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Kathleen Hill v. Cross Country Settlements, LLC, No. 4, September Term 2007. UNJUST ENRICHMENT - GENERALLY A PLAINTIFF IS NOT A VOLUNTEER AND THUS NOT PROHIBITED FROM RECOVERY IN UNJUST ENRICHMENT WHEN HE OR SHE ACTS UNDER A LEGAL DUTY, ACTS TO PROTECT HIS OR HER PROPERTY INTERESTS, ACTS UNDER A M ORAL DUTY, ACTS A T THE REQUEST OF THE DEFENDANT, OR ACTS PURSUANT TO A REASONABLE OR JUSTIFIABLE MIST AKE AS T O TH E AF ORE MEN TION ED C ATE GOR IES. SUBROGATION - ALTHOUGH SUBROGATION AND UNJUST ENRICHMENT SHARE MANY OV ERLAPPING PRINCIPLES, SUBROGATION MERELY IS A REMEDY, AND , IN ORD ER TO RECO VER, A PLAIN TIFF REQUIRES ANOTHER UND ERL YING LEG AL T HEO RY. SUMMARY JUDG MEN T - AFFID AVITS IN SUPP ORT - A N AFF IDAVIT CONTAINING A MERE ALLUSION TO A DOCUMEN T, WITHOUT ATTACHING THAT DOCUMENT OR RECITING ITS RELEVANT TERMS, IS INSUFFICIENT TO ASSERT LEGAL SUPPORT TO GRANT SUMM ARY JUDGMENT.

Circuit Co urt for Baltim ore Cou nty Case No. 03-C-04-011853

IN THE COURT OF APPEALS OF MARYLAND No. 4 September Term, 2007

KATHLEEN HILL v. CROSS COUNTRY SETTLEMENTS, LLC

Bell, C.J. Harrell Battaglia Greene Eldridge, John C. (Retired, specially assigned) Wilner, Alan M. (Retired, specially assigned) Cathell, Dale R. (Retired, specially assigned)

JJ. Opinion by Harrell, J.

Filed: December 3, 2007

The only thing that is crystal clear about this case is that the grant of sum mary judgmen t, on this record, w as inappro priate. Altho ugh we cannot state conclusive ly that no conceiva ble set of facts that may be developed on remand, based on the analysis here, could support disposition o f this dispute b y summary jud gment, w e suggest that it is quite likely that this litig ation pr esents tr iable issu es. I. Mary Sasso a cquired the resid ential pr operty at 5 33 S. Chester Street in Baltim ore City (the "Property") on 28 March 1991. Approximately six months later, she conveyed the Property to her daughter, Kathleen Hill, reserving for herself, however, a life estate with the power to en cum ber the Prope rty. In 1999, Sasso obtained a home equity loan from Provident Bank ("Provident") using the Property as security for the loan. Provident recorded among the land records of Baltimore City on 22 April 1999 the Deed of Trust associated with that loan. Sasso refin anced the loan with Provident, and a new Deed of Trust was executed, on 25 October 2002. Provident issued a certificate of satisfaction for the 1999 loan and properly record ed the n ew D eed of Trust. Sasso died on 18 May 200 3. Provide nt continue d to receive from Hill regular payments on the 2 002 loa n until a l ast paym ent on 2 5 June 2004. I n June 2004, Adedayo Mseka (the "Buyer") a greed w ith Hill to purcha se the P roperty fo r $175 ,000. Cross Coun try Settlements, LLC ("Cross Country"), was engaged by the Buyer to conduct the closing. During its title search, Cross Country discovered the outstanding 2002 Deed of Trust in favor

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of Providen t. Cross Co untry contacted Providen t to obtain payoff information. At this point in time, the only relev ant information Cross Country had was the name of the borrower (Sasso) and other self-explanatory information revealed by the four corners of the recorded Deed of Tru st. The record does not contain written documentation of the initial communications between Provident and Cross Country. The comm unications were

characterized, however, in an affidavit of Cross Country's President, Rebecca L. Raras, submitted in support of Cross Country's motion for summary judgment, as "difficult." In essence, C ross Cou ntry was una ble to obtain payoff info rmation fro m Provid ent. At some point after Cross Country c ontacted Provident initially, with no success, Cross Country asked for further information from Hill about the 2002 Deed of Trust loan. Hill gave Cross Country what she thought was the co rrect accou nt numb er at Provid ent, number 96021899. This account number, as it turns out, was for the original 1999 loan on the Property, not the 2002 loan. Hill also supplied to Cross Country Sasso's death certificate, which contained such information as S asso's Social Security Numb er.1 Cross Cou ntry, using the ac count num ber provid ed by Hill, con tacted Prov ident again in an effort to obtain payoff information for the 2002 loan. Providen t responde d on 6 July

Appare ntly unrecognized by the participants, a link to the answer to th e mystery of the ostensibly unreleased 2002 Deed of Trust and loan was hidden in plain sight. In the bottom right corner of the 2002 Deed of Trust appears the super-imposed number 96038807, which, as hindsight reveals, was the correct account number at Provident for the 2002 loan. This is but one of several critical junctures in a parade of miscue s where the legal morass that this case became might have been averted. -2-

