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STATE OF MICHIGAN COURT OF APPEALS

CAPITAL TITLE INSURANCE AGENCY INC., Plaintiff-Appellant, v TOWNE MORTGAGE COMPANY, FEDERAL NATIONAL MORTGAGE ASSOCIATION, MEMBER FIRST MORTGAGE, L.L.C., and MEMBER FIRST TITLE AGENCY, Defendants-Appellees, and ERIC ERSHER, AMY ERSHER, and ESCROW WORKS, L.L.C., Defendants.

UNPUBLISHED March 10, 2009

No. 278712 Oakland Circuit Court LC No. 2006-075662-CZ

Before: Gleicher, P.J., and Kelly and Murray, JJ. PER CURIAM. This dispute involves the payment of a mortgage in connection with a residential real estate transaction. At closing, plaintiff mistakenly paid $169,567.94, the outstanding amount of the seller's mortgage, to defendant Towne Mortgage Company (Towne Mortgage). Plaintiff sought the return of these monies without success and brought suit against defendants, Towne Mortgage, Federal National Mortgage Association (FNMA), Member First Mortgage, L.L.C (MFM), and Member First Title Agency (MFT).1 The trial court granted summary disposition in defendants' favor and plaintiff appeals as of right. We affirm.

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Plaintiff also brought suit against the sellers, Amy and Eric Ershers, who were voluntarily dismissed, and Escrow Works, L.L.C. (Escrow Works). The parties stipulated to the entry of a consent judgment against Escrow Works for $169,567.94.

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I. Facts Amy and Eric Ersher owned residential property in Sylvan Lake, Michigan. This property was subject to a mortgage held by FNMA and serviced by Towne Mortgage. Plaintiff was the Ershers' title company. The Ershers entered into a contract for the sale of the property to Jennifer and John Hill. In order to complete the purchase, the Hills obtained a lender, MFM, and a title company, MFT, to represent them in their purchase of the property. A closing was held in June 2005, at which both the Ershers and Hills were present, along with plaintiff and Escrow Works, the latter of which was retained by MFT to collect and disburse funds at the closing. Plaintiff acted as a third party creditor at the closing. Neither FNMA, Towne Mortgage, MFM, nor MFT were present at the closing. To satisfy the Ershers' mortgage on the property, plaintiff mistakenly issued a check to Towne Mortgage for $169,567.94. Escrow Works also issued a check to Towne Mortgage for the same amount. Towne Mortgage received plaintiff's check on June 8, 2005 and applied it to the Ershers' mortgage obligation on June 10, 2005. After doing so, Towne Mortgage received Escrow Works's check. On June 13, 2005, Towne Mortgage informed plaintiff that it had received Escrow Works's check, but that it had already deposited plaintiff's check. Towne Mortgage then sent plaintiff Escrow Works's original check. Plaintiff sent the original check to Escrow Works and Escrow Works issued a new check payable to plaintiff. Plaintiff sought to deposit Escrow Works check but it was returned for insufficient funds. Plaintiff then instituted this lawsuit under theories of unjust enrichment, equitable subrogation, and breach of contract seeking return of the money it mistakenly paid. At the close of discovery, the parties cross-motioned for summary disposition under MCR 2.116(C)(8) and MCR 2.116(C)(10). The trial court granted judgment in favor of defendants and this appeal followed. II. Standards of Review This Court reviews a trial court's summary disposition decision de novo. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion under MCR 2.116(C)(10) tests the factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted by the parties and construe that evidence in a light most favorable to the nonmoving party. Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995). Summary disposition should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. In reviewing a court's grant of summary disposition under MCR 2.116(C)(8), we consider the pleadings alone, viewing all the non-moving party's factual allegations as true, and determine whether there is a sufficient legal basis for the claim. Wade v Dep't of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992). Summary disposition under this subrule is proper only where the claims alleged are so clearly unenforceable as a matter of law that "no factual development could justify the . . . claim for relief." Spiek, supra at 337. Unsupported conclusory statements of fact or law are insufficient to state a claim on which relief can be granted. Churella v Pioneer State Mut Ins Co, 258 Mich App 260, 272; 671 NW2d 125 (2003). To the extent that the trial court did not specify on what subrule it was granting defendants' motions, we will construe the ruling as having been granted based on a lack of material factual

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dispute because the court relied on evidence outside the pleadings. Hughes v Region VII Area Agency on Aging, 277 Mich App 268, 273; 744 NW2d 10 (2007). III. Claims Against MFM and MFT A. Unjust Enrichment Plaintiff argues that the trial court erred by dismissing its unjust enrichment claim against MFM and MFT under MCR 2.116(C)(10). Specifically, plaintiff contends that MFM was unjustly enriched because plaintiff paid off the Ershers' mortgage that MFM was allegedly required to pay, thereby extinguishing the Ershers' mortgage, and that MFT was enriched because it would not have to defend against a title claim arising from the Ershers' mortgage. We disagree. Unjust enrichment consists of "(1) the receipt of a benefit by the defendant from the plaintiff and (2) an inequity resulting to the plaintiff because of the [defendant's] retention of that benefit . . . ." Sweet Air Investment, Inc v Kenney, 275 Mich App 492, 504; 739 NW2d 656 (2007) (internal quotation marks and citation omitted). "In other words, the law will imply a contract to prevent unjust enrichment only if the defendant has been unjustly or inequitably enriched at the plaintiff's expense." Morris Pumps v Centerline Piping, Inc, 273 Mich App 187, 195; 729 NW2d 898 (2006). Plaintiff has not shown that either MFM or MFT was unjustly enriched at plaintiff's expense. It is undisputed that neither MFM nor MFT received plaintiff's mistaken payment. MFM and MFT cannot be held liable in equity for money they did not personally receive. Trevor v Fuhrmann, 338 Mich 219, 223-224; 61 NW2d 49 (1953). Furthermore, the benefit that MFM and MFT received as a result of the transaction was only that which they initially expected. MFM satisfied all of its loan obligations by loaning funds to the Hills for the purchase of the Ershers' property and disbursing the proceeds of the Hills' loan. Contrary to plaintiff's allegation, MFM was not required to pay-off the Ershers' mortgage; MFM was required to lend proceeds to the Hills. Consequently, the satisfaction of the Ershers' mortgage, and the return of a promissory note for the loan proceeds secured by a mortgage against the property, was the expected result of MFM's loan transaction with the Hills. This result is the very same benefit that plaintiff contends MFM unjustly received by way of plaintiff's payment of the Ersher mortgage. Thus, it cannot be said that MFM was unjustly enriched at plaintiff's expense because the allegedly unjust benefit is the same benefit that MFM expected and not an independent benefit unjustly received as a result of plaintiff's transaction with Towne Mortgage. See 66 Am Jur 2d, Restitution and Implied Contracts,

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