NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

19-P-41 Appeals Court

STEWART TITLE GUARANTY COMPANY vs. SHANE M. KELLY.

No. 19-P-41.

Suffolk. November 14, 2019. - April 17, 2020.

Present: Kinder, Neyman, & Wendlandt, JJ.

Insurance, Title insurance, Subrogation. Subrogation. Real 

Property, Mortgage, Title insurance. Mortgage, Discharge. 

Contract, Insurance, Parties, Performance and breach, 

Unjust enrichment. Unjust Enrichment. Practice, Civil, 

Burden of proof, Summary judgment.

Civil action commenced in the Superior Court Department on 

July 28, 2016. 

The case was heard by Elizabeth M. Fahey, J., on motions 

for summary judgment, and a motion for reconsideration was 

considered by her.

Beth R. Levenson (Scott J. Clifford also present) for the 

plaintiff.

Shane M. Kelly, pro se, submitted a brief.

WENDLANDT, J. This action presents occasion to address the 

doctrine of subrogation in the context of a title insurance 

policy, as well as the requirement of Mass. R. Civ. P. 56, 365 
2

Mass. 824 (1974), that a party with the burden of proof on an 

issue at trial come forward with evidence supporting the 

essential elements of its claims. The plaintiff, Stewart Title 

Guaranty Company (Stewart Title), a title insurance company, 

brought the present action in Superior Court for breach of 

contract and unjust enrichment. It sought to recover monies it 

paid to discharge a first priority mortgage on real property in 

the Allston section of Boston (property) owned by the defendant,

Shane M. Kelly. Stewart Title claimed that, pursuant to a title 

insurance policy it held with JPMorgan Chase Bank, N.A.

(JPMorgan), the mortgagee on a second mortgage on the property, 

Stewart Title was subrogated to JPMorgan's right to pursue a 

claim against Kelly for breach of a provision of the second

mortgage. That provision essentially required Kelly to 

discharge the first priority mortgage upon request by JPMorgan. 

Kelly's defense principally relied on a theory that he had 

no contractual relationship with Stewart Title, specifically 

disputing Stewart Title's subrogation rights. It is undisputed 

that he was not aware, until the filing of the present action,

that Stewart Title had paid to discharge the first mortgage. On 

cross motions for summary judgment, a Superior Court judge 
3

granted summary judgment in favor of Kelly.1 The judge denied 

Stewart Title's subsequent motion for reconsideration. We

affirm.

Background. We summarize the evidence in the light most 

favorable to Stewart Title, the party against whom the judge 

allowed summary judgment. See Lambert v. Fleet Nat'l Bank, 449 

Mass. 119, 120 (2007).

In 2001, Kelly, who was in the business of renovating 

homes, acquired title to the property. In 2003, Kelly borrowed 

$322,500 from Chevy Chase Bank, F.S.B. (Chevy Chase) secured by

a mortgage (first mortgage) to Mortgage Electronic Registration 

Systems (MERS), as nominee for Chevy Chase, on the property. 

Attorney Roseann Conti conducted the closing. The first

mortgage was recorded with the Suffolk County registry of deeds, 

resulting in a first priority lien on the property. 

In 2007, Kelly granted another mortgage (second mortgage) 

on the property. As set forth supra, the second mortgage was to 

JPMorgan, securing a promissory note for the $382,500 loaned to 

Kelly by JPMorgan.2 JPMorgan retained Conti to conduct the 

 

1 Kelly moved for summary judgment on all claims; Stewart 

Title moved for summary judgment as to only its claim for breach 

of contract.

 

2 Kelly did not use the proceeds from the loan secured by 

the second mortgage to pay off the first mortgage; and no 

provision of the second mortgage expressly required him to do 
4

closing; however, despite knowledge of the first mortgage, Conti 

did not notify JPMorgan. The second mortgage also was recorded 

with the Suffolk County registry of deeds. 

