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SUPREME COURT, STATE OF COLORADO Court Address: 2 East Fourteenth Avenue Fourth Floor Colorado State ... - page 12 / 22





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even claim that to do otherwise would unjustly create a "windfall" for Hicks. The Court of

Appeals says that "a person who pays off an encumbrance without knowledge of a superior lien

may assume the same priority position as the holder of the previous encumbrance." Hicks v.

Londre, 107 P.3d 1009, 1011 (Colo. App. 2004) cert. granted in part, 045C 741 (Colo. Feb. 28,

2005). Equitable subrogation is not that simple or easy. It is an equitable doctrine, and may only

be invoked to right a wrong or to prevent injustice. On that issue, the Missouri Court of Appeals


The cases involving equitable subrogation have applied the doctrine only in very limited circumstances. In Bunn v. Lindsay, 95 Mo. 250, 7 S.W. 473 (1888) a lender provided money necessary to pay off a first deed of trust. The lender was unaware of an intervening judgment lien of record. The court refused to allow equitable subrogation and stated its reasons as follows:

"Why did he not know it? That judgment was spread upon the public records in order that all who might deal with the property might know of its existence. He was not prevented from examining the record or lulled into security by any representation of Paramore, Lindsay, or anybody else. He did not know simply because neither he nor his agent looked that he might see and know. That plaintiff's security was less valuable than he expected it would be when he made the loan was the result of his own negligence, and not of the fault, wrong, or mistake of any other person. Against the consequences of that negligence, for which he has no one to blame but himself, a court of equity cannot relieve him by interfering with the legal rights of others who are without fault." (l.c. 476). Landmark Bank v. Ciaravino, 752 S.W.2d 923, 927 (Mo. App. 1988).

Here the Court of Appeals decided that "the interests of the Londres and Chase should be

equitably subrogated to the position of the original Washington Mutual deed of trust, and thereby

have priority over Hicks's lien." Id. at 1013. Although it is not explained further, how that

would appear to work in this case is that Chase Manhattan is treated as the assignee of the

Washington Mutual lien to the extent of the amount it lent to purchase the property (irrespective

of the interest rate, maturity date or other terms of the junior lien), and the Londres are treated as


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