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2004 with a letter stating "the above referenced loan was paid in full on October 30, 2002. Deed and Certificate of Satisfaction sent to customer on January 24, 2003." Cross C ountry nonetheless deemed it odd that a loa n wo uld b e paid in f ull only fiv e days after it had been executed and recorded. Cross Country renewed its request to Provident for payoff

information for the 2002 loan. Provident responded by faxing a copy of the 6 July 2004 letter to Cross C ountry, with a cover sheet that said, "[t]his was faxed to you on 7-6-04. PS Loan has been pd in full." There is nothing in the record to indicate tha t Cross Country solicited a confirmatory release or certificate of satisfaction from Provident regarding the 2002 loan. The Hill-Mse ka closing o n the Prop erty occurred o n 15 July 200 4. At settlement, Raras claimed, in her summ ary judgment affidavit, that Hill inquired a bout a Provident account being paid off. Raras showed Hill the 6 July 2004 payoff letter from Provident and inquired as to wheth er there were o utstand ing mo rtgages on the P roperty. Hill responded that the Provident account she had in mind when earlier she supplied the number 96021899 was a credit card account in he r mother's name. Raras also claims that Hill informed her that the payoff letter from Provident w as accurate. The form "Owner's Affidavit" signed by Hill at closing states, "THAT no agreement or contract for conveyance, or deed, conveyance, written lease, or writing whatsoever, is in existence, adversely affecting the title to said premises, excep t that in co nnectio n with w hich this Affid avit is giv en." 2 The settlement

Later, when the litigation that is the present case was before the Circuit Court for Baltimore County, the Circuit Court, in dismissing certain counts in the Fourth Amended (contin ued...) -3-

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proceeded, with Hill receiving the proceeds of the sale of the Property without deduction for any amount d ue on the 2 002 Prov ident loan. C ross Cou ntry, as agent fo r Stewart T itle Guaranty Com pany ("Stewart"), issued a title insurance po licy to the Buyer.3 On 16 September 2004, two months after the closing and the last payment on the 2002 loan, Provident faxed Cross Country a payoff sheet for the outstanding loan, account number 96038807. The am ount of the payoff was $70,261.26. On 21 September 2004, Cross Country sent a letter to Hill demanding that Hill "forw ard to Cross Country Settlements, LLC a certified check [for $70,261.26] made payable to Provident Bank . . . ." Hill did not respond to the de mand letter. On 22 December 2004, Provident informed the Buyer that the Property would be sold at foreclosure in early 2005. Provident initiated foreclosu re

proceedings in the Circuit Court for B altimore City. The Bu yer made a c laim agains t her title insurer, Stewart. Stewart paid the $70,261.26 to Provident, without apparent protest or mounting a defense to the foreclosure on behalf of the Buyer, its insured. Because the title insurance policy was not made a part of the record here, there is no basis upon which to eval uate Stew art's d ecision to pay. Stewart then mad e deman d upon its issuing agent, Cross Country, for reimbursement of the funds paid to Provident. Cross Country paid Stewart on 18 February 2005. Cross (...continued) Comp laint, stated, "one fact is clear; it is the opinion of this Court that [Hill] did not intentionally utter a false representation with the inten t to deceive or defraud [Cross Coun try]."
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No co py of this p olicy or an y of its term s were made a part of the reco rd. -4-

Country claims it wa s required to reimburse Stewart b y the terms of an underwriting agreement between them, although that agreement also was not made part of the record. The sole basis in the record in suppo rt of Cross Country's claim that it was obligated by contract to reimburse Stewart is a bare assertion to that effect in the affidavit of Raras. Cross Country filed its first Complaint against Hill on 12 November 2004 in the Circuit Court for B altim ore C ounty. 4 After a series of dismissals and amended complaints, the Fourth A mended Comp laint (the final c omplaint) and Cross Country's motion for partial summa ry judgment w ere filed on 8 Marc h 2005, af ter Cross C ountry paid S tewart. The Fourth Amended Complaint contained five counts: intentional misrepresentation, intentional misrepresentation - concealment, negligent m isrepresenta tion, unjust en richment, and monies had and r eceived. T he misrep resentation c ounts we re dismissed by the Circuit Court on Hill's motion on 5 October 2005.5 Upon the parties' cross-m otions for summ ary judgmen t,6 the Circuit Court granted summary judgment to Cross Country on Count IV,

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Hill, the defendant, was a resident of Baltimore County at the time.

