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2010AP1359 Wachovia Mortgage FSB v. Dallas

Property
Foreclosure; subrogation

Where a mortgagee would be unjustly enriched if she were able to retain her interest in foreclosed property, her motion for reconsideration was properly denied.

“World Savings Bank paid the debt for which Dallas was liable (the mortgage note she signed in connection with the Fair Finance loan) and for which she gave the mortgage to Fair Finance as security. World Savings Bank’s loan thus extinguished the Fair Finance mortgage on Dallas’s interest in the property. Had World Savings Bank not satisfied the Fair Finance mortgage, and had Rogers and Dallas defaulted on the Fair Finance debt, Fair Finance would have been able to foreclose on Dallas’s interest in the property. Wachovia steps into Fair Finance’s shoes, and there is nothing unfair about this result. See Countrywide Home Loans, Inc., 2007 WI App 243, ¶14, 306 Wis. 2d at 208, 742 N.W.2d at 905 (The ‘equitable subrogation doctrine [is] one of “pure, unmixed equity.”’) (quoted source omitted). Indeed, if Dallas were able to retain her interest in the property she and Rogers mortgaged as security for the Fair Finance loan despite the fact that the Fair Finance mortgage was satisfied by the World Savings Bank loan, she would be unjustly enriched at Wachovia’s expense. Significantly, this is not a situation where a financial institution seeks to extract from a person who cosigned only the original debt documents an obligation that is more onerous than that to which the cosigner agreed.”

Affirmed.

Publication in the official reports is recommended.

2010AP1359 Wachovia Mortgage FSB v. Dallas

Dist. I, Milwaukee County, Sosnay, J., Fine, J.

Attorneys: For Appellant: Gruhl, Jonathan A., Glendale; For Respondent: Goodman, Jonathan V., Milwaukee; Bernstein, Aaron J., Milwaukee

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