In connection with the second mortgage transaction, 

JPMorgan acquired a title insurance policy from Stewart Title. 

Conti acted as Stewart Title's agent. Again, Conti failed to

provide notice of the first mortgage. Thereafter, Kelly 

continued to make payments on both the first and second 

mortgages. 

In May 2012, JPMorgan filed a complaint in Land Court to 

reform the second mortgage on the basis that, as a result of a 

mutual mistake, Kelly's signature was not affixed to the second 

mortgage. Kelly received notice of the action, but did not 

respond or otherwise appear. In February 2013, a Land Court 

judge ordered a default judgment in favor of JPMorgan, reforming 

the second mortgage.3 

Thereafter, JPMorgan learned of the first mortgage and, in 

December 2013, made a written demand to Kelly that he discharge 

 

so. As set forth at note 4, infra, however, Kelly was required 

"promptly" to discharge any priority liens.

3 The Land Court judgment also provided:

"[N]othing in this Judgment shall extend to . . . title and 

interest in the Property of any party holding a record 

interest in the Property who . . . has not been named as a 

party to this proceeding in this court . . . ." 
5

it. Specifically, JPMorgan invoked a provision of the second 

mortgage, allowing JPMorgan to identify a priority lien on the 

property and, upon notice to Kelly, to require him to discharge 

it within ten days.4 Kelly did not discharge the first mortgage. 

In addition, Kelly stopped making monthly payments to JPMorgan; 

however, he continued to make payments on the loan secured by 

the first mortgage. Eventually, faced with economic pressure, 

Kelly contacted the office of the Attorney General to assist him 

to restructure the first and second mortgages. 

Relevant to the present dispute, the second mortgage 

provided that, if Kelly failed to discharge the first mortgage, 

JPMorgan could itself elect to discharge the priority lien and 

add the amount paid to Kelly's debt secured by the second 

mortgage.5 The second mortgage also provided that, upon request 

 

4 Section 4 of the second mortgage provided: 

"[Kelly] shall promptly discharge any lien which has 

priority over this Security Instrument . . . . If 

[JPMorgan] determines that any part of the Property is 

subject to a lien which can attain priority over this 

Security Instrument, [JPMorgan] may give [Kelly] a notice 

identifying the lien. Within 10 days of the date on which 

that notice is given, [Kelly] shall satisfy the 

lien . . . ." 

Section 4 contained other cure provisions; however, Kelly did 

not invoke them.

5 Section 9 of the second mortgage provided:

"If (a) [Kelly] fails to perform the covenants and 

agreements contained in this Security Instrument . . . then 
6

by JPMorgan, any amount so paid by JPMorgan "shall be payable." 

The record contains no such request.

Meanwhile, in December 2015, apparently in response to a 

claim by JPMorgan on the title insurance policy, Stewart Title 

had $268,084.83 paid to Chevy Chase's successor in interest to 

discharge the first mortgage held by MERS.6 Stewart Title did 

not inform Kelly (or the Attorney General) that it had taken 

this action. In December 2016, following a negotiated 

restructuring by the Attorney General, Kelly entered into a new

mortgage agreement (third mortgage) with a principal balance of 

$562,159.847 owed to JPMorgan. 

 

[JPMorgan] may do and pay for whatever is reasonable or 

appropriate to protect [JPMorgan's] interest in the 

Property and rights under this Security Instrument . . . . 

[JPMorgan's] actions can include, but are not limited to: 

(a) paying any sums secured by a lien which has priority 

over this Security Instrument . . . . Any amounts 

disbursed by [JPMorgan] under this Section 9 shall become 

additional debt of [Kelly] secured by this Security 

Instrument. These amounts shall bear interest at the Note 

rate from the date of disbursement and shall be payable, 

with such interest, upon notice from [JPMorgan] to [Kelly] 

requesting payment."

