US Bank National Assoc. v. Finkel, L.

J-A30003-16
                            2017 PA Super 158

US BANK NATIONAL ASSOCIATION, AS               IN THE SUPERIOR COURT OF
TRUSTEE FOR WELLS FARGO                              PENNSYLVANIA
ALTERNATIVE LOAN TRUST, SERIES
2005-1
                   Appellee


                   v.

LESLIE M. FINKEL A/K/A LESLIE M.
ALTIERI AND ALEXANDER BRYAN
ALTIERI
                    Appellants
                                                    No. 252 EDA 2016


          Appeal from the Judgment Entered December 15, 2015
          In the Court of Common Pleas of Northampton County
                   Civil Division at No(s): 2011-C-5023


BEFORE: BOWES, OLSON AND STABILE, JJ.

OPINION BY BOWES, J.:                                 FILED MAY 23, 2017

     Leslie M. Finkel a/k/a Leslie M. Altieri and Alexander Bryan Altieri

appeal from the judgment entered December 15, 2015, in favor of U.S.

National Association (the “Bank”) as Trustee for Wells Fargo Alternative Loan

Trust, Series 2005-1. Appellants challenge the trial court’s June 26, 2013

order, as amended July 29, 2013, granting partial summary judgment in

favor of the Bank and imposing an equitable lien on Appellants’ property.

After careful review, we vacate the judgment and remand for further

proceedings in accordance herewith.

     The record indicates that, on March 12, 2004, Leslie Finkel individually

secured a $300,000 mortgage with Wells Fargo to purchase a residence
J-A30003-16



located    at   4120     Douglas     Drive,      Bethlehem,      Northampton       County,

Pennsylvania (the “Property”). She purchased the Property with Alexander

Bryan Altieri, who was then her boyfriend. Mr. Altieri neither applied for nor

executed the mortgage.            Rather, he contributed $300,000 in cash to

purchase the Property.

       Ms. Finkel and Mr. Altieri were present at closing. Both of their names

appeared on the deed to the Property as grantees. Ms. Finkel executed the

mortgage and note, which were in her name alone. She also signed various

notices and documents associated with the mortgage. A HUD-1 statement

bears the signatures of Ms. Finkel and Mr. Altieri on the lines designated for

“Borrowers,”1 although neither of them recalled signing the document at

closing.

       In 2004, the mortgage was assigned to the Bank. Ms. Finkel and Mr.

Altieri married on June 12, 2004, and continued to live at the Property. In

February 2009, the mortgage was allegedly in default. On August 11, 2010,

Ms.   Finkel    penned    the    first   of    three   letters   to   the   Bank   seeking

accommodation. She explained therein the reasons for the arrears on “our”

mortgage, and how “they” intended to pay them.



____________________________________________


1
   Mr. Altieri is legally blind. He purportedly placed his mark on the
document but his name was signed by another.



                                              -2-
J-A30003-16



     On June 2, 2011, the Bank commenced this action to reform the

mortgage to add Mr. Altieri as a mortgage obligor on the Property. In the

alternative, the Bank sought imposition of an equitable lien. The Bank pled

that Mr. Altieri was not on the mortgage due to a “mutual mistake” which

did not reflect the true intentions of the parties.     Amended Complaint,

8/15/11, at ¶10.     Appellants filed preliminary objections to the complaint

and amended complaint, which were overruled.       In their Answer and New

Matter, Appellants denied that there was any mutual mistake, and averred

that the mortgage, which was prepared by the Bank, was never intended to

be in Mr. Altieri’s name.     Answer and New Matter and Counterclaims,

1/30/12, at ¶¶4, 5, 7. Appellants further alleged that the Bank “specifically

and purposefully excluded [Alexander] Altieri from the loan.”     Id. at ¶10.

They also filed counterclaims asserting violations of the Unfair Trade

Practices and Consumer Protection Law, the Fair Debt Collection Practices

Act, the Fair Credit Extension Uniformity Act, and the Equal Credit

Opportunity Act.

     At the close of the pleadings, the Bank moved for partial summary

judgment on the equitable lien claim. At that point, minimal discovery was

completed.     The     Bank   had   propounded   requests   for   admissions,

interrogatories, and requests for      production of documents to      which

Appellants had responded.      The trial court, by order of June 26, 2013,

granted the Bank’s request for partial summary judgment on the equitable

                                     -3-
J-A30003-16



lien claim, basing its decision on the HUD-1 form designating Mr. Altieri as a

“Borrower,” Appellants’ responses to requests for admission Nos. 6 and 8,

Ms. Finkel’s letters to the Bank, and Mr. Altieri’s presence at the closing on

the Property.

