Supreme Court Continues 'First in Time, First in Right' Rule
In a 4-1 decision, the Delaware Supreme Court affirmed the continued vitality of the state's longstanding "first in time, first in right" rule when determining the priority of creditors to be paid after a mortgage foreclosure sale.
October 06, 2015 at 02:04 PM
4 minute read
The original version of this story was published on Delaware Law Weekly
In a 4-1 decision, the Delaware Supreme Court affirmed the continued vitality of the state's longstanding “first in time, first in right” rule when determining the priority of creditors to be paid after a mortgage foreclosure sale.
In Eastern Savings Bank v. Cach, the majority held Delaware's pure race recording statute trumped the doctrine of equitable subrogation, which it said was irrelevant to the facts of the case and had never been applied by a state court to allow a mortgage lender of a homeowner's refinancing to assume the position of the original lender.
“Equitable subrogation has never been used to undercut the authority of a Delaware statute without equitable cause,” Justice James T. Vaughn Jr. wrote for the majority. “When, as here, there is no equitable reason to set aside the provisions of Delaware's pure race recording statute, the rule of 'first in time, first in right' governs the priority of the parties' competing claims.”
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