U.S. Bank v. McAfee, J.

J-A06026-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

U.S. BANK, NATIONAL : IN THE SUPERIOR COURT OF
ASSOCIATION, AS TRUSTEE FOR : PENNSYLVANIA
CREDIT SUISSE FIRST BOSTON :
MORTGAGE SECURITIES CORP., :
HOME EQUITY ASSET TRUST 2006-1, :
HOME EQUITY PASS-THROUGH :
CERTIFICATES, SERIES 2006-1 :
:
Appellant : No. 882 WDA 2022
:
:
v. :
:
:
JILL MCAFEE A/K/A JILL MCFEE AND :
JOHN MCAFEE :

Appeal from the Judgment Entered July 14, 2022
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD16-006717

BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED: May 16, 2023

Appellant U.S. Bank, National Association appeals from the judgment

entered in favor of Jill McAfee (Wife), a/k/a Jill McFee, and John McAfee

(Husband) (collectively, Appellees) after a non-jury trial. Appellant argues

that the trial court erred by admitting evidence of title insurance at trial,

declining to apply the entireties presumption and reform the mortgage on

Appellees’ property, and failing to impose an equitable lien on Appellees’

property. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A06026-23

The trial court summarized the procedural history of this matter as

follows:

The subject property in this case, 212 Maplewood Drive,
Pittsburgh, PA, 15214, was purchased in 2005 (the “Property”).
While the deed lists the grantees as “John McAfee and Jill McAfee,
husband and wife,” the mortgage executed at the closing was
signed only by [Wife], who was also the only person who applied
for the loan used to purchase this property. By virtue of an
assignment of mortgage in November 2012, [Appellant] became
the owner of the mortgage.

[Appellant] initiated this case in 2016 against [Appellees] as the
owners of record in an action to quiet title. Following appellate
review of an initial order granting summary judgment in favor of
[Appellant,][FN1] [Appellant] was granted leave to amend the
complaint to include a count for an equitable lien. Consistent with
the initial complaint, among the relief requested in the amended
complaint was a declaration that the entire Property, including the
ownership interest of [Husband], was subject to the mortgage as
a lien of first priority as of the date of recording on August 2, 2005.
[Appellant] filed a second motion for summary judgment on
September 4, 2019, seeking judgment in its favor based upon
application of the entireties presumption. [Appellant’s] second
motion for summary judgment was denied by the Honorable Judge
Joseph M. James’ order dated June 23, 2020.
[FN1]By order dated June 26, 2017, the Honorable Judge
Joseph M. James granted [Appellant’s] motion for summary
judgment, and declared the mortgage a lien of first priority
against the entire Property [on the theory that Husband’s
omission from the mortgage was a mutual mistake]. On
appeal to the Superior Court, the order was reversed. [U.S.
Bank Nat’l Ass’n for Credit Suisse First Boston
Mortgage Sec. Corp., Home Equity Asset Tr. 2006-1,
Home Equity Pass-Through Certificates, Series 2006-
1 v. McAfee, 1102 WDA 2017, 2018 WL 3721357, at *3
(Pa. Super. filed Aug. 2, 2018) (unpublished mem.).]

Trial Ct. Op., 9/16/22, at 2-3 (some citations omitted and some formatting

altered).

-2-
J-A06026-23

On March 16, 2022, Appellant filed a motion in limine to exclude

evidence relating to Appellant’s title insurance. See Appellant’s Mot. in

Limine, 3/16/22, R.R. at 189a-218a.1 Following a hearing on March 22, 2022,

the trial court denied Appellant’s motion and the matter immediately

proceeded to a non-jury trial. N.T. Trial, 3/22/22, at 19.

The trial court summarized its factual findings as follows:

Unfortunately, [Wife] was unavailable to testify due to a medical
condition and she was not deposed in the matter. However, the
other witnesses with knowledge of the circumstances surrounding
the loan transaction testified that [Wife] alone chose to pursue
purchasing a new home and securing a loan despite [Husband]
informing her that he did not want “anything to do with it.” In his
testimony at trial, [Husband] explained what motivated her to do
so. Before purchasing this house, [Wife] was accidently mistaken
by first responders as the mother of a victim in a gang related, . .
. shooting that took place in Homestead, Pennsylvania. . . .
Following this incident, [Wife] desired to move to the North Hills
and away from Homestead. [Husband], a native of Homestead,
did not want to leave.