       On July 3, 2013, Appellants asked the trial court to amend its order to

include a determination of finality pursuant to Pa.R.A.P. 341(c), to permit an

immediate appeal to this Court, which the trial court denied.       The Bank

sought clarification of whether the June 26, 2013 order imposing the

equitable lien was interim or permanent relief.       By order dated July 29,

2013, the court amended its earlier order to clarify that the equitable lien

was indeed permanent and independent of the mortgage reformation claim.

       On August 30, 2013, Appellants filed an appeal to this Court from the

order granting partial summary judgment.         This Court quashed the appeal

on March 20, 2014, as interlocutory. U.S. Bank National Association v.

Finkel, 100 A.3d 313 (Pa.Super. 2014) (unpublished memorandum).2

       Discovery continued on Appellants’ counterclaims. On June 10, 2015,

the Bank filed a second motion for summary judgment on those claims.

Appellants sought reconsideration of the June 2013 order, as amended July

____________________________________________


2
  This Court ruled that Appellants’ prior appeal was not taken from a final
order. Furthermore, we rejected Appellants’ contention that it was an
interlocutory appeal as of right from an attachment pursuant to Pa.R.A.P.
311(2).



                                           -4-
J-A30003-16



2013, which imposed the equitable lien.        By order dated December 15,

2015, the trial court granted the Bank’s motion for summary judgment and

denied reconsideration, thus finally disposing of all claims.

      Appellants timely appealed and present three questions for our review:

      A. Whether the trial court failed to properly apply the standard
         applicable to summary judgment motions under Rule
         1035.2(1)?

      B. Whether it was an error of law to conclude that no showing of
         injustice or unjust enrichment was required to establish an
         equitable lien?

      C. Whether the court erred in failing to consider the nature in
         which title was held?

Appellants’ brief at 4 (unnecessary capitalization omitted).

      Summary judgment is proper “only where there is no genuine issue as

to any material fact and it is clear that the moving party is entitled to

judgment as a matter of law.” Daley v. A.W. Chesterton, Inc., 37 A.3d

1175, 1179 (Pa. 2012).         In determining whether to grant summary

judgment, “the trial court must take all facts of record and reasonable

inferences therefrom in a light most favorable to the non-moving party” and

resolve all doubts as to the existence of a genuine issue of material fact

against the moving party.”     Nationwide Mut. Fire Ins. Co. v. Modern

Gas, 143 A.3d 412, 415 (Pa. 2016).

      In reviewing the propriety of a trial court’s grant of summary

judgment, an appellate court also views the record in the light most



                                      -5-
J-A30003-16



favorable to the non-moving party.      The issue as to whether there are

genuine issues as to any material fact presents a question of law, and

therefore, our standard of review is de novo, and we need not defer to the

determinations made by the trial court. Id. at 415. “[A]ll doubts as to the

existence of a genuine issue of material fact must be resolved against the

moving party.” Daley, supra at 1179. We will reverse the order of the trial

court “only where it is established that the court committed an error of law

or abused its discretion.”   Phillips v. Lock, 86 A.3d 906, 912 (Pa.Super.

2014).

      Appellants characterize the motion for summary judgment herein as

one filed prior to the completion of discovery pursuant to Pa.R.C.P.

1035.2(1).    They maintain that summary judgment on this basis is only

appropriate in cases where there is no dispute regarding a material fact, and

that genuine issues of material fact precluded summary judgment herein.

They contend that the purported admissions relied upon by the court were

not admissions.   Furthermore, Appellants contend that the court ignored

factual issues, resolved credibility issues, and refused to permit evidence on

equitable defenses.    In sum, Appellants allege that the court erred in

granting summary judgment on the equitable lien claim.

      In order to determine whether there were genuine issues of material

fact that precluded the entry of summary judgment, it is first necessary to

determine what facts were material to the equitable lien claim at issue. “An

                                    -6-
J-A30003-16



equitable lien arises from an obligation, usually monetary in nature, owing

by one person to another, a res to which that obligation attaches, and an

intent by all parties that the property serve as security for the payment of

the obligation.”   Kern v. Kern, 892 A.2d 1, 8 (Pa.Super. 2005); Hoza v.