Hill filed a mo tion to dismiss all counts. The motion was granted only as to the three misrepresentation counts. The motion was denied as to the remaining two claims, unjust enrichment and monies had and received. The Circuit Court's Memorandum Opinion and Ruling, dated 5 October 2005, purported to hold that "[ Cross C ountry] is entitled to restitutionary relief inc luding [Cros s Cou ntry's] fifth claim o f Mo nies H ad and Receiv ed." Such a ruling was improper in disposition of a motion to dismiss, and is entitled to no legal force o r effec t. Cross Country supported its m otion for su mmary judg ment with Raras's aff idavit. Hill filed no affidavit, either in support of its counter-motion o r in opposition to R aras 's affida vit. -56

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unjust enrichment, on 2 December 2005.7 Hill filed a timely appeal to the Court of Special Appeals. The intermediate appellate court, in a reported opinion, affirmed the judgment of the trial cou rt. Hill v. Cross Country Settlements, LLC, 172 Md. App. 350, 914 A.2d 231 (2007). We granted certiorari, on Hill's petition, to consider whether the trial court was correct in gran ting sum mary jud gmen t to Cro ss Cou ntry. Hill v. Cross Country Settlements, LLC , 398 Md. 314 , 920 A.2d 105 8 (2007). 8

Cross Country moved f or summary judgment only on the unjust enrichment claim. Thus, it is the o nly claim at issue b efore this C ourt.
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Hill's Petition for W rit of Certiorari presented three questions for our consideration: I. Where, in response to a payoff request, a lender issues two written payoff statements to a settlement company, which unequivo cally state that there is no balance due und er a mortgage, and the settlement company, acting in reliance upon those representations, disburses the net settlement funds to the seller, is that lender estopped from later foreclosing against the property to recover the amount which it subsequently contends it discovered was due under the mortgage? II. Where the lender described above forecloses against the property to collect the amount it claims to have erroneou sly left out of the payof f statements, and the bu yer makes a c laim against the title insurer, if th e title insurer m erely pays the lender instead of defending on the basis of estoppel, is the settlement company liable to indem nify the title insurer? III. Where th e settlem ent c omp any described above m erely reimburses the title insurer instead of defending on the basis that it did not com mit any error in conducting the settlement, may the settlement company bring an unjust enrichment action against the seller of the house for reimbursement of the amount which the settlement compan y paid to the title insurer? -6-

II. Maryland law is well settled regarding the appellate standards to be ap plied in reviewing a grant of summ ary judgment. Summ ary judgment is approp riate where "there is no genuine dispute as to any material fact" and "the party in whose favor judgment is entered is entitled to judgment as a matter of law." Maryland Rule 2-501(f). "In granting or denying a motion for summary judgment, a judge makes no findings of fact." King v. Bankerd , 303 Md. 98, 111, 49 2 A.2d 6 08, 615 (1 985). The appellate court will "re view the re cord in the light most favo rable to the nonmoving party and construe any reasonable inferences that may be drawn from the facts against the moving party." Myers v. Kayhoe, 391 Md. 188, 203, 892 A.2d 520, 529 (2006). "In reviewing a grant of summary judgment under Md. Rule 2-501, we inde pendently rev iew the recor d to d eterm ine w heth er the par ties p rope rly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law ." Wells Fargo Home Mortgage, Inc. v. Neal , 398 Md. 705, 714, 922 A.2d 538, 543 (2007) (quoting Livesay v. Baltimore County, 384 Md. 1, 9-10, 862 A.2d 33 , 38 (2004)). As iterated above, if there is a genuine dispute as to an y material fact, summary judgment is improper. Even where the underlying facts are undisputed, "if they [are] susceptible of more than one inference, the party against whom inference s [are] to be drawn . . . [is] entitled to the inferences most favorable to his contentions." Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 14, 155 A.2d 691, 693 (1959) (citing White v. Friel, 210 Md. 274, 285, 123 A.2d 303, 308 (1956)). If the facts are subject to more than one inference, those

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inferences should be submitted to the tr ier of fa ct. Porter v. Gen. Boiler Casing Co., 284 Md. 402, 413, 396 A.2d 10 90, 1096 (1979); Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138, 265 A.2d 256, 258 (1970 ). III. In 2000, this Court identified the elements of a claim of unjust enrichment, 9

previously considered by the Court of Special Appeals in Everhart v. Miles, 47 Md. App. 131, 136, 422 A.2d 28, 31 (1980). Unjust enrichment consists of three elements: 1. A benefit conferred upon the defendant by the plaintiff; 2. An appreciation or knowledge by the defendant of the benefit; and 3. The acceptance or retention by the defendant of the benef it under such circum stances as to make it inequitable for the defendant to retain the be nefit without the payment of its value. Berry & Gould, P.A. v. Berry , 360 Md. 142, 151-152, 757 A.2d 108, 113 (2000) (quoting County Comm'rs v. J. Roland Dashiell & Sons, Inc., 358 Md. 83, 95 n. 7, 747 A.2d 600, 607 n. 7 (2000)).

Because of chaotic and disjointe d develop ment in this area, the body of law of unjust enrichme nt, restitution, subrogation, and related causes an d remedie s is both voluminous and disorganized. See D ANIEL B. D OBBS, H ANDBOOK ON THE L AW OF R EMEDIES

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