[Husband] testified about his lack of involvement in the loan
origination process and about his opposition to being involved in
purchasing the home. [Husband] was not involved in the loan
application process at all because as he testified, he did not want
to move and “did not have anything to do with purchasing [the]
property.” While [Husband] was aware that [Wife] was trying to
____________________________________________

1We may cite to the parties’ initial or supplemental reproduced record for the
parties’ convenience.

We note that neither Appellant’s reproduced record nor Appellees’
supplemental reproduced record contains the proper pagination. See
Pa.R.A.P. 2173 (providing for the format of page numbers for reproduced
records). For that reason, we have added the suffix “a” when citing to
Appellant’s reproduced record and the suffix “b” when citing to Appellees’
supplemental reproduced record. See Petrongola v. Comcast-Spectacor,
L.P., 789 A.2d 204, 207 n.3 (Pa. Super. 2001).

-3-
J-A06026-23

purchase a home, [Husband] did not think that [Wife] would
actually purchase a house or that there would be a move. In
response to a question regarding whether [Husband] told [Wife]
not to take out a mortgage or buy the property, [Husband]
unequivocally stated, “I told her I did not want anything to do with
it, I did not want to live in this house.” He also testified that he
did not even expect to be listed on the deed.

The undersigned found [Husband’s] testimony — that he voiced
opposition to moving and to his involvement in the purchase to
[Wife] — to be credible.

The plan to exclude [Husband] from the loan transaction was
corroborated by David Howe, who in addition to being an
employee of the ambulance service owned by [Husband], worked
in the mortgage origination business in 2005. [Wife] approached
Mr. Howe when she desired to move from Homestead. Mr. Howe
specifically helped [Wife] to shop for banks that would lend to only
one spouse and prepared the loan application only for [Wife]. He
helped her fill out the application and affirmed that [Husband] was
not a part of the process at any time. Mr. Howe did not prepare
the final loan documents or attend the closing; once the
application was submitted to the lender, his part was over.

At trial, [Appellant] called Tonya Johnson . . . who has been
employed by Wells Fargo Bank, the current loan servicer, since
March 12, 2012. She testified that as a loan servicer, Wells Fargo
advances taxes, accepts the mortgage payments, and
communicates with the borrower. Wells Fargo was not the lender
at the time of closing.

As a senior loan documentation specialist, Ms. Johnson reviews
and analyzes business records in preparation for court. Ms.
Johnson testified about the record keeping at Wells Fargo (the
loan servicer) and authenticated the business records. Ms.
Johnson was not involved in the loan application process or loan
closing process nor did she speak to anyone who was in
preparation for her testimony.

Trial Ct. Op. at 3-6.

We add that Ms. Johnson testified that the mortgage has been in default

since 2014. N.T. Trial at 59, 69. Additionally, the trial court admitted into

-4-
J-A06026-23

evidence a letter dated June 2, 2015 from Appellant’s counsel to Appellant’s

title insurance carrier, in which Appellant stated that its title search indicated

that Husband did not execute the mortgage. Id. at 66-68, S.R.R. at 131b-

32b (Defendants’ Exhibit 18).

On March 29, 2022, the trial court entered a verdict in favor of the

Appellees. Appellant filed a timely post-trial motion seeking JNOV, or in the

alternative, a new trial, which the trial court denied. Appellant subsequently

filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b)

statement. The trial court issued a Rule 1925(a) opinion addressing

Appellant’s claims.

Appellant raises the following issues for our review, which we reorder as

follows:

1. Was the trial court’s admission of evidence at trial of title
insurance coverage and/or a pending title insurance claim,
prejudicial error?

2. Was the trial court’s apparent conclusion that the Pennsylvania
entireties presumption was inapplicable as to the validity of the
instant mortgage and the binding nature of same on both
Appellees, unsupported by the evidence and applicable law?

3. Was the trial court’s failure to impose an equitable lien on the
subject Property and on the ownership interests of both
Appellees thereto, unsupported by the evidence and applicable
law?

Appellant’s Brief at 8.

-5-
J-A06026-23

Admission of Evidence Regarding Title Insurance

In its first issue, Appellant argues that the trial court erred in denying

its motion in limine to preclude admission of any evidence relating to

Appellant’s title insurance. Id. at 15-16. Appellant contends that evidence

concerning a party’s insurance coverage is generally inadmissible under

Pa.R.E. 411. Id. at 15. Appellant also argues that such evidence is irrelevant

and prejudicial. Id. at 15-16 (citing, inter alia, Stepanovich v. McGraw, 78

A.3d 1147 (Pa. Super. 2013); Est. of Hannis by Hannis v. Ashland State

Gen. Hosp., 554 A.2d 574, 579 (Pa. Cmwlth. 1989)). Appellant concludes

that the admission of evidence related to title insurance unfairly prejudiced

Appellant. Id. at 16.