6 The summary judgment record does not include evidence of

payment by Stewart Title to either JPMorgan or Chevy Chase's 

successor in interest. Instead, the record includes a check 

issued by JPMorgan and payable to Chevy Chase's successor in 

interest. The check was sent with a cover letter apparently 

from Stewart Title. Accordingly, the record is unclear, at 

best, as to whether Stewart Title paid to discharge the first 

mortgage.

7 The record is devoid of an explanation for the increase in 

the amount of principal from the second mortgage to the third 
7

Following discharge of the first mortgage, Stewart Title 

asserted an attorney malpractice claim against Conti, which

Stewart Title elected to settle for $131,683.27 –- an amount 

less than the full amount paid to discharge the first mortgage. 

As set forth supra, Conti had failed to disclose the existence 

of the first mortgage; as a result, Stewart Title through its 

agent, Conti, failed to disclose the first mortgage to JPMorgan, 

JPMorgan did not learn of the first mortgage timely, and Stewart 

Title did not exclude the first mortgage from the policy 

coverage.8

Stewart Title filed the present action against Kelly, 

seeking the difference between the payment made to discharge the 

first mortgage and the sum recovered from Conti. Stewart Title 

claimed that it was entitled to damages against Kelly because 

(1) Kelly breached the second mortgage when he failed to 

discharge the first mortgage, and as JPMorgan's title insurer, 

Stewart Title had the right as subrogee to enforce the second

 

mortgage. It is not clear, for example, whether the amount 

increased due to JPMorgan adding the amount paid to discharge 

the first mortgage to Kelly's overall indebtedness pursuant to 

section 9 of the second mortgage. See notes 5-6, supra.

8 "'[A] title insurance policy . . . is . . . an agreement 

to indemnify the policyholder . . . against loss through defects 

in title' . . . . Before issuing a policy, a title insurer 

searches real property records for title defects and, if any are 

discovered, excludes such known defects from the policy 

coverage." GMAC Mtge., LLC v. First Am. Title Ins. Co., 464 

Mass. 733, 739 (2013), quoting B. Burke, Law of Title Insurance 

§ 2.01[A], at 2–5 (3d ed. Supp. 2012). 
8

mortgage against Kelly; and (2) Stewart Title's payment to 

discharge the first mortgage unjustly enriched Kelly. Stewart 

Title and Kelly filed cross motions for summary judgment. The 

judge allowed Kelly's motion and denied Stewart Title's motion. 

Stewart Title filed a motion for reconsideration with an 

accompanying affidavit averring, for the first time, that the 

title insurance policy (on which Stewart Title exclusively had 

relied in its summary judgment papers in support of its position 

that it was JPMorgan's subrogee) was only a portion of a larger 

title insurance policy between Stewart Title and JPMorgan. 

Specifically, Stewart Title averred that the title insurance 

policy that it had offered during the summary judgment stage was 

missing a "jacket," which included an express subrogation

clause. The judge denied the motion. 

Discussion. Our review of the judge's decision on summary 

judgment is de novo. Pinti v. Emigrant Mtge. Co., 472 Mass. 

226, 231 (2015). On appeal, we ask "whether, viewing the 

evidence in the light most favorable to the nonmoving party, all 

material facts have been established and the moving party is 

entitled to a judgment as a matter of law." Augat, Inc. v. 

Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991), citing Mass.

R. Civ. P. 56 (c), 365 Mass. 824 (1974). "[A] party moving for 

summary judgment in a case in which the opposing party will have 

the burden of proof at trial is entitled to summary judgment if 
9

he demonstrates, by reference to material described in Mass. R.

Civ. P. 56 (c), unmet by countervailing materials, that the 

party opposing the motion has no reasonable expectation of 

proving an essential element of that party's case." 

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 

(1991). 

1. Breach of contract. Stewart Title's claim for breach 

of contract rested on its allegation that Kelly breached the 

second mortgage when, in December 2013, he failed to discharge 

the first mortgage. Because Stewart Title was not a party to 

the second mortgage, an essential element of its claim was proof 

of its status as JPMorgan's subrogee. 