Hoza, 448 A.2d 100 (Pa.Super. 1982). Such a lien is appropriate where the

defendant’s interest in the property is subject to an obligation owed to the

plaintiff. Hoza, supra at 104. As this Court held in R.M. Shoemaker &

Co. v. Southeastern Pennsylvania Economic Development Corp., 419

A.2d 60, 63 (Pa.Super. 1980), “an equitable lien arises from a contract

indicating an intent to make certain property security for an obligation or

from a situation which otherwise would result in unjust enrichment.”       See

also 22 P.L.E., Liens § 3; Gladowski v. Felczak, 31 A.2d 718 (Pa. 1943).

      In Mermon v. Mermon, 390 A.2d 796, 799 (Pa.Super. 1978), we

noted that a right to an equitable lien requires evidence that is “clear,

precise and indubitable as to the intention of the parties.”      Furthermore,

before the lien can be imposed upon a particular parcel of property to secure

a debt, “there must be an agreement sufficiently clear and unambiguous

evidencing such intent.” Mermon, at 800. We held in Mermon that “[t]he

mere borrowing of money does not in itself give a lender a lien and ‘in the

absence of a showing of an intent to create it, an equitable lien will not arise

in favor of one who advances money to pay the purchase price of realty.’”

Id.

                                     -7-
J-A30003-16



      The trial court found that the Appellants’ responses to request for

admissions numbers 6 and 8 “established that the Defendants have admitted

to each element of an equitable lien.” Order, 6/26/13, at 5. Specifically, the

court found that Appellants admitted that “the mortgage was a purchase

money mortgage obtained for acquiring the Property,” and that “the

Defendants    intended   that   the   Property   served   as   security    for   the

mortgage[,]” although Ms. Finkel denied that Mr. Altieri was a party to the

mortgage. Id. It concluded further that Ms. Finkel admitted in her Answer

that the mortgage was issued with the Property as security.               The court

viewed Ms. Finkel’s response, “standing alone,” as enough to establish the

first requirement for an equitable lien.

      The court also found that Mr. Altieri’s signature on the HUD-1 form on

the line designated “Borrower” constituted an admission of his intent.

Although Mr. Altieri expressly denied that he was a party to the mortgage, a

fact supported by the document itself, the court found that references in

letters penned by Ms. Finkel to “our mortgage,” “our monthly payment” and

“when we set up our mortgage,” together with the signed HUD-1 form,

satisfied the “obligation requirement for an equitable lien.” Id. Finally, Mr.

Altieri’s presence at closing, his subsequent marriage to Ms. Finkel, and his

status as owner of the property demonstrated the requisite intent.

      Appellants challenge the adequacy of the record in support of partial

summary judgment, and dispute the weight accorded by the trial court to

                                      -8-
J-A30003-16



the HUD-1 statement and the purported admissions.          They argue that the

HUD-1 form bearing Mr. Altieri’s signature did not constitute proof of his

intent to be obligated on the mortgage. Furthermore, they assert that an

equitable lien requires proof of the requisite intent of all parties to the

transaction. They contend that the Bank failed to adduce any evidence that

it intended to include Mr. Altieri on the mortgage, and it was the Bank’s

burden to prove such intent. Appellants allege further that, since there was

no agreement evidencing that intent, and the mortgage itself would

seemingly refute such a notion, the Bank was required to prove unjust

enrichment or some other basis for imposing the lien, which it failed to do.

        Additionally, Appellants allege that the court ignored their unclean

hands defense.     They maintain that subsequent discovery proved that the

Bank structured this transaction so that Ms. Finkel alone could obtain the

financing, and it deliberately avoided participation by Mr. Altieri, who had a

poor credit rating, to achieve that end. Appellants argue that the trial court

failed to consider the entire record, to review it in the light most favorable to

them as the non-moving party, and to recognize that additional discovery

would lead to evidence material to the defense.       Finally, Appellants assert

the trial court resolved issues of fact that should have been reserved for the

jury.

        We note at the outset that the equitable lien was granted on a scanty

record after only preliminary discovery.          Furthermore, while it was

                                      -9-
J-A30003-16



undisputed that Ms. Finkel owed a monetary obligation to the Bank based on

the mortgage, Appellants contested Mr. Altieri’s obligation.   Even the trial

court acknowledged that Mr. Altieri was not designated as a mortgagor, he

did not sign that instrument or the note, and he denied any intent to be

bound by the mortgage obligation.