With respect to evidentiary rulings, this Court has explained:

Questions concerning the admissibility of evidence lie within the
sound discretion of the trial court, and we will not reverse the
court’s decision absent a clear abuse of discretion. An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support as to be clearly erroneous. In addition, to
constitute reversible error, an evidentiary ruling must not only be
erroneous, but also harmful or prejudicial to the complaining
party.

Crespo v. Hughes, 167 A.3d 168, 177 (Pa. Super. 2017) (citations omitted

and formatting altered).

Pennsylvania Rule of Evidence 411 provides:

Evidence that a person was or was not insured against liability is
not admissible to prove whether the person acted negligently or
otherwise wrongfully. But the court may admit this evidence for

-6-
J-A06026-23

another purpose, such as proving a witness’s bias or prejudice or
proving agency, ownership, or control.

Pa.R.E. 411.

This Court has explained that “the general rule in Pennsylvania is that

evidence of insurance is irrelevant and prejudicial and justifies the grant of a

mistrial. However, the mere mention of the word insurance does not

necessitate a new trial unless the aggrieved party can demonstrate prejudice.”

Allied Elec. Supply Co. v. Roberts, 797 A.2d 362, 364 (Pa. Super. 2002)

(Allied) (citations omitted and formatting altered); see also Est. of Hannis,

554 A.2d at 579 (explaining that “[e]vidence in personal injury action which

informs the jury that a defendant is insured against liability is

inadmissible” (citation omitted and emphasis added)).2

In Stepanovich, the plaintiff sued a defendant-driver for negligence

and also sued the plaintiff’s insurer, State Farm, to recover underinsured

motorist benefits (UIM) in connection with the accident. Stepanovich, 78

A.3d at 1148. The trial court bifurcated the claims, but allowed counsel for

State Farm to participate in the trial on the plaintiff’s negligence claim against

the defendant-driver. Id. at 1149-50. Further, the trial court restricted the

parties from mentioning insurance or identifying State Farm as a defendant
____________________________________________

2 Decisions by the Commonwealth Court may provide persuasive authority,
they are not binding on this Court. See Maryland Cas. Co. v. Odyssey, 894
A.2d 750, 756 n.2 (Pa. Super. 2006). Although Est. of Hannis predates the
adoption of Rule of Evidence 411 in 1998, the Commonwealth Court’s
conclusion that evidence of liability insurance is inadmissible is consistent with
Rule 411. Compare Est. of Hannis, 554 A.2d at 579, with Pa.R.E. 411.

-7-
J-A06026-23

during the trial. Id. at 1150. The jury returned a verdict in favor of the

defendant-driver. Id. The plaintiff filed a post-trial motion seeking a new

trial, arguing that “he was prejudiced by having two parties with the same

interests taking an active role against him when one of the parties was not

identified.” Id. The trial court concluded that it had erred by not identifying

State Farm as a defendant to the jury, that its error violated the plaintiff’s

procedural due process rights, and granted a new trial. Id.

On appeal, this Court observed:

Without specifically stating it, the trial court’s resolution also
recognizes by necessity that Pa.R.E. 411 does not apply to the
instant situation regarding State Farm’s participation in the trial.
Rather, Pa.R.E. 411 prohibits the introduction of liability insurance
into evidence; liability insurance is required coverage providing
indemnity to the alleged tortfeasor for injuries caused to others.
Underinsured motorist benefits are optional benefits purchased by
a motorist for personal protection, but which do not provide
indemnity to the tortfeasor. Therefore, a course of action
identifying State Farm as a party would not necessarily run afoul
of either Rule 411 or [the order bifurcating plaintiff’s claims].

Id. (citations omitted).3

Here, the trial court addressed Appellant’s claim as follows:

Although this court admitted Exhibits D-17[4] and D-18, the
undersigned was not concerned with the existence of title
insurance. These exhibits were admitted only along the limited
____________________________________________

3However, this Court reversed the grant of a new trial because the trial court’s
error did not prejudice the plaintiff. Stepanovich, 78 A.3d at 1151.

4Our review of the record indicates that the trial court only admitted Exhibit
D-18. See N.T. Trial at 29, 66-68; S.R.R. at 26b (list of Appellees’ exhibits
admitted at trial).

