this matter was disposed of on cross-motions for summary judgment, the
      ,r
      ;,
      •I
      r        standard therefor is enumerated as follows:
      iI
      j
                       According to Rule 1035 .2(1) of the Pennsylvania Rules of Civil Procedure, a party
      I
      I'!.     may move for summary judgment as a matter of law after the relevant pleadings are closed.

      11       Specifically, the Rule states:   .
      !1
      'I
                              "[Wjhenever there is no genuine issue of any material fact as to a necessary
      iii                     element of the cause of action or defense which could be established by
  ii                          additional discovery or expert report ... ,,
. ll
      I'
      I!.I
      i!
      i!       Additionally, the Note to Rule 1035.2 states, "An example of a motion under subparagraph
      I'
     11        (1) is a motion supported by a record containing an admission. By virtue of the admission, no
      !I       issue of fact could be established by further discovery or expert report."
           I
           !
                       To this extent, summary judgment is appropriate only in cases that are clear and free
      I
      IiI!     from doubt: Red/and Soccer Club, Inc. v. Denartment of the Army and Dept. of Defense of
                                                             r

      r        the U.S., 696 A.~d 137 (Pa. 1997). Further, a court must view the record in the light most
      I
           I   favorable to the non-moving party and resolve all doubts concerning the existence of a
           I
      I        genuine material fact against the moving party. Id. Moreover, the Courts have held that for
      I

 .i
      I        the purposes of summary judgment, a material fact is one that directly affects the outcome of
     I
     j the case. Kenney v. Jeanes Hosp., 769 A.2d 492 (Pa.Super, 2001). As such, it is not the

     !         Court's function to decide any issues of fact, but to solely determine whether there is a
     1·
     !         genuine issue of material fact to be tried. McDonaldv. Marriott Corp., 564 A.2d 1296

     I         (Pa.Super. 1989).

     11
     I,
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                                                                        •
                The Court erred in interpreting the title insurance contract at issue and by
                concluding that Northwest "Assumed or Agreed" to the pre-existing mortgages
                which were intended to be paid off in the transaction.
11

                The first argument presented in both parties' motions for summary judgment, and
,.
11
        complained of on appeal by Northwest, concerns the alleged breach of contract by Fidelity in
iI
        failing to provide coverage under the issued Policy of title insurance. To maintain a breach of
l
I        contract claim, the Plaintiff must establish that a contract existed, a breach of that contract,
i,,
I'       and damages resulting therefrom. It is obvious to the Court that a contract existed. However,

I       the Court cannot find a breach of that contract.
I.
I                Fidelity cites to the "Exclusions" section of the issued Policy to support its Cross-
I
         Motion for Sununary Judgment. Sections 3(a) and 3(e) of the Policy exclude from coverage

         any encumbrances "created, suffered, assumed, or agreed to by [Northwest]," as well as any
l'I      encumbrances "resulting in loss or damage that would not have been sustained if [Northwest]

        . had paid value for the Insured Mortgage." An insured will be deemed to have "agreed" to an

!. encumbrance where said insured has "full knowledge ... of the extent and amount of the
1'
11
         claim against the insured's title." Am. Sav. & Loan As 'n v. Lawyers Title Ins. Corp., 793 F.2d
i!
I
         780, 784 (6th Cir. 1986). While the previously cited case does suggest that some culpability is
I
I        implied on the part of the insured in order for the carrier to be relieved of coverage, the

I
I
        principles of equity cannot dictate that the burden merely shifts to the insurance carrier where
I
l       the closing agent was fraudulent but the insured is innocent. In fact, such an insurance

        exclusion has previously been applied in cases concerning the fraud of closing agents. See

        Fidelity Nat. Title Ins. v. Consumer Home Mortgage, 272 A.D. 2d 512, 514 (stating that

        "[w]here ~ loss is caused by the fraud of a third party, in determining the liability as between

        two innocent parties, the loss should fall on the one who enabled the fraud to be committed.")



                                                           6
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    1!
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    ;I
    I:r;
    "
    I             Not only did Northwest know of the priority liens held by Citizens and Charter, it was
    I!
Ii
ii         the obligation of Northwest to pay-off the pre-existing mortgages to Citizens and Charter. In
ii
fl

ii!i       fact, that was the purpose of the loan funds. It is undisputed that it was not Fidelity who
!I
iiI' entrusted the funds to TCCPA as its agent; rather it was Northwest who forwarded the funds
I          to TCCPA, and directed TCCPA in the proper procedure to disburse or otherwise transfer the
!Iii
I'
,I         funds. This case presents no claim by Northwest for vicarious liability, and further Northwest
 i
I,I·       admits that TCCPA acted as a dual agent. Itis the creation of that fiduciary type relationship
::,I
ii by Northwest with TCCPA that excludes coverage under the Policy. The Court is being
Ii
'\
!iq        asked to determine the liability of two innocent parties and finds it only fitting that the party
'I
I          who enabled the fraud to take place should be charged with the loss therefrom. Northwest
11
!llI       was free to charge another with the duty of acting as Northwest's agent to transfer the monies,

