LAU, J.
¶ 1 Following escrow agent First American's failure to secure the release of secondary construction lender Liberty Capital's deed of trust on the sale of five condominium units, Liberty gave notice of intent to nonjudicially foreclose its deed of trust on those units. The unit owners (UOs) appeal the trial court rulings (1) dismissing the quiet title action, (2) dissolving the preliminary injunction, and (3) authorizing nonjudicial foreclosure against their units. They argue (1) title to their units should be quieted in them based on equitable estoppel, (2) a constructive trust should be imposed for the value of their units based on unjust enrichment, and (3) in the alternative, both the UOs and their lenders should be equitably subrogated to the primary lender's first priority position for the purchase price of their units. Because the UOs fail to establish relief under equitable estoppel and unjust enrichment and because equitable subrogation would result in material prejudice to Liberty, we affirm the trial court rulings.
¶ 2 Owner/developer GMP Homes developed the Starpoint Condominiums in 2006 and 2007 on two parcels of land in Issaquah. To finance construction, GMP borrowed $26 million from Frontier Bank. Norcon Builders, LLC, the prime contractor, began construction on the project in the first half of 2006. By July 2006, GMP needed additional construction financing and borrowed $1.9 million from Liberty.
¶ 3 The Frontier, Norcon, and Liberty loans were all secured by liens against the project property and units. Except for the five units at issue in this appeal, the creditors' priority was as follows:
¶ 4 First-place priority—Frontier, with a claim against all unsold units based on its partial deed that was released with each sold unit.
¶ 5 Second-place priority—Norcon, based on its mechanic's lien with a claim against all sold or unsold units.
¶ 6 Third-place priority—Liberty, as a secondary lender with a claim against all unsold units based on its deeds of trust. FF 3-4, 12-13, 59-60.
¶ 7 Liberty's 2006 loan agreement
¶ 8 "Beginning with the first Starpoint unit sale on or about July 30, 2007 . . . First American . . . implemented a standard practice for securing Liberty Capital's approval for each unit sale." FF 22.
Br. of Respondent at 3 (footnote omitted). This description is consistent with Dammarell's testimony describing the closing process:
RP (Jan. 13, 2009) at 153.
¶ 9 In all of the Starpoint sales, except those involving the UOs condominiums,
¶ 10 On October 9, 2008, Liberty sent an e-mail to First American asking that it provide a full list of sold units because it did not have complete and accurate records. FF 50 (citing Ex. 237). After reviewing First American's list of sold units, Dammarell informed First American that there were discrepancies between Liberty's list of approved sales and First American's. FF 51. The trial court found that the "earliest time at which [Liberty] understood that it had not provided approvals for the five unit sales" was October 2008.
¶ 11 Meanwhile, on July 18, 2008, Norcon filed this lawsuit to foreclose on its mechanic's lien against Starpoint.
¶ 12 Meanwhile, Liberty gave notice of nonjudicial foreclosure of its deed of trust and trustees sale, which was set for June 5, 2009. The UOs filed a third party complaint in the Norcon lawsuit seeking injunctive relief to prevent the foreclosure sale against their units. CP at 272-75. Prior to the trustee's sale, the trial court granted the UOs' request for a temporary restraining order on June 3 and a preliminary injunction on June 19, pending discovery and trial. In August 2009, the UOs amended their complaint to include a claim to quiet title in their units on the grounds of equitable estoppel,
¶ 13 The case was tried in a six-day bench trial in January 2010. After trial, on February 12, the court entered extensive written findings of fact and conclusions of law. On March 18, the court dissolved the preliminary injunction, authorized nonjudicial foreclosure against the UOs' units, and dismissed their quiet title claim. The court also denied the UOs' motion to amend the findings of fact and conclusions of law and to declare that Liberty's deed of trust should be subordinate to the UOs' lenders' deeds of trust.
¶ 14 The UOs seek relief under principles of equity. "`[T]he question of whether equitable relief is appropriate is a question of law,' and like all issues of law ... review is de novo." Bank of Am., NA v. Prestance Corp., 160 Wn.2d 560, 564, 160 P.3d 17 (2007) (citation omitted) (quoting Niemann v. Vaughn Cmty. Church, 154 Wn.2d 365, 374, 113 P.3d 463 (2005)). We treat unchallenged findings as verities on appeal. Zunino v. Rajewski, 140 Wn.App. 215, 220, 165 P.3d 57 (2007).