-8-
J-A06026-23

lines in the ruling at [N.T. Trial at 18, 66], as probative of
establishing a timeline for purposes of a laches defense. However,
the court’s decision was not based on the defense of laches and
the court did not rely on these exhibits in rendering the non-jury
verdict.

Trial Ct. Op. at 11.

Based on our review of the record, we discern no abuse of discretion in

the trial court’s decision to admit evidence of title insurance. See Crespo,

167 A.3d at 177. Under Rule 411, evidence of liability insurance is not

admissible for purpose of proving a party “acted negligently or otherwise

wrongfully.” See Pa.R.E. 411. However, evidence of insurance may be

admitted for another purpose. See id.; accord Stepanovich, 78 A.3d at

1150. Appellees did not present evidence of title insurance for the purpose of

proving that any party acted negligently or otherwise wrongfully. Instead,

Appellees offered evidence of their title insurance in support of their

affirmative defense of laches. See N.T. Trial at 64-67. Therefore, the trial

court did not abuse its discretion in admitting evidence of Appellant’s title

insurance claim for that purpose.5 Accordingly, Appellant is not entitled to

relief on this claim.

____________________________________________

5 Further, the mere mention of insurance will not result in a new trial absent
prejudice to the aggrieved party. See Allied, 797 A.2d at 364; see also
Crespo, 167 A.3d at 177 (explaining that for an evidentiary ruling to be
reversible error, it must be both erroneous and prejudicial to the complaining
party). Additionally, the trial court, sitting as the fact-finder, is presumed to
have disregarded prejudicial evidence. See, e.g., Commonwealth v. Fears,
836 A.2d 52, 71 n.19 (Pa. 2003). Therefore, Appellant has failed to
demonstrate how it was prejudiced by the admission of evidence of insurance.

-9-
J-A06026-23

Entireties Presumption

In its second issue, Appellant argues that the trial court erred by failing

to apply the entireties presumption to conclude that the mortgage is a lien

against the entire Property, not just Wife’s interest. Appellant’s Brief at 12-

15. Appellant explains that in Pennsylvania, when a married couple owns

property as tenants by the entireties, it is presumed that either spouse may

act on behalf of both spouses regarding that property without specific

authorization. Id. at 12. Appellant claims that the entireties presumption

should apply when “any ‘non-signing’ spouse reaps the benefits of a mortgage

on entireties-owned real estate.” Id. (citing Deutsche Bank Nat. Trust Co.

v. Evans, 421 B.R. 193 (W.D. Pa. 2009) (Evans)). Appellant contends the

trial court erred when it failed to apply the entireties presumption because

Husband did not rebut the entireties presumption by a preponderance of the

evidence. Id. at 13-15 (citing, inter alia, Wykel v. Knapp, 2022 WL 4588361

(Pa. Super. filed Sept. 30, 2022)).6 Appellant concludes that the trial court’s

verdict should be reversed and judgment should be entered in Appellant’s

____________________________________________

6 Appellant filed its brief on October 31, 2022. Appellees respond that Wykel
is no longer controlling because in that case, this Court granted panel
reconsideration and withdrew its September 30, 2022 decision. Appellees’
Brief at 19; see also Wykel v. Knapp, 2185 EDA 2021, 2022 WL 16958919
(Pa. Super. filed Nov. 16, 2022) (per curiam order). Appellees alternatively
argue that even if Wykel were still good law, it is distinguishable from this
case on the facts. Appellees’ Brief at 19-20. Subsequently, this Court issued
an amended opinion on December 20, 2022. See Wykel v. Knapp, 288 A.3d
889 (Pa. Super. 2022), which we discuss below.

- 10 -
J-A06026-23

favor “confirming the mortgage as a valid lien on the entire Property.” Id. at

15.

Our standard of review of a non-jury trial is well settled:

Our appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are supported
by competent evidence and whether the trial court committed
error in any application of the law. The findings of fact of the trial
judge must be given the same weight and effect on appeal as the
verdict of the jury. We consider the evidence in a light most
favorable to the verdict winner. We will reverse the trial court
only if its findings of fact are not supported by competent evidence
in the record or if its findings are premised on an error of law.
However, where the issue concerns a question of law, our scope
of review is plenary.

The trial court’s conclusions of law on appeal originating from a
non-jury trial are not binding on an appellate court because it is
the appellate court’s duty to determine if the trial court correctly
applied the law to the facts of the case.