!          but chose to entrust TCCP A.
l
11
l1                Additionally, with respect to Section 3(e), the theft of those proceeds forwarded to
'I.1
lj
                                                                                                                     !i
                                                                                                                     I
           TCCPA for satisfaction of the Citizens and Charter mortgages resulted in Northwest having                 I
!I
i!
           failed to pay value for the mortgage it acquired on the Mcintyres' property. If the funds had
                                                                                                                     l
                                                                                                                     I

iIi                                                                                                                  I
                                                                                                                     i
r          been properly transferred and full value had been paid for the mortgage on Mclntyres'                     !

11                                                                                                                   I·
           property, no hann would have resulted.
11

Ii
!
                  Thus; with no material fact in dispute, Fidelity did not breach the Policy by denying
I
           coverage thereunder. Unfortunately, Northwest seeks to be indemnified by a party that does
I                                                                                                              r
'i         not properly hold the fault or duty to do so.
l
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!
                                                                                                                   \ !
                                                                                                                     I




                                                            7
         !I
 .111,
         ii
· :!Ii        2.      The Court erred by engaging in a "balance of the equities" analysis in a case
     i'I              requiring contract interpretation.
     .j
     ii               Northwest's second complaint of this Court concerns a ''balance of equities" analysis.
     11
     !j       However, this Court only considered principles of equity insofar as it applied to the reasoning

     :!       behind why an insurer cannot be held liable for encumbrances known to the insured as a matter

     !I       o f.po 1·icy ·m contract ·interpretation.
                                                    ·   Whit e that reasoning,
                                                                          ·    as set fiort h b y case 1 aw, is
                                                                                                             · proviid ed

     \I above, it is not to suggest that this Court engaged in any analysis outside interpretation of the
     II:1     four comers of the Policy at issue.

     l
     .1i 3.           The Trial Court erred by failing to consider the subsequent and intervening fraud
     :II              of Fidelity's title agent and that material facts remain in dispute.
     I:
     I
     I                Appellant's final matter complained of first concerns the issue of TCCPA' s agency.
     t
     !.1,     This agency was analyzed at length in this Court's Memorandum opinion under date of
     11

     I
     !
              December 23, 2015. See Memorandum Opinion, p. 5, under date of December 23, 2015. That

     11       same analysis is laid out above. Through said analysis, and the record admission of
     II
     i
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              Northwest's counsel discussed below, it is this Court's determination that TCCPA did act as a
     !1
     !,.l     dual agent such that Fidelity cannot then be charged with liability in the creation of the
     !I:1     fiduciary type relationship as created by Northwest between Northwest and TCCP A.
     !I

     Ii               With respect to the second half of Northwest's third complaint and the explanation
     l!
     !!
     i1       provided therefor, while the scope of an agency not prescribed by writing is generally a jury
     l!I      question, Northwest's counsel clearly indicated on the record that this Court could find an
     I

     !        agency between TCCP A and Northwest. See Transcript of Proceedings, Motion for

 n Reconsideration, p. 20, under date of March 7, 2016. Counsel further stated that with respect to
 !I,,
 I'
 i            the monies and directions given to TCCPA by Northwest to pay off the priority loans of
 iI,          Citizens and Charter, TCCPA was, in fact, acting as Northwest's agent. Id.
 111.
 1;
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                                                                      •
                 This record admission by Northwest's counsel indicates that, contrary to Northwest's
 !I
 !1 matters complained of, there is not a genuine question of material fact concerning the dual
 ,,,,
 II              '

 l agency ofTCCPA. That a principle ofTCCPA then mishandled the funds cannot then be
 lJ; charged to Fidelity as there was, factually and by admission of counsel, an agency between
 'I111!
          Northwest and TCCPA for the transfer of those funds to pay off the priority lien holders, if only

 1   1 for that limited purpose.

 Ill             Thus, this Court finds that no genuine issue of material fact exists, and upon
 I                                                                              '


 JI       consideration of those agreed upon facts, Appellants', Northwest Savings Bank, Motion for
 !l
 j        Partial Summary Judgment was properly denied. Likewise, and for the reasons set forth               t.


 I hereinabove, the Appellee's, Cross-Motion for Summary Judg~ent was properly granted such
 l that Count I and Count JI ofAppellant's Complaint in Civil Action was properly dismissed
 !I       with prejudice:
                 As there has been no abuse of discretion and/or error of law in this Court's decision, the
 i
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          Appellant's, Northwest Savings Bank, appeal should be dismissed.
                                                                                                              ,.
                                                                                                              j


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                                                               Respectfully submitted,
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                                                                                                              I
                                                                                                              I

11

II                                                           ?/..?de(.(·~
                                                               S. Michael Yeager                  ··          1
                                                                                                              I
                                                               Judp                                           :
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