      The first question presented herein is whether there was any

agreement indicating an intent by all parties to the transaction that the

entire Property, not just Ms. Finkel’s interest, serve as security for the

payment of the mortgage.     Ms. Finkel denied any intent to encumber Mr.

Altieri’s share of the property and Mr. Altieri denied any intent that his

interest be subject to the mortgage. Appellants contend further that their

responses to requests for admissions are incapable of the construction

placed upon them by the court and do not excuse the requirement of an

agreement.    Appellants also allege that the Bank intentionally omitted Mr.

Altieri from the mortgage so that his poor credit rating would not impede Ms.

Finkel’s qualification for financing. The Bank pled that his omission from the

mortgage was a mutual mistake but offered no proof in support of that

position.

      Viewing the record as of the entry of summary judgment, we agree

with Appellants that the purported admissions did not suffice to prove the

requisite agreement and intent of the parties. Request for admission No. 6

asked Appellants to admit that, “The Mortgage is a purchase money

                                    - 10 -
J-A30003-16



mortgage and was obtained for the express purpose of Defendants acquiring

ownership of the 4120 Douglas Drive premises.” Appellants’ response to the

request was “Admitted in part; denied in part.” Appellants admitted that the

mortgage was a purchase money mortgage. They denied the statement “to

the extent that it indicates that Defendant, Alexander Bryan Altieri, obtained

the mortgage or intended to be bound by the same.”

      Request for admission No. 8, which the trial court deemed conclusive,

actually reads as follows:

      8. Both Defendants intended that the 4120 Douglas Drive
      premises serve as security for the loan secured by the Mortgage.

      Admitted in part, denied in part.

      It is admitted that the Defendant, Leslie M. Finkel (a/k/a Leslie
      M. Altieri), intended that 4120 Douglas Drive serve as security
      for her obligation. However, the Defendants must qualify their
      response and deny certain portions as standing alone outside of
      the context of the whole truth such response conveys an unfair
      or unwarranted inference.      In regard to the Defendant,
      Alexander Bryan Altieri, such statement is denied as he
      only intended that the mortgage have the legal effect to
      which it states and he never had any obligation under the
      note or mortgage which would encumber his ownership
      interest. The transaction was intended to be a loan on the
      part of Leslie M. Finkel (a/k/a Leslie M. Altieri) for a
      property owned by both Defendants. The Defendants
      make no admission related to the legal significance of the
      document. . . .

Plaintiff’s Requests for Admission, No. 8 (emphasis added).

      The court construed this response as a binding admission of intent on

Mr. Altieri’s part to be obligated under the mortgage. We do not. A request



                                    - 11 -
J-A30003-16



for admission may relate to statements, opinions of fact, the application of

law to fact, or to questions regarding the authenticity, execution, signing,

receipt of documents. Pa.R.C.P. 4014(a). The Rule requires that “[a] denial

shall fairly meet the substance of the requested admission, and when good

faith requires that a party qualify the answer or deny only a part of the

matter of which an admission is requested, the party shall specify so much

of it as is true and qualify or deny the remainder.” Id. While “Any matter

admitted under this rule is conclusively established,” Pa.R.C.P. 4014(d), we

have discouraged an inflexible application of the rule. We are mindful that

Rule 4014 was designed to ensure that a case was determined on its merits,

not disposed of summarily. Coleman v. Wyeth Pharms., Inc., 6 A.3d 502

(Pa.Super. 2010). Moreover, the failure to deny conclusions of law are not

deemed admissions as they are not within the permissible scope of such a

request.

        Request for admission No. 8 asked Appellants to admit or deny

whether they intended that the Property serve as security for the mortgage

loan.   A fair reading of the response is that Ms. Finkel intended that the

mortgage secure her interest in the Property; Mr. Altieri denied any

obligation under the note or mortgage that would encumber his ownership




                                   - 12 -
J-A30003-16



interest and he intended that the mortgage have that stated legal effect.3

When viewed in the light most favorable to the non-moving party, we do not

view this response as an admission that Mr. Altieri intended to encumber his

interest in the Property.

       Furthermore, we agree with Mr. Altieri that the Bank bore the burden

of proving that all parties intended that the Property act as security for the

mortgage as a prerequisite for an equitable lien.          The Bank failed to

conclusively establish that it intended that Mr. Altieri be obligated on the

mortgage.      The importance of this factor is evident in Mermon, supra.