Moreover, the trial court, as the finder of fact, is free to believe
all, part[,] or none of the evidence presented. Issues of credibility
and conflicts in evidence are for the trial court to resolve; this
Court is not permitted to reexamine the weight and credibility
determination or substitute our judgment for that of the fact
finder.

Davis v. Borough of Montrose, 194 A.3d 597, 605 (Pa. Super. 2018)

(citation omitted and formatting altered); see also Gutteridge v. J3 Energy

Grp., Inc., 165 A.3d 908, 914 (Pa. Super. 2017) (en banc) (stating that

“[w]hen this Court reviews the findings of the trial judge, the evidence is

viewed in the light most favorable to the victorious party below and all

evidence and proper inferences favorable to that party must be taken as true

and all unfavorable inferences rejected” (citation omitted)).

- 11 -
J-A06026-23

It is well established:

A tenancy by the entireties is a form of co-ownership of real or
personal property by husband and wife, with its essential
characteristic being that each spouse is sei[z]ed per tout et non
per my, i.e. of the whole or the entirety and not of a share, moiety
or divisible part.

Fazekas v. Fazekas, 737 A.2d 1262, 1264 (Pa. Super. 1999) (citation

omitted and formatting altered).

This Court has explained:

This form of ownership gives rise to the “entireties presumption,”
which provides that, with respect to properties held by the
entireties during the marriage, either spouse has the power to act
for both without specific authority, so long as the benefits of such
action inure to both. The entireties presumption can be rebutted
by establishing, by a preponderance of the evidence, that a spouse
did not have the other spouse’s tacit authority to act on both
spouses’ behalf.

Wykel, 288 A.3d at 893 (citations omitted and formatting altered); see also

Fazekas, 737 A.2d at 1264 (stating that “[f]or the duration of the entireties

estate, either spouse has the presumptive power to act for both, so long as

both spouses share the proceeds” (citation omitted)).

In Wykel, a married couple executed a mortgage against a property

which they owned as tenants by the entireties. Wykel, 288 A.3d at 891. A

few years later, the husband refinanced the property and executed a new

mortgage, but the wife did not sign any of the documents related to the new

mortgage. Id. The couple used the funds obtained under this new mortgage,

which only the husband had signed, to pay off the prior mortgage, which both

- 12 -
J-A06026-23

spouses had signed. Id. The husband and the wife subsequently divorced,

and litigation ensued to determine whether the new mortgage was a valid lien

against the wife’s interest in the property. Id. at 892. The trial court held

that the new mortgage was a valid lien against the entire property. Id. The

trial court found that the wife had deferred to the husband on financial

matters, including obtaining the new mortgage. Id. at 893. Further, the trial

court held that the wife had failed to prove by a preponderance of the evidence

that the husband did not have her tacit authority to refinance the property,

therefore the entireties presumption applied. Id.

In Evans, a married couple took out a loan, secured by a mortgage, to

purchase real property, which they took title to as tenants by the entireties.

Evans, 421 B.R. at 195.7 The federal district court noted that “[t]he parties

agree that [the wife] had knowledge of, and consented to, the granting of the

mortgage, however, she never signed either the mortgage or the promissory

note. Only [the husband] signed the mortgage as mortgagor.” Id. Because

the wife had knowledge of and consented to the granting of the mortgage, the

district court concluded that the entireties presumption applied. Id. at 197,

200.

____________________________________________

7“Federal district court decisions offer this Court persuasive, but not binding,
authority.” Bank of Am., N.A. v. Scott, 271 A.3d 897, 910 n.6 (Pa. Super.
2022) (citation omitted). We note however, that this Court has cited Evans
with approval regarding the interaction between the entireties presumption
and the statute of frauds. See Wykel, 288 A.3d at 894-95, 894 n.2 (citing
Evans, 421 B.R. at 199).

- 13 -
J-A06026-23

However, instantly, the trial court concluded:

Here, [Husband] testified, “I told [Wife] I did not want anything
to do with it, I did not want to live in this house.” [N.T. Trial at
74]. He also affirmed that he expected her to be liable if she
carried out a plan he wanted nothing to do with. [Id. at 76].
While the record reflected that his own indebtedness was a
consideration for [Wife] applying for a loan in her name only,
[Husband] was clear that he played no active role at all in
shopping for or applying for loans to purchase the house because
he was opposed to the move and [Wife] was aware of this. See
Exhibits D-4, D-5, and D-6.[8] The fact that [Husband] ultimately
moved to stay with his wife and child does not invalidate the fact
that [Wife] was not authorized to bind him in connection with the
loan and mortgage. They were simply not in agreement about
purchasing the home and moving.

