United States Court of Appeals For the First Circuit

No. 19-1533

WILMINGTON SAVINGS FUND SOCIETY, FSB, d/b/a Christiana Trust, not individually but as Trustee for BCAT 2015-14BTT,

Plaintiff, Appellee,

v.

NINA B. COLLART, individually and as Trustee of the Lucien R. Collart, Jr. Nominee Trust and as Trustee of the Anne B. Collart Nominee Trust; THOMAS D. MANN, JR. as Trustee of the Nina Collart Nominee Trust,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Lynch and Lipez, Circuit Judges.*

Thomas O. Moriarty, with whom David M. Rogers, Amy M. McCallen, and Moriarty Troyer & Malloy LLC were on brief, for appellants. Marissa I. Delinks, with whom Hinshaw & Culbertson LLP was on brief, for appellee.

* Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's decision. The remaining two panelists therefore issued the opinion pursuant to

(d). November 13, 2020 LYNCH, Circuit Judge. Wilmington Savings Fund Society,

FSB brought suit in 2017 against Nina Collart and Thomas Mann, Jr.

concerning a home equity line of credit ("HELOC") that had been

granted in 2007 to Nina's father, Lucien, on property in

Harwichport, Massachusetts. Wilmington sued Nina in her

individual capacity and as the trustee of both the Lucien R.

Collart, Jr. Nominee Trust (the "Lucien Trust") and the Anne B.

Collart Nominee Trust (the "Anne Trust"). Mann is named in his

capacity as the trustee of the Nina B. Collart Trust (the "Nina

Trust").

Wilmington sought a declaratory judgment that the HELOC

was valid. It also sought an equitable lien on the property,

sought a constructive trust, and claimed that Nina fraudulently

transferred the property to herself. Both Wilmington and the

defendants filed motions for summary judgment.

The district court issued a declaratory judgment

declaring the HELOC invalid. It granted Wilmington an equitable

lien in the property and dismissed Wilmington's other two claims.

The defendants appealed from the grant of an equitable lien.

We hold that the district court abused its discretion in

granting Wilmington an equitable lien. We reverse and direct entry

of judgment for the defendants.

- 3 - I. Facts

In 1999, Anne Collart, together with her husband Lucien

and their daughter Nina, acquired a property in Harwichport,

Massachusetts (the "Harwichport Property"). Two months later, the

Collarts established three almost-identical trusts: the Anne

Trust, the Lucien Trust, and the Nina Trust. Each Collart was the

sole beneficiary of the trust bearing his or her name. Together

they deeded a one-third interest in the Harwichport Property into

each trust so that the trusts owned the Harwichport Property as

tenants in common. The declarations of trust, and the deed

conveying the Harwichport Property to the trusts, were recorded in

1999.

Anne was the trustee for the Lucien and Nina trusts.

Lucien was the trustee for the Anne Trust. Anne died in 2002.

Lucien and Nina, as sole beneficiaries of their respective trusts,

could appoint successor trustees to replace Anne. Nina appointed

a successor trustee for her trust. Lucien did not.

Anne had named Lucien the executor of her will. She

gave Lucien all of her personal property and divided the remainder

of her assets between two trusts: the Tax Shelter Trust Fund and

the Marital Trust Fund (collectively, the "Estate Trusts"). She

appointed Lucien trustee of both trusts.

Both Lucien and Nina were beneficiaries of the Estate

Trusts. Lucien was entitled to the net income from the Estate

- 4 - Trusts during his lifetime. Anne reserved the principal for Nina.

It would pass to her upon Lucien's death. As trustee of the Estate

Trusts, Lucien ignored the trusts' terms and never transferred any

property into them. Instead, he liquidated Anne's assets and kept

the money for himself.

Four years after Anne's death, Lucien met and had a

relationship with Brenda Tri. Lucien began dividing his time

between the Harwichport Property, where he lived, and Tri's nearby

horse farm. He took Tri on cruises at his expense, purchased

horses for her farm, and paid off her credit card bills.

