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Kim v. First Intercontinental Bank

Equitable subrogation provides that, where it was the parties' intent to substitute a new creditor's rights for the rights of a creditor that is being paid off, the new creditor steps into the shoes of the old creditor in terms of lien priority.

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This case involves the priority of competing interests in a parcel of property. First Intercontinental Bank brought this action for equitable subrogation and reformation of its security deed, which contained an incorrect legal description of the encumbered property. Chan K. Kim appeals the grant of summary judgment to First Intercontinental. Kim argues that First Intercontinental is not entitled to equitable subrogation because it was guilty of culpable neglect, and to allow equitable subrogation would prejudice Kim’s interest. Alternatively, Kim argues that the trial court should limit the amount to which First Intercontinental is equitably subrogated. Finally, he argues that First Intercontinental is not entitled to reformation because Kim was not a party to the security deed containing the mistake. We conclude that because Kim will not be prejudiced—his position of priority is unchanged—First Intercontinental was entitled to a reformation of its deed and equitable subrogation but only to the extent it paid off a prior encumbrance. We therefore vacate and remand.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.” Secured Equity Financial v. Washington Mut. Bank, 293 Ga. App. 50 666 SE2d 554 2008 citation omitted.

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