"Subrogation is an equitable adjustment of rights that 

operates when a creditor or victim of loss is entitled to 

recover from two sources, one of which bears a primary legal 

responsibility. If the secondary source (the subrogee) pays the 

obligation, it succeeds to the rights of the party it has paid 

(the creditor or loss victim, called the subrogor) against the 

third, primarily responsible party." Frost v. Porter Leasing 

Corp., 386 Mass. 425, 426-427 (1982). The doctrine applies, 

with certain limits, to policies of insurance such that, upon 

payment to the insured, "the insurer is entitled to share the 

benefit of any rights of recovery the insured may have against 

[the primarily responsible party] for the same loss covered." 
10

Id. at 427. "An insurer's right of subrogation may be reserved 

in an [express] agreement between the insurer and the insured 

. . . or may arise by implication." Id. 

a. Express subrogation. Stewart Title's breach of 

contract claim was based on its position that it was JPMorgan's

subrogee through an express agreement in its title insurance 

policy with JPMorgan. Throughout the litigation, including in 

its complaint and in its summary judgment papers, Stewart Title 

exclusively relied on the title insurance document appended to 

its complaint in support of its subrogee status. The judge, 

examining this document, concluded that the policy did not have 

an express subrogation clause. On appeal, Stewart Title does 

not argue otherwise; indeed, our own review of the document 

confirms the judge's conclusion. 

Instead, Stewart Title contends that the judge's reliance 

on its failure to come forward with an express subrogation 

clause was error because it was not aware that its status as 

subrogee was disputed. The record, however, reveals that 

Stewart Title's position is untenable. Throughout the 

litigation, Kelly's position was that he owed no contractual 

obligation to Stewart Title because it was not subrogated to 

JPMorgan's rights under the second mortgage as modified by the 

Land Court judgment.
11

In his answer, Kelly expressly denied Stewart Title's 

allegation that it was a subrogee to JPMorgan.9 The answer also

sets forth Kelly's position that Stewart Title "has no standing 

to sue [Kelly] . . . because it was not a party to the contract 

or a party to the Land Court judgment." 

Continuing to assert this defense in his motion for summary 

judgment, Kelly argued that Stewart Title could not enforce the 

second mortgage because "there was no contractual relationship 

between Stewart and Kelly," and it was not a party to the Land 

Court judgment reforming the second mortgage. In other words, 

Kelly made plain that he disputed Stewart Title's position that 

it could enforce the second mortgage as subrogee of JPMorgan.10 

Similarly, in his opposition to Stewart Title's cross

motion for summary judgment, Kelly (again) disputed that Stewart 

Title was a subrogee with rights to enforce the second mortgage. 

 

9 Kelly's affirmative defenses included: "[Stewart Title] 

does not have any signed agreement with [Kelly] allowing it to 

be first lien holder on the [property]. [Stewart Title] lacks 

any contractual relationship with [Kelly]" (emphasis added); and 

because Stewart Title was not a party to the Land Court 

judgment, "it is prohibited from using the terms of that 

judgment against [Kelly] or otherwise stepping into the shoes of 

a party to that judgment" (emphasis added).

10 Kelly, who was pro se, also argued that Stewart Title's 

position was a "manipulation of how subrogation is applied" 

because it sought to elevate JPMorgan to the priority lien 

position even though Stewart Title had paid MERS, which would 

(Kelly argued) at best entitle Stewart Title to be subrogated to 

MERS, putting Stewart Title in the place of MERS –- in a senior 

lien position to its own client, JPMorgan. 
12

Indeed, Kelly's entire defense to the breach of contract claim 

rested on the argument that Stewart Title had no standing to 

bring its claim because it was not a party to the second 

mortgage as reformed by the Land Court judgment. As but one 

example, Kelly's response to Stewart Title's "Statement of 

Material Facts" at the summary judgment stage stated: 

"Kelly disputes that he is obligated to pay [Stewart Title] 

any amounts due to its loss under any contract or 

subrogation theory. The Land Court judgment is enforceable 

only between Kelly and [JPMorgan] as they were the only 

parties to that court action. [Stewart Title] cannot be a 

subrogee to the Land Court judgment. [Stewart Title] 

cannot enforce an unsigned contract it was not a party to." 