¶ 15 The UOs assert three equitable arguments for reversal. They maintain that (1) equitable estoppel principles entitle them to have title to their units quieted in them, (2) a constructive trust should be imposed for the value of their units on the ground of unjust enrichment, and (3) in the alternative, the UOs and their lenders should be equitably subrogated to Frontier's first priority position for the purchase price of their units. Finally, the UOs challenge 13 findings of fact and 6 conclusions of law.
¶ 16 The UOs first argue that title to their five units should be quieted in them and that Liberty's deed of trust should be extinguished based on equitable estoppel principles. Liberty maintains that the UOs cannot satisfy any of the three equitable estoppel elements.
¶ 17 Equitable estoppel is based on the view that "`a party should be held to a representation made or position assumed where inequitable consequences would otherwise result to another party who has justifiably and in good faith relied thereon.'" Lybbert v. Grant County, 141 Wn.2d 29, 35, 1 P.3d 1124 (2000) (quoting Kramarevcky v. Dep't of Soc. & Health Servs., 122 Wn.2d 738, 743, 863 P.2d 535 (1993)). Equitable estoppel requires three elements:
Lybbert, 141 Wash.2d at 35, 1 P.3d 1124 (quoting Bd. of Regents v. City of Seattle, 108 Wn.2d 545, 551, 741 P.2d 11 (1987)). Equitable estoppel is not a favored doctrine, so each element must be shown by clear, cogent, and convincing evidence. Colonial Imports, Inc. v. Carlton Nw., Inc., 121 Wn.2d 726, 734, 853 P.2d 913 (1993). The party asserting the defense must have clean hands—be free from fault in the transaction at issue. Kramarevcky, 122 Wash.2d at 743 n. 1, 863 P.2d 535
¶ 18 As to the first equitable estoppel element, the UOs advance two arguments to show Liberty made "`an admission, statement or act inconsistent with a claim afterwards asserted....'" Lybbert, 141 Wash.2d at 35, 1 P.3d 1124 (quoting Bd. of Regents, 108 Wash.2d at 556, 741 P.2d 11). First, they argue that Liberty's current assertion of a deed of trust is inconsistent with its
¶ 19 As to the first argument, there is nothing inconsistent with agreeing to a written approval process for Starpoint sales, approving 62 sales pursuant to that mutually agreed process, and foreclosing on units when First American failed to follow that approval process. First American and Liberty negotiated a detailed approval process that consisted of written requests from First American and required a corresponding written approval by Liberty. This approval process protected Liberty's interests by allowing it to ensure that unit sale prices were adequate to pay down the Frontier debt at a sufficient rate such that Liberty could recoup its loan through the sales of the last 23 units. Liberty was entitled to insist that First American use that process when closing Starpoint sales and is entitled to assert its secured creditor rights when it was not followed.
¶ 20 The UOs claimed inconsistency is further undermined because Liberty had valid reasons to question the disputed closings. The trial court's undisputed findings of fact establish that Liberty representatives testified to several problems with the disputed closings. Dammarell testified "that he would not have approved distributing $12,895 to GMP Homes IH, LLC on the sale of unit N-205 if he had seen the draft Settlement Statement prior to closing" because, according to GMP principal
¶ 21 While the UOs correctly note that Dammarell could not testify that he would not have approved the sales, neither did he testify that he would have. "I may have signed off, but I don't know. I wasn't given the opportunity...." RP (Jan. 14, 2010) at 69. Furthermore, the UOs' allegations lack evidentiary or legal support-their argument on the first estoppel element does not contain a single citation to the record or legal authority.
¶ 22 And there is no evidence that the UOs knew about Liberty's approval of the prior
Conclusion of Law 6. Warthan's admission that she needed written approval for "each closing" conclusively establishes that neither First American nor the UOs relied on Liberty's prior approvals.
¶ 23 The same is true of the UOs' second alleged inconsistent act by Liberty. The UOs argue that "Liberty's failure to speak up when it would have reasonably been expected to do so in order to protect its interests" constitutes "`an admission, statement or act inconsistent with a claim afterwards asserted.'" Br. of Appellant at 40 (quoting Lybbert, 141 Wash.2d at 35, 1 P.3d 1124). While "[s]ilence can lead to equitable estoppel," the "conduct relied on to raise the estoppel must have been concurrent with or anterior to the action which they are alleged to have influenced." Peckham v. Milroy, 104 Wn.App. 887, 892-93, 17 P.3d 1256 (2001); Elmonte Inv. Co. v. Schafer Bros. Logging Co., 192 Wn. 1, 33, 72 P.2d 311 (1937) (emphasis omitted) (cited with approval in Sorenson, 158 Wash.2d at 540, 146 P.3d 1172). That is, "[i]t is essential to an equitable estoppel that the person asserting the estoppel changed his position in reliance upon the representations or conduct of the party sought to be stopped." Sorenson, 158 Wash.2d at 540, 146 P.3d 1172.
