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SUPREME COURT, STATE OF COLORADO Court Address: 2 East Fourteenth Avenue Fourth Floor Colorado State ... - page 19 / 22

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computerized data base in the clerk and recorder's office. The lien was missed because the

proper procedure for finding it was not followed. If the Court of Appeals is right, then the

judgment lien creditor, who is supposed to have the legal status of a good faith purchaser for

value without notice, and who had nothing to do with the sale or the title search, loses his lien

priority. He is, in fact, prejudiced by that outcome, because he has been deprived of the ability to

enforce his lien. See, Carl H. Peterson Company v. Zero Estates, 261 N.W.2d 346 (Minn.

1977), and, Landmark Bank v. Ciaravino, 752 S.W.2d 923 (Mo. App. 1988).

This is a misapplication of the doctrine of equitable subrogation. As quoted by the

United States Court of Appeals for the Seventh Circuit in First Federal Savings Bank of Wabash

v. United States, 118 F.3d 532 (1997), several states, including Indiana, take the following

position:

"Subrogation," one Indiana court has explained,

is not an absolute right, but one which depends upon the equities and attending facts and circumstances of each case. It would be a gross misapplication of the doctrine of subrogation were we to hold that its cloak settles automatically upon one who has simply made a mistake, when it is a commercial transaction involving a consideration. . . . Further, it is difficult to think of a situation in which a title insurance company could not claim unjust enrichment as to someone who might inadvertently benefit by their negligence. Either they insure or they don't. It is not the province of the court to relieve a title insurance company of its contractual obligation. Lawyers Title Ins. Corp., 369 N.E.2d at 674 (quoting Coy v. Raabe, 69 Wash. 2d 346, 418 P.2d 728 (Wash. 1966) (internal quotations omitted)). 118 F.3d 532, 533, (emphasis added.)

This same reasoning has also been followed in Minnesota, in the case of Carl H.

Peterson Company v. Zero Estates, Missouri, in the case of Landmark Bank v. Ciaravino, ,

and Kansas, in Bankers Trust Company v. United States, 29 Kan. App.2d 215, 25 P.3d 877

(2001). A court of equity should be extremely reluctant to intervene in a case where, due to the

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