concurring
I concur because under the law, as it presently exists in both statutory and common law form, there is no cognizable basis for recovery by T&C against NCB. Yet it seems incongruous that under the facts of this case NCB should not be responsible for its conduct which led to clearly foreseeable harm to a known and totally innocent party, T&C.
The majority notes, and I would strongly emphasize, that NCB had a duty as mortgagee to protect the interests of Fellows, the mortgagor, and further, that NCB breached that duty. However, as the majority further observes, the breach of duty caused no harm to Fellows because T&C, by not timely filing, had lost its right to a mechanic’s lien and because T&C dismissed its complaint against Fellows based upon personal liability for unjust enrichment.5 T&C did not premise its suit against NCB upon any theory other than foreclosure of a mechanic’s lien which was not timely filed.6
*1013Nevertheless, I find the conduct of NCB reprehensible and indefensible. When advised of T&C’s letter to Fellows concerning T&C’s unpaid claims, NCB advised that the matter would be “address[ed] at closing”. Record at 155. At closing, with knowledge that Woods had not yet paid T&C, NCB, based solely upon Woods’ promise to pay T&C, not only encouraged or induced Woods to execute the false affidavit representing that there were no claims outstanding for which hens could be filed,7 but also went ahead and disbursed all of the remaining funds to Woods.
Such conduct represents a total disregard for the interests of persons known to have an interest in the proceeds of the real estate closing and in addition flies in the face of well established custom and practice within the lending industry. This custom and practice would have dictated issuance of a check made payable both to Woods and to T&C, or retainage or escrow of the amount necessary to satisfy the claim, or obtaining a release from T&C prior to disbursement of the funds. NCB did none of these things. Rather, by disbursement of the funds to Woods, it placed the thief in the position to abscond and renege upon his promise to pay T&C from those funds. In our law, we have a well established equitable principle that where a detriment or harm must be sustained by one of two innocent parties, the party placing the thief or other culpable wrongdoer in the position to cause the harm, should suffer the burden of rectifying the wrong. In re Marriage of Glendenning, 684 N.E.2d 1175 (Ind.Ct.App.1997), trans. denied ; Brownsburg Lumber Co. v. Mann, 537 N.E.2d 1386 (Ind.Ct.App.1989). There is even stronger reason to place that burden upon a negligent or culpable party, such as NCB, as opposed to making a totally innocent party, T&C, suffer the loss.
Perhaps relief from situations such as here presented may be found within our concept of tort liability. As earlier noted, NCB knew that T&C had a valid claim against Woods and that the claim had not been paid. Under the circumstances existent at the time of the closing, it could be said that NCB owed a duty of reasonable care with regard to disbursement of funds in light of that known claim. NCB’s breach of its duty to Fellows may be said to give rise to tort liability for the negligent disbursement of funds with regard to persons who would be foreseeably injured by such negligence.
Be that as it may, it would seem appropriate to revisit the issue, whether in tort or contract to avert the inequities apparent in the present state of the law. In an analogous case, McAdams v. Dorothy Edwards Realtors, Inc., 604 N.E.2d 607 (Ind.1992), our Supreme Court held that a real estate agent, responsible for disbursing trust account funds following a real estate closing, was not liable to the purchaser for negligent disbursement resulting in failure to extinguish a lien because the real estate broker was the agent of the seller and therefore owed no duty to the purchaser.
In a scholarly analysis of the case, however, a commentator observed that the real estate agent was doing much more than acting as the seller’s agent in that he was “the moving force in the real estate closing”. Walter Krieger, 199S Developments in Indiana Property Law, 27 Ind. L. Rev. 1285 at 1302-03 (1994). Such is the case here and as noted it may no *1014longer be prudent for one of the parties to the transaction to allow an agent of the other party to preside over a closing and disburse the proceeds.
The court in McAdams planted the seeds for reviewing and revising the law as to the matter of liability in real estate closing situations. The court stated in the final paragraph of its decision:
“There is no question but that the [purchasers] were wronged. The real wrong was perpetrated by the [sellers], however, not by their agents.... [Purchasers] trusted [sellers] to keep their end of the bargain, but they signed a contract which left them exposed if the [sellers] absconded. If [the real estate agent handling the closing] had advised [purchasers] during the closing to step back and consult with counsel before signing such a contract, the resulting harm might have been avoided. [However, the law does not hold him financially accountable for failing to do so.” McAdams, supra, 604 N.E.2d at 612.
Thus, while I concur in the decision to affirm the judgment of the trial court, I do so in the hope that our Supreme Court will reopen the matter and resolve it in a manner not unfair to any party to such financial and fiduciary transactions.
. Personal liability on the part of an owner exists separate and apart from any mechanic's lien liability pursuant to I.C. 32-8-3-9. John Wendt & Sons v. Edward C. Levy Co. 685 N.E.2d 183 (Ind.Ct.App.1997) trans. denied. However, this liability may be limited to the extent of funds remaining on hand or under the control of the landowner/purchaser. McCotry v. G. Cowser Constr., Inc., 636 N.E.2d 1273 (Ind.Ct.App.1994) adopted on transfer, 644 N.E.2d 550. In the case before us, until conclusion of the closing and disbursement of the funds to Woods, moneys remained on hand for satisfaction of T&C’s claim. When Woods absconded with those funds without paying T&C, it could be argued that funds no longer remained under the control of Fellows and NCB and that therefore, Fellows and NCB would not have to pay T&C. However, language from McCorry suggests otherwise. In that case, money was still due the contractor under the terms of the original contract when the contractor breached the contract by failing to complete the project. The owner claimed that because of the breach, the unpaid amount was no longer "due.” However, apropos of the case before us the McCorry court said:
"If a contractor's breach meant that no amount remained ‘due’ for purposes of the personal responsibility statute, the 'consequences of the contractor's absconding or going broke or otherwise defaulting’ [citation omitted] would be that no subcontractor could ever recover under that section.” 636 N.E.2d at 1279.
However, because, as noted, T&C dismissed its personal liability claim against Fellows, we need not resolve this issue.
. In its brief, T&C argues that it was a third party beneficiary of an agreement between Fellows and NCB that the matter of T&C’s claim as per its informational letter to Fellows would be addressed at closing. A reasonable inference from such "agreement” would be that no adverse effect would be visited upon Fellows by reason of T&C's claim. The fact that the matter was not resolved at the closing does not give rise to third party beneficiary liability on the part of the bank because Fellows did not sustain any *1013adverse effect as evidenced by T&C’s dismissal of its complaint against Fellows. T&C does not argue that it was a third party beneficiary of a separate contract between Woods as promisor and NCB and Fellows as promisees to pay T&C from the funds disbursed to him at closing. If such were the case, T&C might fall within the definition of a third party beneficiary as contemplated by Prairie Heights Educ. v. Board of Sch. Trustees, 585 N.E.2d 289 (Ind.Ct.App.1992), or a creditor beneficiary as contemplated by Section 302(l)(b) of the Restatement (Second) of Contracts (1981). Be that as it may, the issue is not before us.
. As of the date of closing, T&C still had time within the sixty-day window of opportunity to file a lien.