Wilmington Savings Fund Society, FSB v. Zarkhin

Plaintiff filed mortgage foreclosure action against 2 Defendants, alleging that its mortgage, although recorded after the mortgage held by 2 other Defendants had priority because it was intended and used to pay off at least in part 2 mortgages that had been recorded prior to that mortgage. Subsequent conduct of Defendants does not negate the clear intent of their agreement with their lender that lender would be subrogated to the rights of the 2 senior lenders to the extent of its loan to them, and there was no unfair prejudice to other 2 Defendants.(BIRKETT and McLAREN, concurring.)