¶ 24 Here the UOs argue that Liberty knew about the five disputed sales in August 2007.
Br. of Appellant at 41 (emphasis added). But this argument acknowledges that Liberty did not know about the sales until after "four of the five Unit Owners sales had closed." Br. of Appellant at 41. Moreover, the trial court's unchallenged finding of fact 45 establishes that Liberty did not learn about the unapproved closings until "October 2008, which was the earliest time at which it understood that it had not provided approvals for five unit sales." FF 45. When it learned about the disputed sales, Liberty immediately
¶ 25 To establish the injury element, the UOs argue that "the Unit Owners will lose title to their property." Br. of Appellant at 47. Liberty counters that this argument is in violation of a trial court in limine ruling and that absent the prohibited "lose their home" argument, the UOs cannot establish injury.
¶ 26 The UOs next argue that "Liberty Capital's Retention of Both the Right to Foreclose on the Unit Owners' Units and the $1.2 Million Dollar Benefit from the Unit Owners' Pay Down of Frontier's Debt Results in Unjust Enrichment...." Br. of Appellant at 48 (section heading). Liberty counters that the UOs cannot satisfy the elements of their unjust enrichment claim.
¶ 27 "Unjust enrichment is the method of recovery for the value of the benefit retained absent any contractual relationship because notions of fairness and justice require it." Young v. Young, 164 Wn.2d 477, 484, 191 P.3d 1258 (2008). A claim of unjust enrichment requires proof of three elements—"(1) the defendant receives a benefit, (2) the received benefit is at the plaintiff's expense, and (3) the circumstances make it unjust for the defendant to retain the benefit without payment." Young, 164 Wash.2d at 484-85, 191 P.3d 1258. All three elements must be established for unjust enrichment. See Young, 164 Wash.2d at 484, 191 P.3d 1258.
¶ 28 A person is unjustly enriched when he or she profits or enriches himself or herself at the expense of another contrary to equity. Farwest Steel Corp. v. Mainline Metal Works, Inc., 48 Wn.App. 719, 731-32, 741 P.2d 58 (1987). "Enrichment alone will not suffice to invoke the remedial powers of a court of equity. It is critical that the enrichment be unjust both under the circumstances and as between the two parties to the transaction." Farwest Steel, 48 Wash.App. at 732, 741 P.2d 58. The mere fact that a defendant has received a benefit from the plaintiff is insufficient alone to justify recovery. The doctrine of unjust
¶ 29 The UOs fail to show why it is unjust for their title insurer, First American Title Insurance Company, to pay $1.3 million when the duty to defend the UOs under the First American title policy was triggered by a First American escrow officer's error or omission. See unchallenged FF at 53 ("[T]he Court finds by a preponderance of the evidence that First American closed the five disputed closings without receiving any prior approval from Liberty Capital."). The UOs specifically argue,
Reply Br. of Appellant at 13-14 (emphasis added). There is nothing unjust about enforcing a valid deed of trust with clear priority where due diligence by First American could have cleared title. And the UOs cite no case authority finding unjust enrichment under similar facts. We conclude the UOs fail to show an unjust benefit to Liberty under these circumstances.
¶ 30 Furthermore, the UOs cannot establish that any alleged enrichment was unjust given that Liberty had no knowledge of the UOs' closings. In Irwin Concrete, Inc. v. Sun Coast Props., Inc., 33 Wn.App. 190, 194, 653 P.2d 1331 (1982), subcontractors worked on a water system that increased the value of the owner's land and enabled the owner to pay off its construction loan. The owner did not pay the contractors, and they filed liens on the property. Irwin Concrete, 33 Wash.App. at 192-93, 653 P.2d 1331. The court held that "it would be unjust for [the owner] to receive the benefit of the [contractor's] work without paying" where the owner knew about the work, urged and consented to completion, and "silently acquiesced in the work when it was foreclosing its deed of trust." Irwin Concrete, 33 Wash.App. at 194-95, 653 P.2d 1331.
