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First Federal Savings Bank of Wabash v. United States

June 30, 1997






Appeal from the United States District Court for the Northern District of Indiana, South Bend Division.

No. 95 C 970 Allen Sharp, Chief Judge.

Before Cummings, Flaum, and Evans, Circuit Judges.

Flaum, Circuit Judge.

Argued May 20, 1997

Decided JUNE 30, 1997

When a bank loans money to extinguish a first mortgage in certain property and secures the loan with a new mortgage in the property but fails, due to the negligence of its title insurer, to discover an intervening tax lien, may the bank rely on the doctrine of equitable subrogation to establish the priority of its lien over that of the government? Applying Indiana law to the circumstances of this case, we agree with the district court that the plaintiff, First Federal Savings Bank of Wabash, is not entitled to step into the shoes of the first mortgagee. Accordingly, we affirm.


The relevant facts are not complicated. In February 1987, Danny and Janet Lantz borrowed $50,000 from First National Bank of Elkhart, Indiana. As security for the loan, the Lantzes gave First National a mortgage in a piece of property located in Kosciusko County, Indiana. First National, in turn, assigned the mortgage to the Federal Home Loan Mortgage Corporation ("FHLMC"), which duly recorded the assignment on February 8, 1988. Shortly thereafter, on February 19, the IRS recorded in Kosciusko County a notice of tax lien against the Lantzes in the amount of $51,226.95. As of February 19, then, FHLMC's interest in the Kosciusko property had priority over that of the government.

More than four years later, the Lantzes borrowed $100,000 from First Federal, which secured this loan with a mortgage in the Kosciusko property. Of the loan amount, First Federal paid $47,917.37 to extinguish the initial mortgage originally held by First National. First Federal recorded its mortgage on September 25, 1992, and the first mortgage was released three days later. Although First Federal obtained title insurance, the insurer failed to discover the tax lien, and it is undisputed that the bank had no actual notice of the government's interest in the property.

In 1995, after the IRS sought to foreclose on its lien, First Federal brought this wrongful levy action pursuant to 26 U.S.C. sec. 7426(a)(1). *fn1 The bank argued that it was entitled under Indiana law to be equitably subrogated to the rights of the first mortgagee. In other words, to the extent that its loan had been used to pay off the prior mortgage, First Federal sought to step into the shoes of the first mortgagee and thereby to leap ahead of the government in priority. The district court, however, determined that the equities did not weigh in First Federal's favor. Observing that First Federal had notice of the prior, $50,000 mortgage, the court reasoned that the bank "should have been on guard when the Lantzes borrowed a second mortgage twice as large as the first." In addition, the title insurance company had been negligent in failing to discover the tax lien while the IRS "ha[d] done nothing but properly file a tax lien and wait patiently to collect." The district court therefore denied First Federal's motion for summary judgment and granted the government's motion to dismiss. On First Federal's motion for reconsideration, the court distinguished Mort v. United States, 86 F.3d 890 (9th Cir. 1996), a case upholding a second mortgagee's right to equitable subrogation despite the presence of an intervening federal tax lien, on the ground that Mort involved unsophisticated, non-commercial lenders.. *fn2 Accordingly, the district court denied the motion for reconsideration. First Federal now appeals.


The parties do not agree on the appropriate standard of review. Not surprisingly, the government would have us review the court's equitable determination for abuse of discretion, while First Federal, treating the court's ruling as any other grant of summary judgment, urges us to exercise our plenary review. Although there is authority to support the government's position, see Mort, 86 F.3d at 892; United States v. Baran, 996 F.2d 25, 29 (2d Cir. 1993), the choice of a standard has no impact on our decision. Under either the government's or First Federal's proposed standard, we would affirm the district court's judgment.

Because section 6323(i) of the Internal Revenue Code directs that where local law subrogates a person to the rights of another, that person "shall be subrogated" for purposes of a federal tax lien, 26 U.S.C. sec. 6323(i), the question presented by this appeal demands a foray into Indiana law. Unfortunately, Indiana law provides no ready answer to our query. In Indiana, equitable subrogation "[is founded] upon principles of equity and is applicable in every instance in which one party, not a mere volunteer, pays the debt of another which, in good conscience, should have been paid by the one primarily liable." Loving v. Ponderosa Systems, Inc., 479 N.E.2d 531, 536 (Ind. 1985); see also Home Owners' Loan Corp. v. Henson, 29 N.E.2d 873, 875 (Ind. 1940). Although the doctrine is to be applied liberally, Loving, 479 N.E.2d at 536-37 (quoting 73 Am. Jur. 2d sec. 7 (1974)), and a party's mistake does not necessarily foreclose its reliance on equitable subrogation, Henson, 29 N.E.2d at 561, it is also clear that a court must decide whether to invoke the doctrine based on the circumstances of the particular case, see Ticor Title Ins. Co. of Cal. v. Graham, 576 N.E.2d 1332, 1338 (Ind. Ct. App. 1991). Beyond these rather broad parameters, we are left to chart our own course, for the parties have been unable to unearth an Indiana case that does not differ in some material respect from the case now before us.

It is also not obvious at first glance where the equities lie. On the one hand, although it may be imprecise to characterize the government's elevation to first lienholder as a windfall, it is true that applying equitable subrogation would not make the government worse off than it was prior to the release of the first mortgage. See Progressive Consumers Fed. Credit Union v. United States, 79 F.3d 1228, 1237 (1st Cir. 1996) ("The point is that the government could not have anticipated its current priority status because from the outset its 1988-1990 liens were clearly junior to MSFCU's 1987 mortgage lien."). In a case where the original mortgagee has provided refinancing, see, e.g., id., or where third-party purchasers suddenly find their home encumbered by a tax lien, see, e.g., Han v. United States, 944 F.2d 526 (9th Cir. 1991), this factor may be sufficient to tip the scale in favor of equitable subrogation. On the other hand, as a sophisticated lender with no use for the mortgaged property other than as collateral, First Federal was able to obtain ...

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