In the Matter of: WILLIAM A. MCINTYRE v. BNC MORTGAGE, LLC, FKA BNC Mortgage, Inc.

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: WILLIAM A.
MCINTYRE,
Debtor,
WILLIAM A. MCINTYRE; et al.,
Appellants,
v.
BNC MORTGAGE, LLC, FKA BNC
Mortgage, Inc.,
Appellee,
AMERICAN HOME MORTGAGE
SERVICING, INC., successor in interest
to BNC Mortgage, LLC, FKA BNC
Mortgage, LLC,
Movant - Appellee,
and
ALFRED H. SIEGEL, Chapter 7 Trustee,
No. 10-56185
D.C. No. 2:09-cv-02327-ABC
MEMORANDUM*
FILED
MAR 05 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable Robert W. Pratt, Chief District Judge for the U.S.**
District Court for Southern Iowa, sitting by designation.
2
Trustee.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Argued and Submitted February 14, 2012
Pasadena, California
Before: PREGERSON and BEA, Circuit Judges, and PRATT, Chief District
Judge.**
Appellants William McIntyre, Gail Johnson-McIntyre, and Tshombe
Sampson appeal the district court’s decision affirming the bankruptcy court’s grant
of an equitable lien against McIntyre and Johnson-McIntyre’s real property and the
bankruptcy court’s grant of priority to that equitable lien over Sampson’s
unrecorded lien for attorneys’ fees. The bankruptcy court granted an equitable lien
in favor of assignee BNC Mortgages (predecessor in interest to appellee American
Home Mortgages, Inc., or “AHMSI”) and ordered the lien recorded, because BNC
had erroneously, but in good faith, repaid the note secured by deed of trust on
McIntyre and Johnson-McIntyre’s real property. Because the parties are familiar

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with the facts of the case, we repeat them here only as necessary to explain our
decision. We affirm.
First, AHMSI is entitled to an equitable lien. Under California law, a party
is entitled to an equitable lien “when a lender advances money which benefits the
land of another in mistaken reliance upon an imperfect mortgage or lien upon that
land.” Jones v. Sacramento Sav. & Loan Ass’n, 248 Cal. App. 2d 522, 530 (1967).
Here, BNC benefitted McIntyre and Johnson-McIntyre’s land by paying off the
previous note secured by deed of trust as part of an unconsummated sale
transaction; BNC made the payment because BNC thought it would have a
securitized interest in the land at the end of the sale. As McIntyre and Johnson-
McIntyre received a windfall when their note secured by deed of trust was paid off
and BNC took nothing, an equitable lien for BNC’s successor-in-interest is
appropriate under California law.
Second, the district court correctly held that AHMSI’s recorded equitable
lien has priority over Sampson’s unrecorded lien. First, the bank is a bona fide
purchaser for value, first recorded and with notice (through the recorded lis
pendens) only of Johnson-McIntyre’s interest in the property, not of Sampson’s
claim. As a secondary ground, AHMSI is entitled to priority by equitable
subrogation to the Note and Deed of Trust of lender Ameriquest, which was paid

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off by BNC’s $205,000 payment. In cases such as this one, California permits a
later lienholder to stand in the shoes of the previous lienholder and retain the same
priority as the previous lienholder. See Han v. United States, 944 F.2d 526, 529
(9th Cir. 1991).
None of Appellants’ other miscellaneous arguments are applicable here and
thus do not warrant reversal. In addition, as Appellants have brought no claim or
counter-claim against AHMSI or its predecessor in interest, Appellants are not here
entitled to damages.
AFFIRMED.

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