Equitable Subrogation

D.C. Circuit Holds Lender Entitled to Equitable Subrogration Despite Its Actual Knowledge That Co-Owner Refused To Sign Mortgage

In Smith v. First American Title Insurance Company, the U.S. Court of Appeals for the District of Columbia held that, under D.C. law, a lender (New Lender) was entitled to equitable subrogation for amounts paid off by its loan against a co-owner’s (Co-Owner) interest in property jointly owned with Borrower, even though New Lender had actual knowledge that Co-Owner had refused to sign its refinance loan documents.  Consequently, equitable subrogation enabled New Lender to assert the same rights against Co-Owner and Borrower’s house that their prior lender held under the paid-off mortgage.  See Op. at 3.

A copy of the opinion is available here.


Co-Owner and his mother, Borrower, jointly owned a house in the District of Columbia, which was subject to a $115,000 mortgage bearing a 6.5% interest rate (the “Prior Mortgage”), which they both signed.  Thereafter, a new lender (“New Lender”) offered Borrower a $135,000 mortgage, with a 9.65% interest rate (the “New Mortgage”), which allowed for Borrower to obtain $6,000 in cash at settlement.  Co-Owner refused to sign the paperwork because he thought the rate was too high. 

Nevertheless, New Lender proceeded to make the loan without Co-Owner’s signature on the New Mortgage, and such loan was used to satisfy and release the Prior Mortgage.  The Court noted that, technically, although the New Mortgage gave New Lender rights to Borrower’s half-interest in the Property, it did not give New Lender any rights to Co-Owner’s half-interest in the Property.  “As a result, without paying a cent, [Co-Owner] ended up with a half-interest in the house free of both the [Prior] Mortgage and the [New] Mortgage” Op. at 3.

Borrower later declared bankruptcy.  Because New Lender could not foreclose against the Property as a whole, New Lender filed suit in Bankruptcy Court seeking equitable subrogation against Co-Owner’s interest, which was permitted by the Bankruptcy Court and District Court.  Co-Owner and Borrower thereafter appealed to the U.S. Court of Appeals for the D.C. Circuit, which affirmed the application of equitable subrogation. 


“The doctrine of equitable subrogation permits courts to declare that the owner of a mortgage (New Lender) has the same rights as an earlier-in-time owner of another mortgage (Prior Lender) on the same property, if certain conditions are met.  The purpose of equitable subrogation is ‘to prevent forfeiture and unjust enrichment.’”  Op. at 3 (citing Eastern Savings Bank, FSB v. Pappas, 829 A.2d 953, 957 (D.C. 2003) (internal quotation marks omitted)).

Under D.C. law, New Lender is entitled to equitable subrogation if it meets each prong of a five-part test: (1) New Lender paid off the Prior Mortgage to protect New Lender’s “own interest”; (2) New Lender has not “acted as a volunteer”; (3) New Lender “was not primarily liable” for the Prior Mortgage; (4) New Lender paid off the entire Prior Mortgage; and (5) subrogation would “not work any injustice to the rights of others.” Id. at 4-5 (quoting Eastern Savings Bank, FSB v. Pappas, 829 A.2d 953, 961 (D.C. 2003) (internal quotation marks omitted)).

The Court of Appeals determined that the first four prongs of the test for equitable subrogation were straightforward.  See Op. at 5.  As to the fifth prong, the Court concluded that equitable subrogation would not work an injustice.  “To begin with, equitable subrogation does not in any way affect [Borrower]’s rights. And equitable subrogation likewise does not work an injustice on [Co-Owner]. The Bankruptcy Court held that [New Lender] is entitled to equitable subrogation on the same terms as the [Prior Mortgage]. So, [Co-Owner] is obligated to [New Lender] only for the balance of the [Prior Mortgage], and only at the lower interest rate of the [Prior Mortgage].  Equitable subrogation simply prevents [Co-Owner] from enjoying a windfall.  It does not work an injustice because it makes him no worse off than he would have been under the [Prior Mortgage] had [Borrower] never agreed to the mortgage with [New Lender].” Op. at 5-6 (citations omitted).

Although the Court acknowledged that “[u]nder D.C. law, it is unsettled whether ‘actual knowledge bars equitable subrogation,’” Op. at 6, it predicted that the D.C. Court of Appeals (i.e., the state court) would allow for its application, noting that that the D.C. Court “endorsed an approach in which ‘no attention should be paid to technicalities which are not of an insuperable character, but the broad equities should always be sought out so far as possible. . . .,”  and therefore adopted a “rule requiring liberal application of the doctrine of subrogation.” Op. at 7 (quoting Burgoon v. Lavezzo, 92 F.2d 726 (D.C. Cir. 1937)).  Further, the federal appellate court noted that the D.C. Court of Appeals looks to the Restatement for guidance on questions of law involving equitable subrogation, which “has adopted the more liberal approach to equitable subrogation, under which actual knowledge does not bar application of the doctrine.” Op. at 7-8 (citing Restatement (Third) of Property: Mortgages § 7.6 cmt. e (1997)).

Moreover, the Court noted that “[i]n Burgoon, the court determined that equitable subrogation was appropriate because the lender could have achieved the same result by taking an assignment of the original loan.”  Op. at 8 (citing Burgoon, 92 F.2d at 736).  Likewise, here, “[i]nstead of taking out a new mortgage on the house, New Lender could have asked [Prior Lender] to assign [the Prior Mortgage [ to [New Lender]. Through assignment, [New Lender] would have obtained [Prior Lender]’s rights to [Co-Owner]’s half-interest in the house.” Op. at 8.

Consequently, the Court determined that New Lender was entitled to equitable subrogation under D.C. law.