(Emphasis added.) 

In fact, Stewart Title acknowledged this as the "crux" of 

Kelly's argument11 and responded by stating that it had standing

to enforce the second mortgage as reformed by the Land Court 

judgment because it was the subrogee of JPMorgan.12 Given this

extensive history, Stewart Title's position that it was not 

aware of the dispute concerning its status as subrogee to 

 

11 Stewart Title asserts that Kelly disputed only the 

enforceability of the Land Court judgment by Stewart Title, as 

opposed to JPMorgan, based on the language of the Land Court 

judgment. See note 3, supra. Even this myopic reading of 

Kelly's position, however, required Stewart Title to show that 

it was subrogated to the rights of JPMorgan, the actual party in 

the Land Court judgment. Indeed, this was the "crux" of Kelly's 

argument and the "crux" of Stewart Title's response. 

12 The issue of Stewart Title's standing to enforce the 

second mortgage also arose at the hearing on the cross motions. 
13

JPMorgan -- an essential element of its breach of contract claim 

-- has no basis. 

To prove its breach of contract claim, Stewart Title was 

required to show that it had a contract with Kelly, or (as was 

its theory) that it was subrogated to JPMorgan's rights under 

the second mortgage. See George W. Wilcox, Inc. v. Shell E. 

Petroleum Prods., Inc., 283 Mass. 383, 388 (1933) (proof of 

enforceable contract required to recover for breach of 

contract); 13 S.H. Jenkins, Corbin on Contracts § 67.39(2), at 

19 (J.M. Perillo ed., rev. ed. 2003) ("In an action for damages 

or other type of reparation for a breach of contract, the 

plaintiff must allege and prove the making of the contract and 

the fact of the breach"). See also General Exchange Ins. Corp. 

v. Driscoll, 315 Mass. 360, 364 (1944) (claim of subrogation 

rights under contract, rather than equitable principles, 

requires proof of express subrogation language). Stewart Title 

chose to rely exclusively on a document that contains no express 

subrogation clause to support its position (which Kelly 

throughout the litigation disputed) that it was JPMorgan's 

subrogee. Stewart Title maintains that it never contended that 

the document it submitted in support of its position that it was 

JPMorgan's subrogee was the entirety of the title insurance 

policy. As the party with the burden to establish a contractual 

right against Kelly, however, it was incumbent upon Stewart 
14

Title to support its claim for subrogation. It cannot, at the 

summary judgment stage, rely on mere allegations or documents 

that fail to support its position. See Madsen v. Erwin, 395 

Mass. 715, 719 (1985); Mass. R. Civ. P. 56 (e), 365 Mass. 824 

(1974). 

As set forth supra, Stewart Title filed a motion for 

reconsideration and an accompanying affidavit from its employee, 

attaching a "jacket" that contained an express subrogation 

provision; Stewart Title contends that the judge abused her 

discretion by denying its motion. See Audubon Hill S. Condo. 

Ass'n v. Community Ass'n Underwriters of Am., Inc., 82 Mass. 

App. Ct. 461, 470 (2012) (denial of Mass. R. Civ. P. 60 [b], 365 

Mass. 828 [1974], motion reviewed for abuse of discretion). 

Where a party moves for reconsideration based on newly submitted 

evidence, it must show that its failure to submit the evidence 

earlier was the result of a "mistake, inadvertence, surprise, or 

excusable neglect." Cullen Enters., Inc. v. Massachusetts

Property Ins. Underwriting Ass'n, 399 Mass. 886, 893-894 (1987), 

quoting Mass. R. Civ. P. 60 (b). Given the disputed nature of 

Stewart Title's subrogation theory, the judge acted within her 

discretion in denying the motion. See Tai v. Boston, 45 Mass. 