Ms. Johnson’s testimony about the [loan] servicer file also
demonstrated the intentional lack of participation by [Husband].
The mortgage document did not contain a line for [Husband’s]
signature. Even so, [Husband] could have signed a separate
document as a non-borrower that acknowledged that the whole
property was encumbered. [N.T. Trial at 66, 70]. However, it
appears that there was no such document in the file. Ms. Johnson
did not recall any document with [Husband’s] name on it in the
servicer file. [Id. at 70-71].

For all of the reasons discussed above, this court found that the
entireties presumption was rebutted by credible testimony that
[Husband] expressed his opposition to purchasing a house and
moving out of Homestead, that [Husband] played no role in the
loan application process, and the structuring of the mortgage was
intentional on the part of the parties to the transaction.

Trial Ct. Op. at 9-11 (some citations omitted).

Based on our review of the record, we discern no error in the trial court’s

conclusions. See Davis, 194 A.3d at 605. The facts of this case are unlike

____________________________________________

8 S.R.R. at 37b-39b.

- 14 -
J-A06026-23

the facts of Wykel or Evans. In Wykel, the trial court made findings of fact

that the wife deferred to the husband on financial matters. See Wykel, 288

A.3d at 893. Therefore, the trial court held that the wife had failed to rebut

the entireties presumption with evidence that her husband did not have her

tacit authority to take out a new mortgage. See id. In Evans, the district

court concluded that the entireties presumption applied because it was

undisputed that the wife consented to the granting of the mortgage although

the husband was the sole party who signed the mortgage documents. See

Evans, 421 B.R. at 195, 197, 200.

Here, the trial court found that Husband had rebutted the entireties

presumption with credible testimony that he opposed Wife’s decision to obtain

a mortgage loan to purchase the Property and that Wife did not have authority

to bind Husband in connection with the mortgage. See Trial Ct Op. at 9-11;

see also Davis, 194 A.3d at 605 (stating that “this Court is not permitted to

reexamine the weight and credibility determination or substitute our judgment

for that of the fact finder” (citation omitted)). Viewing the evidence in the

light most favorable to Appellees as the verdict winner, we conclude that

Husband rebutted the entireties presumption by a preponderance of the

evidence. See Wykel, 288 A.3d at 893. Therefore, Appellant is not entitled

to relief on this claim.

Equitable Lien

Lastly, Appellant argues that the trial court erred by failing to grant

Appellant an equitable lien against the Property. Appellant’s Brief at 17-19.

- 15 -
J-A06026-23

In support, Appellant asserts that the three elements necessary to establish

an equitable lien are present in this case, including “an obligation owing from

one to another, a res to which such obligation attaches, and an intent that the

res be security for payment of the obligation.” Id. at 17 (citing Mermon v.

Mermon, 390 A.2d 796 (Pa. Super. 1978)). Specifically, Appellant claims

that the obligation is the loan made by Appellant’s predecessor-in-interest to

Wife, the res is the Property, and the terms of the mortgage establish the

intent that the Property is security for the payment of the loan. Id. at 17-18.

Appellant further contends that Husband was unjustly enriched because the

mortgage was used to pay off a prior mortgage on the Property and Husband

had the benefit of residing at the Property for seventeen years.9 Id. at 18

(citing, inter alia, N.T. Trial at 49). Appellant concludes that the trial court’s

holding that the entire Property is not security for the mortgage must be

reversed because it “provide[s] a windfall to the [Appellees] and result[s] in

____________________________________________

9 Appellant also argues that “the trial court gave ‘short shrift’” to Husband’s
admissions that Wife used the funds from the loan secured by the mortgage
to purchase the Property and Appellees continue to reside at the Property.
Appellant’s Brief at 18 n.3 (citing M & T Mortg. Corp. v. Townsend, 1247
EDA 2012, 2013 WL 11273051 (Pa. Super. filed Mar. 25, 2013) (unpublished
mem.). First, Townsend is an unpublished decision of this Court that was
filed prior to May 1, 2019; therefore, it cannot be cited or relied upon even as
persuasive authority. See Pa.R.A.P. 126(b). Second, Appellant argues that
the trial court erred in weighing Husband’s testimony. Insofar as Appellant is
arguing that the trial court failed to give appropriate weight to certain
evidence, Appellant is not entitled to relief on this claim. See Davis, 194 A.3d
at 605 (stating that “this Court is not permitted to reexamine the weight and
credibility determination or substitute our judgment for that of the fact finder”
(citation omitted)).

