Ohio Senate Bill 94 Seeks to Codify the Doctrine of Equitable Subrogation

Introduced in the Senate on March 23, 2023, and referred to committee on March 29, 2023, Ohio Senate Bill 94, known in short form as the Bill that “regards the Treasurer of State, recorded instruments, liens, etc.,” sponsored by Senators Andrew O. Brenner (R) and Al Landis (R), seeks to amend numerous sections of the Ohio Revised Code related to recorded instruments, but also to enact section §5301.234, thereby codifying the doctrine of Equitable Subrogation.

​The legal doctrine of equitable subrogation permits one mortgagee to replace another mortgagee in lien priority and is typically claimed refinancing lenders who pay off the original mortgage and want to have the same priority as that lender. The doctrine seeks to prevent unjust enrichment and promote equity.

Proposed §5301.234 codifies this doctrine as follows:

“(A) A mortgage encumbering real property granted to secure the repayment of funds used to satisfy a mortgage or lien on such real property shall be subrogated to the priority of the mortgage or lien that was satisfied to the extent of the amount satisfied if both of the following apply:

1. The intent of the parties to the new mortgage is that the new mortgage would have the priority of the mortgage or lien satisfied.
2. The expectation of the holder of a subordinate mortgage or lien at the time that it received its interest was that it would be junior to the mortgage or lien that was satisfied.

(B) A mortgagee seeking to be subrogated pursuant to division (A) of this section to the priority of a lien that the mortgagee has satisfied shall not be denied subrogation for any of the following reasons:

1. The mortgagee meets any of the following criteria:​
   1. ​​The mortgagee is engaged in the business of lending​
   2. The mortgagee had actual knowledge or constructive notice of the mortgage or lien over which the mortgagee would gain priority through subrogation.
   3. The mortgagee or a third party committed a mistake or was negligent.
2. The lien for which the mortgagee seeks to be subrogated was released.
   
3. The mortgagee obtained a title insurance policy.

(C) Notwithstanding division (A) of this section, the holder of a subordinate mortgage or lien shall retain the same subordinate position that such person would have had if the prior mortgage or lien had not been satisfied.”

The text of SB 94 in its current version can be found here.