Therein, the parents paid the purchase price for property deeded in the

name of their son and daughter-in-law, and provided funds for furnishings.

There was no written agreement between the parents and children at the

time of the transaction.       Nine months later, the son wrote a letter to his

parents and sister conveying his intent to pay off the loan that his parents

gave him for the purchase of the home and furnishings. Approximately one

and one-half years later, the daughter-in-law filed a complaint in divorce
____________________________________________


3
  Appellants’ view is consistent with the law of this Commonwealth. Two
unmarried parties are presumed to hold title as tenants in common unless
there is specific intent of survivorship. See Ladner on Pennsylvania Real
Estate Law. Each tenant in common may convey, encumber or devise his or
her undivided interest in real property. Id. at Section 8.03, p. 8-6 (Bisel 5th
ed. 2006). Additionally, this Commonwealth subscribes to the theory that a
mortgage constitutes a lien solely on the mortgagor's interest. In re City of
Philadelphia, 63 A.2d 42 (Pa. 1949).



                                          - 13 -
J-A30003-16



against the son. Thereafter, the parents filed a complaint in equity seeking

imposition of either a resulting trust or an equitable lien on the property.

      We affirmed the trial court’s denial of relief under either theory.

Absent was a clear and unambiguous agreement evidencing the intent to

have the property secure payment of the obligation required for imposition

of an equitable lien.   We held that “in the absence of a showing of an

intention to create it, an equitable lien will not arise in favor of one who

advances money to pay the purchase price of realty.” Mermon, supra at

800. Parents failed to adduce sufficient proof of the intent on the part of all

parties.

      Although the trial court acknowledged that Mr. Altieri was not a party

to the mortgage and that he denied any intention to be bound by the

mortgage, the court found Ms. Finkel’s references to “our mortgage,” “our

monthly payment” and “when we set up our mortgage,” together with the

signed HUD-1 form, to be adequate refutation. We disagree. Ms. Finkel’s

2010 and 2012 letters to the Bank are certainly not conclusive proof of Mr.

Altieri’s intent in 2004. In treating those comments as admissions, the trial

court resolved genuine issues of material fact.

      Finally, it was controverted that Mr. Alteri’s purported signature on the

HUD-1 form evidenced an agreement to be obligated as a Borrower on the

mortgage entered into by Ms. Finkel. The form details the apportionment of

fees, costs and taxes due at a property closing. We note that the form itself

                                     - 14 -
J-A30003-16



states that the signature of the “Borrower” is merely an acknowledgement of

receipt of the document. (“The undersigned hereby acknowledges receipt of

a completed copy of pages 1 & 2 of this statement & any attachments

referred to herein.”). HUD-1 form. Thus, at most, the HUD-1 form raised

genuine issues of fact regarding Mr. Altieri’s intent. Based on the foregoing,

we conclude partial summary judgment on the equitable lien was improperly

entered as there were genuine issues of fact for the trier of fact.

      Subsequent discovery further substantiates our conclusion.      On June

11, 2015, Appellants filed a motion for reconsideration of the grant of partial

summary judgment on the equitable lien, averring that evidence gleaned

during further discovery not only justified reconsideration, but undermined

the grant of partial summary judgment. Appellants maintained that, since

the prior order was interlocutory, reconsideration was not time-barred.

Nonetheless, the trial court denied reconsideration.

      We find merit in Appellants’ position. Discovery yielded evidence that

the mortgage transaction was structured as the Bank intended. According to

the loan originator, Evan Shenkman, the loan program was a high risk,

subprime program that required little documentation.        Deposition of Evan

Shenkman, 9/26/13, at 36.      He explained that these types of loans were

based on credit score and down payment, with little concern for the

mortgagor’s source of income. Id. at 29. There was a disincentive to seek

documentation as it could disqualify the applicant. Id. at 35. It was up to

                                     - 15 -
J-A30003-16



buyers to determine who would be on the mortgage and it was not

uncommon for the mortgagor to differ from the grantees on the deed. Id.

at 22.   Mr. Shenkman acknowledged that he, as a loan originator, would

submit a mortgage application that identified the borrower and the person or

persons taking title to the property.      Id. at 24.      He described it as a

streamlined process. He would send signed disclosures, credit reports, and

an   appraisal   would   be   ordered,   together   with   title   insurance   and

homeowner’s insurance. Id. at 42. The Bank prepared the documents.

