Heard: November 3, 2016.
action commenced in the Superior Court Department on June 17,
case was heard by Timothy Q. Feeley, J., on motions for
S. Lee for the plaintiff.
Gregory N. Eaton for the defendant.
Present: Agnes, Blake, & Desmond, JJ.
as in this case, the doctrine of equitable subrogation is
invoked by a mortgagee, it usually refers to a situation in
which that party claims that because it has paid the
obligation of another person or entity, it is entitled to be
put into the shoes of the party it has paid in order to
recover from the person or entity that had the
obligation. In the present case, on the other
hand, the plaintiff, Wells Fargo Bank, N.A., as trustee for
WAMU Mortgage Pass Through Certificates Series 2005-PR2 Trust
(Wells Fargo), asks us to employ the doctrine of equitable
subrogation to impose on a surviving spouse an obligation to
pay the balance of a note that her deceased husband was
obligated to pay when he refinanced their home in
circumstances in which the surviving spouse was a party to
neither the note nor the accompanying mortgage. For the
reasons that follow, we reject this novel argument as
fundamentally at odds with the framework established by the
Supreme Judicial Court in East Boston Sav. Bank
v. Ogan, 428 Mass. 327 (1998) .
P. Comeau (Nancy) and her husband, William L. Comeau
(William),  owned a residence as tenants by the
entirety in Groveland (locus), which, as of September 22,
2003, was encumbered by a mortgage to the Haverhill
Co-Operative Bank (Haverhill) in the amount of $150, 000.
Both William and Nancy were mortgagors-grantors on that
mortgage to Haverhill, but Nancy was not a signatory to the
note. There is no evidence that Nancy represented, directly
or indirectly, that she was bound by the terms of the note.
Two years later, in 2005, William refinanced the 2003 loan by
executing a note in his name only to Washington Mutual Bank,
F.A. (Washington Mutual), in the amount of $300, 000 secured
by a mortgage deed to Washington Mutual in which he (William)
was the sole mortgagor-grantor. There is no reference to
Nancy in the mortgage deed to Washington Mutual, and no
evidence in the record of any representations made by Nancy
to Washington Mutual concerning the transaction. William used
a portion of the loan proceeds from the refinancing to pay
off and satisfy the first mortgage to Haverhill in the amount
of $142, 871.51. William passed away on January 10, 2008. His
undivided interest in the locus passed to Nancy by right of
survivorship. At the time, a balance remained outstanding on
the 2005 note to Washington Mutual.
Wells Fargo, as successor to Washington Mutual, holds a claim
against William's estate arising from the unpaid 2005
note, it has never made a claim against William's estate
and the statute of limitations has since expired. Seeking to
avoid a total loss on the 2005 note, Wells Fargo filed a
complaint seeking a declaratory judgment that its 2005
mortgage must be equitably subrogated to the record position
of Haverhill's 2003 mortgage, so that Wells Fargo's
mortgage would also encumber Nancy's interest in the
property. On cross motions for summary judgment, the judge
issued a thoughtful and comprehensive memorandum and order
and a declaratory judgment which denied Wells Fargo's
motion for summary judgment, denied "as moot"
Nancy's motion for summary judgment, and declared that
"Wells Fargo is not equitably subrogated in the amount
of $142, 871.51 plus interest since February 9, 2005, to the
record position of the mortgage from William L. Comeau and
Nancy P. Comeau to Haverhill Co-Operative Bank on September
16, 2003, recorded in the Essex County Southern District
Registry of Deeds in Book 21800, Page 169 against 100% fee
simple interest in 2 Pond Street, Groveland, MA." Wells
Fargo now appeals.
Standard of review.
judge denied Wells Fargo's motion for summary judgment
and declared the rights of the parties based on his view that
there were no material facts in dispute and that, as a matter
of law, on the facts before the court, the remedy of
subrogation was not available to Wells Fargo. In such