A few months after meeting Tri, in April 2007, Lucien

purchased a property in South Dennis, Massachusetts (the "Bass

River Property") for $2.3 million. To purchase the Bass River

Property, Lucien used a combination of his own assets, assets from

Anne's estate, and a $500,000 home equity line of credit from Bank

of America taken out against the Harwichport Property owned by the

trusts in the names of Anne, Lucien, and Nina but not owned by

Lucien individually. The HELOC was dated June 13, 2007 and named

"LUCIEN R. COLLART JR., AN UNMARRIED PERSON" as the grantor. It

did not mention any of the trusts that held title to the

Harwichport Property. The HELOC was recorded in August 2007.

After Nina learned of the HELOC, her counsel sent a

letter to Bank of America in September 2007 disputing its validity.

The letter said that the trusts, not Lucien individually, held

- 5 - title to the Harwichport Property and that neither Nina nor the

trustee of the Nina Trust consented to the HELOC.

In October 2007, Nina became concerned about her

father's capacity and his relationship with Tri. She petitioned

the probate court to appoint a guardian for Lucien. Her initial

petition was denied, but almost a year later the court appointed

John Conathan as Lucien's temporary guardian on July 30, 2008.

The guardianship became permanent on September 25, 2008.

In his role as guardian, Conathan negotiated the sale of

the Bass River Property for $1.75 million in April 2009.1 Conathan

petitioned the probate court for a license to sell the property,

and the court appointed a guardian ad litem who determined that

the sale was in Lucien's best interest. The guardian ad litem's

report said that the proceeds from the sale should be used to repay

Anne's estate, pay off the HELOC, and provide for Lucien's living

expenses. The probate court approved the sale. Conathan used the

sale proceeds to replenish Anne's estate and provide for Lucien's

living expenses. He stopped making payments on the HELOC in July

1 Lucien's purchase of the Bass River Property resulted in litigation. The sellers of the Bass River Property had accepted an offer to sell the property for $2 million. They backed out of this agreement and sold the property to Lucien when he offered them $2.3 million. To settle the various lawsuits stemming from this transaction, Conathan agreed to sell the property to the original offerors for $1.75 million and received $250,000 for Lucien from the sellers.

- 6 - 2010 after he was informed by his counsel that the HELOC was

invalid.

Lucien died in August 2013. Nina became the trustee of

the Anne and Lucien trusts. Almost two years after Lucien's death,

the probate court entered an Order of Final Settlement granting

all of Lucien's estate -- about $1 million -- to Nina in June 2015.

Bank of America assigned the HELOC to Wilmington through

transactions in October 2015 and January 2016. In November 2016,

Nina requested that Wilmington discharge the HELOC because Lucien

did not hold legal title to the property when it was created.

Wilmington was thus on notice of Nina's objections and assertions

that the HELOC was not valid. In June 2017, Nina, acting as the

trustee of the Lucien and Anne Trusts and together with the trustee

of the Nina Trust, conveyed the Harwichport Property to herself.

II. Procedural History

Wilmington brought suit against the defendants in

November 2017. It sought (1) a declaration that the HELOC was a

valid encumbrance on the Harwichport Property, (2) an equitable

lien against the Harwichport Property, (3) a constructive trust on

the assets of Lucien's estate, and (4) an attachment of the

Harwichport Property due to Nina's fraudulent conveyance of the

- 7 - Harwichport Property to herself. Both parties moved for summary

judgment.

On March 29, 2019, the district court held that the HELOC

was invalid because Lucien obtained it in his individual capacity.

The Harwichport Property was owned by the Anne, Lucien, and Nina

Trusts. Lucien, individually, did not have title to the property.

He did not validly execute the HELOC because he did not act through

the Lucien or Anne Trusts.

Next, the district court held that Wilmington was

entitled to an equitable lien against the Harwichport Property.

It found that after the sale of the Bass River Property, the

proceeds from the $500,000 HELOC were returned to Lucien. Nina

inherited these proceeds when Lucien died. The court held that

"[t]o allow Nina to retain these funds would result in an unjust

enrichment."