- 16 -
J-A06026-23

unjust enrichment to them both.” Id. at 18-19 (citing, inter alia, McConaghy

v. Bank of New York for Certificate Holders CWALT, Inc., Alternative

Loan Tr. 2006-45T1, Mortg. Pass-Through Certificates, Series 2006-

45T1, 192 A.3d 1171 (Pa. Super. 2018)).

This Court has explained:

An 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. Such a lien is
appropriate where the defendant’s interest in the property is
subject to an obligation owed to the plaintiff. . . . [A]n 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.

In Mermon . . . 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.” [Id.] 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.

US Bank Nat’l Ass’n for Wells Fargo Alternative Loan Tr., Series 2005-

1 v. Finkel, 164 A.3d 512, 515 (Pa. Super. 2017) (some citations omitted

and formatting altered).

“Unjust enrichment is essentially an equitable doctrine. It is well-

established that courts sitting in equity hold broad powers to grant relief that

will result in an equitable resolution of a dispute. In addition, a trial court

must formulate an equitable remedy that is consistent with the relief

- 17 -
J-A06026-23

requested.” Gutteridge 165 A.3d at 916 (citations omitted and formatting

altered).

Additionally, this Court has explained:

To sustain a claim of unjust enrichment, a claimant must show
that the party against whom recovery is sought either wrongfully
secured or passively received a benefit that it would be
unconscionable for [him] to retain. The application of the doctrine
depends on the particular factual circumstances of the case at
issue. In determining if the doctrine applies, our focus is not on
the intention of the parties, but rather the most critical element of
this equitable doctrine, which is whether the enrichment of the
defendant is unjust. The doctrine does not apply simply because
the defendant may have benefited as a result of the actions of the
plaintiff.

Id. at 917 (citations omitted and formatting altered).

In McConaghy, a husband and wife both executed a mortgage on

property that they purchased as tenants by the entireties. McConaghy, 192

A.3d at 1173. In 2004, the couple subsequently took out and signed a new

mortgage (2004 mortgage) and paid off the first mortgage. Id. The husband

then obtained several additional mortgages on the property without the wife’s

involvement. Id. However, the husband used the funds from these

subsequent mortgages to pay off the 2004 mortgage. Id. After the husband’s

death, the wife filed an action to quiet title claiming that her late husband “did

not have the permission or legal right to unilaterally encumber the property

with a mortgage.” Id. at 1174 (citation omitted and formatting altered). The

bank filed a counterclaim asserting unjust enrichment. Id. On appeal, this

Court concluded that the wife had been unjustly enriched and that the bank

- 18 -
J-A06026-23

was entitled to an equitable lien because even though the wife did not sign

the subsequent mortgages, the husband had used those funds to pay off the

2004 mortgage, which both the husband and the wife had signed. Id. at

1176-77; see also Infante v. Bank of Am., N.A., 130 A.3d 773, 774-76,

780 (Pa. Super. 2015) (affirming the trial court’s holding that the wife had

been unjustly enriched by the husband taking out a new mortgage in his name

only to pay off a prior mortgage that both spouses had signed and that the

bank was entitled to an equitable lien equal to the payoff amount of the prior

mortgage).

Here, the trial court concluded:

This issue can be addressed on many of the same grounds as
[Appellant’s entireties presumption claim]. Given this court’s
finding that the entireties presumption was rebutted, there is no
basis for reformation of the mortgage and also no basis for
imposing an equitable lien on the subject property under the
circumstances of this case.

In the illustrative case of Herb v. Citimortgage, Inc., 955 F.
Supp. 2d 441 (M.D. Pa. 2013), the District Court denied cross
motions for summary judgment on plaintiff-wife’s quiet title
action. The District Court found that the wife had no knowledge
of or intent to enter into the mortgage, so there was no basis for
an equitable mortgage. Id. at 450. Similarly, in this case, [Wife]
took it upon herself to seek out and purchase a new home without
[Husband’s] authorization.

Further, [Husband] did not receive a financial windfall when the
mortgage came into existence sufficient to sustain the imposition
of an equitable lien. See Infante . . . (Where an equitable lien
was granted on property held by the entireties but only mortgaged
in husband’s name, lien imposed was only for an amount equal to
the payoff of a prior mortgage in the name of husband and wife
together in 2004). When [Wife] executed the mortgage,
[Husband] did not receive a payoff of any existing indebtedness

- 19 -
J-A06026-23

as a result of the loan secured by [Wife]. Accordingly, there is no
basis for imposing an equitable lien.