      Mr. Shenkman further explained that loan originators received a

percentage of the loans they generated for the Bank, and the higher the

volume, the higher the commission.       Id. at 40.   He admitted that he had

discretion to omit individuals from the mortgage who might compromise a

loan, and that he would exercise that discretion typically during the

application process.     To accomplish that end, he would prepare an

application in the name of the individual who wished to secure the loan and

it would not be a joint application. Id. at 204-05, 61-62. After he reviewed

the documents involved in the instant transaction, Mr. Shenkman concluded:

“It appears as though we only wanted to use Leslie as the borrower” and

that she was offering her interest in the property to secure the mortgage.

Id. at 208-09. He found no indication in the paperwork that the Bank did

not understand the nature of the transaction. Id. at 104. He also pointed

out that had the Bank and Mr. Altieri intended that he be obligated under the

                                     - 16 -
J-A30003-16



mortgage, there was no reason why Mr. Altieri could not have taken title to

the Property and signed the mortgage even if he did not personally qualify.

      Mr. Shenkman and the closing officer, William Kays, also debunked the

notion that the HUD-1 form was any type of agreement demonstrating an

intent to be bound by the mortgage obligation. Mr. Shenkman described the

form as “a document, signed at closing, which outlines the fees, loan

amount, and sales price of the transaction.”     Id. at 56.   A title company

would prepare that document, although Mr. Shenkman would receive a copy

of it prior to closing. Mr. Kays acknowledged that it was not uncommon to

have individuals listed on the HUD-1 form who were not on the mortgage,

and that a party’s identification as a “Borrower” on the form did not establish

anything about the party’s intent to be on a mortgage. Deposition of William

Kays, 11/1/13, at 20. Rather, it could simply indicate that an individual had

a role in the transaction such as an ownership interest.           Id. at 71.

Moreover, he stated that it was common to see this scenario when

unmarried individuals were on a deed but not on the mortgage.               He

observed that the HUD-1 form should match up with the Agreement of Sale,

not the mortgage. Id. at 17.

      Furthermore, the mortgage was solely in the name of borrower Leslie

M. Finkel, designated as a single person, and secured “the performance of

Borrower’s covenants and agreements under this Security Instrument and

the Note.” Mortgage, 3/12/04, at 3. It stated, “For this purpose, Borrower

                                    - 17 -
J-A30003-16



does hereby mortgage, grant and convey to Lender the following described

property located in the County of North Hampton . . . See Deed.”           Id.

(emphasis added).     It was apparent from the face of the deed that Ms.

Finkel was not the sole grantee, but that the Property was being conveyed to

Alexander Bryan Altieri and Leslie M. Finkel.    Thus, the documents clearly

revealed that two persons were purchasing the property, only one of whom

was obligated under the mortgage.

      In addition, Appellants maintain that, as tenants in common, the lien

attached solely to Ms. Finkel’s interest in the Property, and that their

subsequent marriage did not alter the nature of their interests in the

Property. The proceeds of the loan were used by Ms. Finkel to purchase her

one-half interest in the Property. Deposition of Leslie Finkel, 7/15/13, at 17.

Mr. Altieri paid $300,000 in cash to purchase his one-half interest in the

Property.   Thus, the record fails to support imposition of an equitable lien

based on the alternative theory that Mr. Altieri was unjustly enriched by the

situation. See R.M. Shoemaker & Co., supra.

      At the very least, there were disputed issues of fact regarding the

existence of an agreement evidencing the requisite intent of all of the parties

herein to have the entire Property secure payment of the obligation.

Certainly, the Bank did not produce an agreement to that effect, or in lieu of

same, clear and unambiguous admissions of such an agreement. There was

proof adduced in discovery that the manner in which the mortgage was

                                    - 18 -
J-A30003-16



structured was consistent with the Bank’s routine practices at the time. If

credited, such evidence would refute any claim that the parties intended that

Mr. Altieri’s interest in the Property secure Ms. Finkel’s obligation. Moreover,

such evidence could support a finding that the Bank had unclean hands in

this transaction. Missing herein is “clear, precise and indubitable” proof as

to the intention of the parties. Mermon. supra at 799.

      Viewing the evidence in the light most favorable to Appellants, as we

must, we find that the trial court improperly dismissed or resolved genuine

issues of material fact in granting partial summary judgment on the

equitable lien claim in favor of the Bank.

      Judgment vacated. Case remanded for further proceedings consistent

with this opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




                                     - 19 -