On Wilmington's last two claims, the district court held

that a constructive trust "would be inappropriate because the

defendants did not obtain the assets of Lucien's estate or the

[Harwichport] Property through fraud or mistake" and that

"Wilmington ha[d] no basis to allege fraudulent transfer" because

the HELOC "was not a valid encumbrance."

- 8 - The defendants appeal from the district court's grant of

an equitable lien on the Harwichport Property.2

III. Legal Analysis

We review a district court's decision to grant or

withhold equitable relief for abuse of discretion, even when, as

here, the equitable relief is granted through a motion for summary

judgment. See, e.g., Ortega Candelaria v. Orthobiologics LLC,

(1st Cir. 2011). This standard is deferential but

"not unbridled." Corp. Techs., Inc. v. Harnett,

(1st Cir. 2013). The standard is "not a monolith: within it,

abstract legal rulings are scrutinized de novo, factual findings

are assayed for clear error, and the degree of deference afforded

to issues of law application waxes or wanes depending on the

particular circumstances." T-Mobile Ne. LLC v. Town of Barnstable,

(1st Cir. 2020). When the district court's

decision involved "the application of restitution 'rules,' such as

those articulated in [a Restatement] rather than purely equitable

judgments as to the fair or just result[,]. . . a less deferential

standard of review is arguably appropriate." Invest Almaz v.

Temple-Inland Forest Prod. Corp.,

, 66 n.13 (1st Cir.

2001).

2 Wilmington originally cross-appealed to challenge the district court's holding that the HELOC was invalid. It then voluntarily dismissed its cross-appeal. The grant of the equitable lien is the only issue on appeal.

- 9 - In this diversity case, whether an equitable lien is a

proper remedy is governed by Massachusetts law. Here, the parties

dispute whether Massachusetts law allowed the district court to

grant an equitable lien when no owner of the Harwichport Property

agreed to encumber the property and the proceeds of the transaction

did not benefit the property or its true owners. The defendants

argue the district court erred by granting the equitable lien on

these facts.

When, as here, there is no on-point precedent from the

state's highest court, "a federal court sitting in diversity should

. . . endeavor to predict how that court would likely decide the

question." Butler v. Balolia,

(1st Cir. 2013).

In doing so, we rely on the Restatement (Third) of Restitution and

Unjust Enrichment,3 analogous decisions from the Massachusetts

Supreme Judicial Court, Massachusetts's other courts, and

precedents in other jurisdictions. See Andrew Robinson Int'l,

Inc. v. Hartford Fire Ins. Co.,

, 51–52 (1st Cir. 2008).

3 We "pay particular attention to those sources that the state's highest court has endorsed in the past." Andrew Robinson Int'l, Inc. v. Hartford Fire Ins. Co.,

(1st Cir. 2008). The Massachusetts Supreme Judicial Court has often cited the Restatement (Third) of Restitution and Unjust Enrichment. See Suffolk Constr. Co. v. Benchmark Mech. Sys., Inc.,

(Mass. 2016); Metro. Life Ins. Co. v. Cotter,

(Mass. 2013); Bos. Med. Ctr. Corp. v. Sec'y of Exec. Office of Health & Human Servs.,

, 1132 (Mass. 2012).

- 10 - An equitable lien is "a charge upon specific property,

entitling the holder of the lien to have the property applied in

equity to the payment of his debt as against all other claimants

of the property except purchasers for value without notice."

United States v. Friedman,

(1st Cir. 1998) (quoting

Ballentine v. Eaton,

(Mass. 1937)). According

to § 56(1) of the Restatement (Third) of Restitution and Unjust

Enrichment, on which the parties and the district court relied:

If a defendant is unjustly enriched by a transaction in which

(a) the claimant's assets or services are applied to enhance or preserve the value of particular property to which the defendant has legal title, or more generally

(b) the connection between unjust enrichment and the defendant's ownership of particular property makes it equitable that the claimant have recourse to that property for the satisfaction of the defendant's liability in restitution,

the claimant may be granted an equitable lien on the property in question.

Restatement (Third) of Restitution and Unjust Enrichment § 56(1)

(Am. Law Inst. 2011).