App. Ct. 220, 222-223 (1998) ("simple oversight" not excusable 

neglect).
15

b. Implied subrogation. In the alternative, Stewart Title

contends that it is entitled to implied subrogation to pursue 

its contract claim because without it, JPMorgan (its insured)

would receive a windfall because it "would have benefitted by 

removing the priority mortgage without having to pay for this to 

be done."13 While "[t]he reason for implied subrogation under 

contracts of insurance is to prevent an unwarranted windfall to 

the insured," it is not at all clear how allowing Stewart Title

to pursue a claim against Kelly avoids a windfall to JPMorgan. 

Frost, 386 Mass. at 428. 

Moreover, unlike in cases allowing a title insurer to be 

subrogated to the rights of its insured-mortgagee against a 

mortgagor, Kelly is not primarily liable for JPMorgan's loss.14 

 

13 Of course, JPMorgan paid Stewart Title (in the form of 

closing costs from Kelly) the premium for the title insurance 

policy to protect itself from the very risk Stewart Title 

eventually was called upon to cure. "'Unlike other forms of 

insurance, title insurance is not directed at future risks. It 

is directed at risks that are already in existence on the date 

the policy is issued.' Because title insurance narrowly covers 

defects in, or encumbrances on, titles that are in existence 

when a policy issues, title insurers attempt to eliminate or 

reduce risks prior to the issuance of a title insurance 

policy. . . . [T]itle insurance typically requires a single 

premium payment (often a percentage of the property value) for 

indefinite coverage . . . ." GMAC Mtge., LLC v. First Am. Title 

Ins. Co., 464 Mass. 733, 740 (2013), quoting B. Burke, Law of 

Title Insurance § 2.01[C], at 2-22 (3d ed. Supp. 2008).

14 In order to recover under implied subrogation, (1) the 

insured must have suffered an actual loss for which a third 

party is primarily liable; (2) the insurer must have compensated 

the insured for the same loss; and (3) the insurer must have 
16

Kelly, for example, did not represent that the property was 

clear of all encumbrances. Contrast American Title Ins. Co. v. 

Coakley, 419 So. 2d 816, 816 (Fla. Dist. Ct. App. 1982) 

(permitting title insurer, which paid to clear priority Internal 

Revenue Service lien, to be subrogated to rights of its insured 

where third party failed to disclose lien on property despite 

covenant to do so); Transamerica Title Ins. Co. v. Johnson, 103 

Wash. 2d 409, 417-418 (1985) (permitting title insurance 

company, which paid to clear sewer lien on property, to be 

subrogated pursuant to express clause in title insurance policy 

to buyer's rights where seller covenanted to provide property 

free and clear of all liens). 

Here, Stewart Title bears the responsibility because it

(through its agent, Conti) knew that the first mortgage 

encumbered the property and failed to disclose it to JPMorgan, 

thereby depriving JPMorgan of the opportunity to mandate that

the encumbrance be cleared as a condition of the second 

mortgage. Stewart Title now wishes to be subrogated to the 

right of JPMorgan when, years after Stewart Title's negligence

in failing to disclose the first mortgage to JPMorgan, Kelly 

breached a provision of the second mortgage, requiring him to 

 

been obligated to make the payment as a duty to indemnify the 

insured in order to protect its own interest, rather than as a 

volunteer. See 16 L.R. Russ & T.F. Segalla, Couch on Insurance 

3d § 223:1 (2005). See also Frost, 386 Mass. at 428-429.
17

clear the first mortgage within ten days' notice. Stewart Title 

does not cite to any case law where implied subrogation was 

allowed under such circumstances. Indeed, the few cases outside 

Massachusetts that address similar (albeit not identical) 

situations in the title insurance context hold otherwise. See,

e.g., USLife Title Ins. Co. of Dallas v. Romero, 98 N.M. 699, 

703 (1982) (negligence of title insurance company in failing to 

exclude known tax lien from coverage under its policy precluded 

subrogation when it paid lien pursuant to policy); Lawyers Title 

Ins. Corp. v. Edmar Constr. Co., 294 A.2d 865, 869 (D.C. 1972) 