¶ 31 In Seattle Mortgage Co. v. Unknown Heirs of Gray, 133 Wn.App. 479, 499, 136 P.3d 776 (2006), Seattle Mortgage loaned Daisy Gray $135,000 in exchange for a promissory note and a deed of trust against her residence. Subsequently, Tacoma Public Utilities Department (Tacoma PUD) loaned Gray $3,186.96 for energy conservation improvements to her home, which it secured with a lien against Gray's home. When Gray died and payments on the Seattle Mortgage debt ceased, Seattle Mortgage filed a complaint for foreclosure, naming Tacoma PUD as a defendant. At summary judgment, the trial court ruled that Seattle Mortgage's deed of trust took priority and foreclosure would extinguish Tacoma PUD's interest. On appeal, Tacoma PUD argued that granting summary judgment would unjustly enrich Seattle Mortgage because it would receive the benefit of the home improvements without paying for them. The court held,
Seattle Mortgage, 133 Wash.App. at 499, 136 P.3d 776.
¶ 32 Here, Liberty had no knowledge that the UOs were purchasing their units and did nothing to encourage the process. Thus, unlike the defendants in Irwin and like those in Seattle Mortgage, Liberty did not "silently acquiesce[ ]" to the closing and then seek to benefit from them without paying. Irwin Concrete, 33 Wash.App. at 194, 653 P.2d 1331; Seattle Mortgage, 133 Wash.App. at 499, 136 P.3d 776. The UOs fail to establish that their payment to Frontier, made without Liberty's knowledge and in derogation of the agreed approval procedure, constitutes an unjust benefit. See Seattle Mortgage, 133 Wash.App. at 499, 136 P.3d 776.
¶ 33 The UOs incorrectly argue that Liberty's retention of the funds would be unjust because "Liberty Capital ignored actual notice of the Unit Owners' sales for fifteen months while acknowledging the actual benefit in the loan reduction to Frontier...." Br. of Appellant at 49. That assertion is contradicted by the trial court's unchallenged FF 45 that Liberty did not learn about the unapproved closings until "October 2008, which was the earliest time at which it understood that it had not provided approvals for five unit sales." The UOs also contend that "[Liberty's] fail[ure] to police its own requirements for reviewing each sales transaction" makes its retention of the alleged benefit unjust. Br. of Appellant at 49. But Liberty was entitled to rely on its agreement with First American to close Starpoint sales through a written approval process. And nothing in the record shows First American's unilateral decision to deviate from that agreed procedure should be attributed to Liberty. The UOs have failed to establish unjust enrichment.
¶ 34 Even though we conclude that the UOs have failed to demonstrate an unjust benefit, we nevertheless address their alternative equitable subrogation contention. The UOs argue that the trial court erred by not applying the doctrine of equitable subrogation to elevate the UOs to Frontier's first priority position. Liberty counters that the doctrine is inapplicable because the UOs did not fully discharge Frontier's debt and because its application would materially prejudice Liberty.
¶ 35 "Equitable subrogation provides an exception to the first in time rule by permitting a person who pays off an encumbrance to assume the same lien priority position as the holder of the previous encumbrance." Bank of America, NA v. Wells Fargo Bank, NA, 126 Wn.App. 710, 714, 109 P.3d 863 (2005), rev'd on other grounds, Bank of Am., N.A. v. Prestance Corp., 160 Wn.2d 560, 160 P.3d 17 (2007).
Prestance, 160 Wash.2d at 564-65, 160 P.3d 17. "As an equitable remedy, subrogation is designed to avoid one person receiving an unearned windfall, i.e., the intervening lienholder through an advancement in priority, at the expense of another, i.e., the new mortgagee who paid the prior debt." Bank of America, 126 Wash.App. at 714, 109 P.3d 863. In Prestance, our Supreme Court adopted the definition of equitable subrogation from Restatement (Third) of Property:
¶ 36 Relying on Prestance, the UOs argue that because "[t]he Unit Owners and their lenders paid in full the portion of senior lienor Frontier's loan allocated to the Unit Owners' units," they should be equitably subrogated to Frontier's first priority position. Reply Br. of Appellant at 19. In Prestance, Sakae Sugihara obtained a home loan from Washington Mutual secured by a deed of trust on the property. Sugihara then "took out a series of business and home equity loans [from Bank of America], each time pledging the residence as at least a portion of the security." Prestance, 160 Wash.2d at 562, 160 P.3d 17. Finally, Sugihara obtained a home equity line of credit from Wells Fargo Bank (WFB) West partly for the purpose of paying off the Washington Mutual mortgage. WFB West paid off the Washington Mutual mortgage and gave the balance to Sugihara. Bank of America, 126 Wash.App. at 713, 109 P.3d 863. Adopting the restatement definition of equitable subrogation and its provisions on knowledge of the intervening loan, the Supreme Court concluded that because Bank of America suffered no material prejudice, "WFB West [was] equitably subrogated to Washington Mutual's first-priority lien...." Prestance, 160 Wash.2d at 582, 160 P.3d 17.