The Restatement makes clear that a transactional nexus

must exist between the property and the events giving rise to the

equitable lien. This nexus requirement is usually, but not

necessarily, satisfied as described in § 56(1)(a). See id. at

- 11 - § 56 cmt. d ("The transactional nexus between the recipient's

unjust enrichment and the property made subject to lien is most

often supplied . . . when [a] claimant's assets have been used to

enhance or maintain the value of the property in question.").

Here, the HELOC proceeds were used to purchase the Bass River

Property. Wilmington does not argue that they were used to enhance

or maintain the Harwichport Property.

Instead, Wilmington argues that a transactional nexus

can exist even when no owner agreed to encumber the Harwichport

Property and the HELOC proceeds did not benefit the property or

its true owners. It first says that Friedman,

, and

Delval v. Gagnon,

(Mass. 1912), support the

proposition that an equitable lien can arise solely from the

express agreement of a debtor to pay a creditor out of a specific

fund. It argues that Lucien expressly agreed to repay the HELOC

from the Harwichport Property and that this agreement can supply

the requisite transactional nexus.

Wilmington's citations to Friedman and Delval are

inapposite. Both cases did involve express agreements to pay

creditors out of specific funds. See Friedman,

; Delval,

. But in both cases, it was undisputed

that the debtors owned and controlled the assets from which they

- 12 - agreed to pay the creditors.4 Here, to the contrary, the district

court found that Lucien did not have the authority to pledge the

Harwichport Property. As Wilmington has dismissed its cross-

appeal, it does not contest this finding by the district court.

His express agreement to pay off the HELOC from the Harwichport

Property cannot support the equitable lien.

Wilmington next argues that Lucien's possession of the

Harwichport Property and his intent to encumber it are sufficient

to provide a transactional nexus. It says that Pinch v. Anthony,

(1864), controls this case. Pinch says that "a party

4 In Friedman, the property at issue was held in trust with the defendant's wife as the sole beneficiary.

. The creditor was a supplier to the business jointly owned by the defendant and his wife.

. The defendant's wife personally guaranteed the business's debt and specifically pledged the property as collateral.

The business defaulted.

The defendant's wife asked the creditor not to attach the property because she believed it would "have a chilling effect on [its] impending sale."

Instead, she gave the creditor a written guarantee that it would be paid "from the proceeds of the sale of the property."

Before the creditor was paid, U.S. Marshals seized the proceeds of the sale and prevented the creditor from being paid.

. It was undisputed that the defendant's wife validly pledged the sale proceeds as collateral. We affirmed the district court's order granting an equitable lien on the proceeds to the creditor.

. In Delval, the Massachusetts Supreme Judicial Court held that the defendant's lawyer had an equitable lien on the proceeds of a judgment in the defendant's favor.

. The defendant had pledged the proceeds to her lawyer and had given him "a charge or incumbrance upon this specific fund as security for the sum due him."

It was undisputed that she could validly pledge the judgment proceeds.

- 13 - may by express agreement create a charge or claim in the nature of

a lien on real as well as personal estate of which he is the owner

or possessor, and that equity will establish and enforce such

charge or claim." Id. at 539 (emphasis added). Wilmington argues

that because Lucien possessed the Harwichport Property when he

executed the HELOC and intended to encumber it, the "or possessor"

language from Pinch is dispositive. It says that it is irrelevant

that Lucien did not own the property. Wilmington reads Pinch too

broadly.

The "or possessor" language in Pinch is nonbinding

dicta. The plaintiff in Pinch sought an equitable lien on land

the defendant owned and did not merely possess. Id. at 536; see

Town of Dartmouth v. Greater New Bedford Reg'l Vocational Tech.

High Sch. Dist.,

(Mass. 2012) (finding language

"unnecessary to the holding of the case" to be "merely dicta" and

nonbinding). The "or possessor" language was unnecessary to

Pinch's holding and does not control this case.