(subrogation principles did not permit title insurer to recover 

from construction company amount it paid to discharge senior 

lienholder where it issued title insurance policy knowing of 

priority lien); Lawyers Title Ins. Corp. v. Capp, 174 Ind. App. 

633, 637 (1977) (subrogation not available to title insurer to 

seek repayment of amount it paid under its policy in view of 

fact that insurer's negligence contributed to its failure to 

exclude defect in title from its policy). 

Some jurisdictions have gone so far as to foreclose

subrogation altogether in such circumstances. See Coy v. Raabe, 

69 Wash. 2d 346, 351 (1966) ("it is difficult to think of a 

situation in which a title insurance company could not claim 

unjust enrichment as to someone who might inadvertently benefit 

by their negligence. Either they insure or they don't. It is 
18

not the province of the court to relieve a title insurance 

company of its contractual obligation"). We need not go so far. 

It is sufficient that on the record presented here, the equities 

do not favor Stewart Title.

Stewart Title's position regarding its rights as JPMorgan's 

subrogee is fatally flawed for an additional reason. When Kelly 

breached the provision of the second mortgage requiring him to 

pay to discharge the first mortgage, JPMorgan's remedy was 

itself to elect to discharge the first mortgage. If it elected 

to do so, JPMorgan would be entitled, under the second mortgage, 

to add the discharge payment as "additional debt" to the second 

mortgage. This additional indebtedness would bear interest as 

set forth in the note secured by the second mortgage. 

The second mortgage further allowed JPMorgan to request 

payment of the additional indebtedness. The record, however, is 

devoid of any such request. Thus, nothing in the second 

mortgage permits Stewart Title to the lump sum payment it now 

seeks.15 See Frost, 386 Mass. at 427 ("If the secondary source 

[the subrogee] pays the obligation, it succeeds to the rights of 

the party it has paid [the creditor or loss victim, called the 

subrogor] against the third, primarily responsible party"). 

 

15 Neither party addresses the impact of the third mortgage 

on the foregoing. 
19

2. Unjust enrichment. Stewart Title contends that there 

is a material dispute of fact as to whether Kelly reasonably 

should have expected it to pay to discharge the first mortgage 

and thus that summary judgment should not have entered as to 

that claim. In order to recover for unjust enrichment, a 

plaintiff must prove that (1) it conferred a measurable benefit 

upon the defendant; (2) it reasonably expected compensation from 

the defendant; and (3) the defendant accepted the benefit with 

the knowledge, actual or chargeable, of the plaintiff's 

reasonable expectation. See Finard & Co. v. Sitt Asset Mgt., 79 

Mass. App. Ct. 226, 229 (2011). Here, Stewart Title's claim 

falters on at least the third element. It is undisputed that 

Kelly's first notice that Stewart Title paid to discharge the 

first mortgage came when Stewart Title filed the present action. 

There is no evidence that Kelly had actual or constructive 

knowledge of Stewart Title's intent or plan to discharge the 

first mortgage, or Stewart Title's expectation to be compensated 

by Kelly for its action. At best, the record shows that Kelly 

should have known that, following his inability to pay to 

discharge the first mortgage, JPMorgan could elect to discharge 

it and add the amount to Kelly's overall indebtedness at the 

agreed upon interest rate. In light of the foregoing, summary 

judgment was proper.16

 

16 Stewart Title's request for appellate attorney's fees and 
20

Judgment affirmed. 

Order denying motion for 

reconsideration affirmed. 

 

costs is denied.