¶ 37 But in Prestance, the question before the court dealt with the lender's actual or constructive knowledge in the context of a conventional refinancing. "The only issue before us is a legal one: should we adopt 7.6 of Restatement (Third) to hold a refinancing mortgagee's actual or constructive knowledge of intervening liens does not automatically preclude a court from applying equitable subrogation." Prestance, 160 Wash.2d at 564, 160 P.3d 17. The court held, "We now reverse the Court of Appeals and adopt 7.6 of the Restatement (Third). We hold a lender can be equitably subrogated to a first-priority lien despite having actual or constructive knowledge of junior lienholders." Prestance, 160 Wash.2d at 562, 160 P.3d 17. The narrow holding of Prestance is about knowledge. Because the parties here do not argue knowledge, Prestance does not control.
¶ 38 In addition, unlike in Prestance where the junior lienor suffered no material prejudice, we conclude the record amply demonstrates material prejudice to Liberty's rights if the UOs are equitably subrogated to Frontier's first priority position. "Equitable subrogation should never be allowed if a junior interest is materially prejudiced...." Prestance, 160 Wash.2d at 572, 160 P.3d 17. In Prestance, the second position creditor, Bank of America, was not prejudiced because it maintained its second priority position and was thus in no worse position than it would have been [in] had [the refinance lender] never made its ... loan. Prestance, 160 Wash.2d at 581, 160 P.3d 17 (quoting the trial court's ruling). But Bank of America was a prior home equity lender with no role in Sugihara's decision to refinance his primary mortgage. By contrast, Liberty had carefully negotiated an agreement with First American to be consulted on every closing and to close only with its written approval. As a
¶ 39 First, because Liberty was unaware that the five units were sold, it could not accurately assess its loan security in the context of a precipitously falling real estate market. Consequently, Liberty—under the mistaken belief that its loan was secured by 15 unsold units (instead of the actual 10)—was precluded from demanding additional collateral from GMP to secure its loan. According to challenged FF 39,
The UOs' opening brief provides no argument or analysis for why this challenged finding is not supported by substantial evidence and cites to nothing in the record that casts doubt on this critical finding. The UOs' challenge to this finding is thus waived. See Cowiche Canyon, 118 Wash.2d at 809, 828 P.2d 549 (plaintiffs who assigned error to finding of fact but presented "no argument in their opening brief on any claimed assignment" waived that assignment of error.); RAP 10.3(a)(4). And while the UOs address FF 39 in a footnote in their reply brief, "[a]n issue raised and argued for the first time in a reply brief is too late to warrant consideration." Cowiche Canyon, 118 Wash.2d at 809, 828 P.2d 549. Furthermore, "placing an argument of this nature in a footnote is, `at best, ambiguous or equivocal as to whether the issue is truly intended to be part of the appeal.'" St. Joseph Gen. Hosp. v. Dep't of Revenue, 158 Wn.App. 450, 473, 242 P.3d 897 (2010) (quoting State v. Johnson, 69 Wn.App. 189, 194 n. 4, 847 P.2d 960 (1993)).
¶ 40 Nevertheless, our review of the record indicates that FF 39 is supported by substantial evidence. When the trial court has weighed the evidence, we review the trial court's factual findings for substantial evidence to support them. We then determine whether the findings of fact support the conclusions of law and judgment. Brin v. Stutzman, 89 Wn.App. 809, 824, 951 P.2d 291 (1998). "`Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.'" Brin, 89 Wash.App. at 824, 951 P.2d 291 (quoting Cowiche Canyon, 118 Wash.2d at 819, 828 P.2d 549). There is a presumption in favor of the trial court's findings, and the party claiming error has the burden of showing that a finding of fact is not supported by substantial evidence. Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990). We defer to the trier of fact for purposes of resolving conflicting testimony and evaluating the persuasiveness of the evidence and credibility of the witnesses. Boeing Co. v. Heidy, 147 Wn.2d 78, 87, 51 P.3d 793 (2002).