Trial Ct. Op. at 11-12.

Based on our review of the record, we discern no error in the trial court’s

conclusions. See Davis, 194 A.3d at 605. The record supports the trial

court’s finding that Husband did not authorize Wife to obtain a mortgage on

his behalf. See Trial Ct Op. at 9-12. Therefore, Appellant has failed to

establish by “clear, precise and indubitable evidence” that Husband intended

for his interest in the Property serve as security for the payment of the

mortgage. See Finkel, 164 A.3d at 515.

Further, the facts of this case are unlike the facts of McConaghy or

Infante. In both of those cases, this Court concluded that the non-signing

spouses were unjustly enriched because the signing spouses used funds from

a new mortgage to pay off prior mortgage debt shared by both spouses. See

McConaghy, 192 A.3d at 1173-77; Infante, 130 A.3d at 774-76, 780.

Instantly, Wife obtained a mortgage without Husband’s signature, and it is

undisputed that she used those funds to purchase the Property. See, e.g.,

N.T. Trial at 46, 72, 78-79, 103; R.R. at 43a-46a (deed from Jeffrey J. Collins

and Carla Collins conveying the Property to Appellees).

Finally, contrary to Appellant’s assertions, there was no evidence on this

record that Husband obtained a benefit from the satisfaction of a prior

mortgage on the Property. At trial, Ms. Johnson testified regarding Plaintiff’s

Exhibit 3, the HUD-1 settlement statement (HUD) as follows:

- 20 -
J-A06026-23

Q. Does the HUD show the total amount of the mortgage
borrowed by [Wife]?

A. Yes.

Q. What is the total amount?

A. $135,000.

Q. I’m going to draw your attention to line 202, what is that
referencing?

A. The personal property. You said 202?

Q. Yes.

A. Sorry. The principal amount of the new home.

Q. So that’s the total amount of this mortgage or the money that
was borrowed for this mortgage, correct?

A. The total amount for the new loan was $108,000, yes.

Q. So now I want you to look at line 504. Could you please read
what that says?

A. Payoff of the first mortgage from Countrywide Home Loan
Service, LP[10] was $70,690.75.

Q. What does it mean when HUD says payoff of first mortgage
loan?

A. There was a prior mortgage to the loan that needed to be paid
off so they could have so they could obtain a title to the property.

Q. So does that mean that of the $108,000 that was borrowed,
$70,000 of it was used to pay off a loan that was attached to this
property?

A. Yes.

See N.T. Trial at 48-50. Clearly, Ms. Johnson did not identify the borrower(s)

under the Countrywide mortgage during her testimony. See id. at 44-71.

____________________________________________

10 Hereafter “Countrywide mortgage.”

- 21 -
J-A06026-23

Further, Plaintiff’s Exhibit 3, was not admitted into evidence. See R.R. at 42a

(list of Appellant’s exhibits admitted into evidence at trial). Appellant did not

present any other evidence identifying the borrowers under the Countrywide

mortgage. Because Appellant did not prove by a preponderance of the

evidence that Husband was a borrower under the Countrywide mortgage,11

Appellant failed to establish that Wife used the funds obtained under the

mortgage at issue to satisfy any of Husband’s prior debts or obligations.

Therefore, Appellant’s claim before this Court on appeal fails because it seeks

to argue facts not in evidence before the trial court below. Further,

McConaghy and Infante are distinguishable and not applicable to the facts

of this case.

For these reasons, we agree with the trial court that Husband was not

unjustly enriched by the mortgage or Wife’s purchase of the Property. See

Gutteridge, 165 A.3d at 916. Accordingly, Appellant is not entitled to an

equitable lien against the Property. See Finkel, 164 A.3d at 515. For these

reasons, we affirm.

Judgment affirmed. Jurisdiction relinquished.

____________________________________________

11 Further, when reviewing a non-jury verdict, this Court views the evidence
in the light most favorable to Appellees, the verdict winners and rejects all
inferences from the evidence that are unfavorable to the verdict winners. See
Gutteridge, 165 A.3d at 914. Accordingly, based on the evidence presented
at trial, we must reject any inference that Husband was a borrower under the
Countrywide mortgage. See id.

- 22 -
J-A06026-23

Judge Pellegrini joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/16/2023

- 23 -