Cases decided around the same time as Pinch also

undermine Wilmington's broad reading of it. These cases say that

when a mortgagor purports to mortgage a property he does not own,

as was the case here, equity cannot grant relief to the mortgagee.5

5 There is a line of cases in Massachusetts holding that a lender can secure an equitable lien on a property even when the mortgagor could not convey title to the property (e.g., due to lack of ownership or fraud). In these cases, the mortgage proceeds

- 14 - For example, in Pennock v. Coe, the United States Supreme Court

quoted the maxim "a person cannot grant a thing which he has not"

because "[t]he thing itself is an impossibility" before concluding

that "whenever a party undertakes, by deed or mortgage, to grant

property, real or personal, in praesenti, which does not belong to

him or has no existence, the deed or mortgage, as the case may be,

is inoperative and void, and this either in a court of law or

equity."

, 127–28 (1859) (emphasis added). Similarly,

in Moody v. Wright, the Massachusetts Supreme Judicial Court denied

an equitable lien to a mortgagee when the mortgagor could not

pledge the property. It held that, because the mortgaged property

was "not capable of being conveyed in mortgage[] at the time when

the mortgage was made[,] [t]he instrument could not operate to

pass the property as a pledge."

(1847).

were used to benefit the property or its true owner. See Bank Of N.Y. v. Morgan,

(Mass. App. Ct. 2012) (unpublished table decision) (holding that, when a mortgage is unenforceable due to fraud, the "[lender] maintains an equitable lien on the property only to the extent that the loan proceeds paid off [defendant's] first mortgage"); Keville v. McKeever,

, 432 & n.26 (Mass. App. Ct. 1997) (adjusting the amount of an equitable lien to reflect the amount of loan proceeds used to benefit the property or its true owner). The courts in Bank of New York and Keville restricted the amount of the equitable lien to the extent the lien proceeds benefited the property or the property's true owner. The requisite transactional nexus for an equitable lien was supplied by this improvement or benefit. It was not supplied by the mortgagor's intent to secure the fraudulent or invalid mortgage with property the mortgagor did not own.

- 15 - Finally, courts in other jurisdictions have held in more

recent cases that an equitable lien is an improper remedy when the

mortgagor could not convey title to the property and the mortgage

proceeds were not used to improve the property or benefit the true

owner. See Wachovia Bank, N.A. v. Coffey,

(S.C. 2013) (upholding dismissal of bank's claim for an equitable

lien when a husband took out a HELOC on a property "titled in [his]

[w]ife's name only," the bank never verified if the husband owned

the property, and the husband used the proceeds to buy a sailboat);

DFA Dairy Fin. Servs., L.P. v. Lawson Special Tr.,

(S.D. 2010) (affirming a trial court's denial of an equitable

lien when the proceeds of a mortgage were not used to preserve or

improve the property and the mortgagor did not have authority to

convey the property); Sorenson v. Pyeatt,

(Wash. 2006) (en banc) (holding that lenders had "failed to

establish . . . that they are entitled to an equitable lien" when

the mortgagor "forged the deeds that purported to convey title,"

"had no power to grant a valid security interest in the property,"

and "used the fraudulently obtained loan money primarily as

disposable income"). Wilmington has cited no case from any

jurisdiction where a transactional nexus existed to support an

equitable lien when the mortgagor did not have authority to

mortgage the property and did not use the mortgage proceeds to

benefit the property or its owner.

- 16 - Because the proceeds from the HELOC were used to purchase

the Bass River Property and did not benefit the Harwichport

Property's true owners, no transactional nexus exists to support

the equitable lien. The lien was thus based on an error of law.

The district court found that Nina benefited from the HELOC

proceeds because she inherited them through Lucien's estate. But

this benefit has nothing to do with her interest in the Harwichport

Property. Indeed, as Wilmington acknowledges in its brief to us,

"Nina's ownership interest [in the Harwichport Property] [had] no

bearing on [the district court's] analysis." The lenders here,

Wilmington and its predecessor Bank of America, could and arguably

should have taken steps to assure the validity of any HELOC they

wished to grant. They did not do so. And they did not even do so

in the face of Nina's prompt challenges to the validity of the

HELOC. Under such circumstances and given the error of law, the

grant of the lien to Wilmington was an abuse of discretion and the

defendants should have had judgment entered in their favor.

IV.

We reverse and remand with instructions to enter judgment

for the defendants.

- 17 -