¶ 41 Dammarell's testimony provides substantial evidence to support FF 39:
RP (Jan. 14, 2010) at 41-43.
¶ 42 This testimony establishes that (1) GMP and Prendergast possessed additional collateral, (2) Liberty demanded it as additional security for other loans after the disputed closings, and (3) Prendergast made such collateral available to Liberty. The UOs fail to establish that FF 39 is not supported by substantial evidence or to provide a compelling reason why the presumption in favor of the trial court's findings and the deference afforded its decisions on the weight of evidence and credibility of witnesses should be overturned. Fisher Props., 115 Wash.2d at 369, 798 P.2d 799; Heidy, 147 Wash.2d at 87, 51 P.3d 793. The UOs' only argument on FF 39 is that
Appellant's Reply Br. at 13. As we concluded above, this contention is contradicted by unchallenged FF 45, which establishes that Liberty did not learn about the unapproved closings until "October 2008, which was the earliest time at which it understood that it had not provided approvals for five unit sales." FF 45. Because the UOs have waived any challenge to FF 39 and substantial evidence supports FF 39, we conclude the UOs would suffer material prejudice.
¶ 43 In addition, Liberty would also suffer material prejudice because it was prevented from requesting changes to several questionable disbursements made as part of the disputed unit closings. See Section I, supra. Liberty was not a secondary home equity lender with no role in the third loan, as in Prestance, but a construction lender with secured rights that it negotiated to protect through an agreement to approve every sale. We conclude that under the circumstances here, application of equitable subrogation in the UOs' favor would result in material prejudice to Liberty.
¶ 44 Finally, we note "in the real estate context, equitable subrogation has been traditionally invoked only to prevent unjust enrichment; equitable remedies are not granted where it would produce injustice." Kim v. Lee, 145 Wn.2d 79, 89, 31 P.3d 665 (2001); see also RESTATEMENT (THIRD) OF PROPERTY: MORTGAGES 7.6 cmt. (f) at 522. As discussed above, the UOs fail to establish that Liberty was unjustly enriched. See Section II, supra. Accordingly, the trial court did not err in refusing to equitably subrogate the UOs to Frontier's first priority position.
¶ 45 Because the UOs fail to establish that they are entitled to relief under principles of unjust enrichment, equitable estoppel, and equitable subrogation, we affirm the trial court rulings.
WE CONCUR: SCHINDLER, and BECKER, JJ.
Before trial, the UOs moved in limine to exclude evidence that they had title insurance with First American Title Insurance Company in response to Liberty's proffered exhibits 246 and 247. Exhibit 246 is a June 30, 2009 letter from First American's counsel to Liberty's counsel advising that as to "Liberty Capital's nonjudicial foreclosure, First American considers the foreclosure to be a title insured claim and is defending the Applicants on Liberty Capital's foreclosure." Exhibit 247 is a June 16 e-mail sent by First American's attorney on the eve of the foreclosure sale requesting Liberty's loan balance so that First American could prepare to bid that amount at the foreclosure sale. The trial court's ruling precluded Liberty from presenting such evidence unless "an issue is raised as to Applicants' losing their homes." CP at 1810. The trial court later admitted exhibit 246 for the limited purpose of showing bias by First American's witnesses. At trial, First American made a tactical decision to abandon its contention about the UOs "losing their homes" after the trial court explained, "if they [UOs] open that door you [Liberty] get to rebut it." RP (Jan. 11, 2010) at 68. The record shows that the UOs introduced no evidence or argument on this point after the trial court's admonition.
And given our discussion in this case, we do not address Liberty's argument here that the door is now opened to admission of exhibits 246 and 247 because the UOs' appellate briefs argue the UOs "stand to" and "will lose title to their property" absent reversal.
"(b) By way of illustration, subrogation is appropriate to prevent unjust enrichment if the person seeking subrogation performs the obligation:
"(1) in order to protect his or her interest;
"(2) under a legal duty to do so;
"(3) on account of misrepresentation, mistake, duress, undue influence, deceit, or other similar imposition; or
"(4) upon a request from the obligor or the obligor's successor to do so, if the person performing was promised repayment and reasonably expected to receive a security interest in the real estate with the priority of the mortgage being discharged, and if subrogation will not materially prejudice the holders of intervening interests in the real estate."
