Real Property, Financial Services, & Title Insurance Update

by Carlton Fields
Contact

REAL PROPERTY UPDATE

  • Foreclosure: reservation of jurisdiction in final judgment to determine amount of attorneys’ fees renders that portion of judgment non-final and non-appealable – BAC Home Loans Servicing LP v. Ridgway, No. 1D13-3853 (Fla. 1st DCA June 25, 2014) (affirming in part, dismissing in part)
  • Foreclosure: trial court entitled to presumption of correctness in entry of final judgment of foreclosure where transcript of proceeding not available for review – Muhammad v. BAC Home Loans Servicing, LP, No. 4D13-1580 (Fla. 4th DCA June 25, 2014) (affirming final judgment)
  • Foreclosure: accelerated mortgage remains enforceable after voluntary dismissal of foreclosure action and may be accelerated again based upon different default less than five years old – Evergrene Partners, Inc. v. Citibank, N.A., No. 4D13-2236 (Fla. 4th DCA June 25, 2014) (affirming dismissal of borrower’s complaint to cancel mortgages)
  • Foreclosure:  court abused discretion by involuntarily dismissing foreclosure action without prejudice based on bank’s failure to comply with court’s Uniform Order Setting Cause for Non-Jury Trial and Trial Instructions where case not properly at issue, parties had requested continuance that would not have prejudiced either party, and bank counsel’s failure to timely serve Uniform Order was “honest error” – Ocean Bank v. Garcia-Villalta, No. 3D13-461 (Fla. 3d DCA July 2, 2014)  (remanding for reinstatement of foreclosure action)
  • Foreclosure/Attorneys’ Fees:  evidence insufficient to support award of attorneys’ fees and costs where affidavits of condominium association’s attorney and fees expert not introduced into evidence and no testimony of expert or timekeeping attorneys at trial – Diwakar v. Montecito Palm Beach Condo. Ass’n, No. 4D13-915 (Fla. 4th DCA July 2, 2014) (remanding for additional evidence on attorneys’ fees).

FINANCIAL SERVICES UPDATE

  • TILA: TILA does not impose liability on servicers for failure by new owner of debt to notify borrower of transfer of ownership of debt within 30 days of transfer – Hayes v. U.S. Bank National Association, No. 13–80610–CIV (S.D. Fla. June 30, 2014) (granting motion to dismiss)
  • FDCPA: Plaintiff failed to allege servicer was debt collector subject to FDCPA when plaintiff failed to allege mortgage in default at time of transfer to servicer for servicing – Hayes v. U.S. Bank National Association, No. 13–80610–CIV (S.D. Fla. June 30, 2014) (granting motion to dismiss)

TITLE INSURANCE UPDATE

  • Statute of Limitations: statute of limitations on breach of title insurance policy claim begins to run on date of foreclosure sale when insured mortgage was divested because – contrary to the policy – it was junior to a prior lien – U.S. Bank Nat’l Ass’n v. First American Title Ins. Corp., No. 13-2594 (3rd Cir. June 20, 2014) (affirming judgment)
  • Class Action: declining to vacate order granting summary judgment on claims under unfair trade practices act due to lack of justifiable reliance and decertifying class based on the predominance of individual questions – Slapikas v. First American Title Ins. Co., No. 06-0084 (W.D. Penn. June 19, 2014) (denying motion to vacate order and stay case)
  • Legal Services: question whether attorney title insurance agent provides legal services in performing a search, forming an opinion of title, and issuing a commitment or policy certified to Alabama Supreme Court – Mississippi Valley Title Ins. Co. v. Thompson, No. 12-16188 (11th Cir. June 19, 2014) (certifying question)
  • Bankruptcy: mortgage debt held nondischargable due to false representations where borrowers whose mortgage was unrecorded due to title company error sold the collateral, failed to disclose mortgage at closing, failed to pay off mortgage with proceeds of closing, and hid closing from mortgagee by making payments for three years – In re Krause, No. 13-B-15811 13-A-00901 (N.D. Ill. April 30, 2014) (memorandum opinion determining debt nondischargable)
  • Right to Cure: delay of 20 months before filing quiet title action gives rise to strong inference that insurer failed to act with reasonable diligence in curing title – Granelli v. Chicago Title Ins. Co., No. 13-1024 (3rd Cir. June 17, 2014) (vacating order of summary judgment in part)
  • Tort: PCA of final summary judgment holding that claim for negligent failure to disclose foreign bankruptcy after title insurance commitment issued barred by exculpatory language limiting claims to those based on and subject to terms of commitment – Land Management of South Florida Inc. v. Attorney’s Title Ins. Fund, Inc., No. 2D13-2641 (Fla. 2nd DCA June 27, 2014) (per curiam affirmed). Congratulations to Brian Koch, Alaine Greeberg, and William Clayton on this significant post-Tiara judgment and PCA
  • Agent: principal of corporate agent who uses escrow funds of third parties for own personal obligations not entitled to hide behind corporate form and insurer injured by his actions may pierce corporate veil – Old Republic National Title Ins. Co. v. Home Abstract and Title Co., Inc., No. 1:12cv00171 (D. Utah June 27, 2014) (memorandum decision and order granting in part summary judgment)
  • Continuation of Coverage: insured who voluntarily transfers property by quit claim deed to affiliate entity terminates coverage under title insurance policy – Durbano & Garn Invst. Co., LC v. First Am. Title Ins. Co., No. 20120943 (Utah App. June 26, 2014) (affirming summary judgment)
  • CPL: title insurer seeks rehearing on whether defendant must have standing to assert defenses based on plaintiff’s purchase and assumption agreement and whether CPLs are tied to corresponding loans and title insurance policies – JPMorgan Chase Bank, N.A., v. First American Title Ins. Co., Case No. 12-2094; 13-1172 (6th Cir. June 9, 2014) (petition for panel rehearing and rehearing en banc)
  • CPL: claim for breach of CPL independent of claim under related title policy – JPMorgan Chase Bank, N.A., v. FDIC, No. 12-2094; 13-1172 (6th Cir. July 2, 2014) (amended opinion affirming judgment)
  • CPL: title insurer lacked standing to invoke court’s jurisdiction as to purchase and assumption agreement and challenge parties’ understanding of agreement – JPMorgan Chase Bank, N.A., v. FDIC, No. 12-2094; 13-1172 (6th Cir. July 2, 2014) (amended opinion affirming judgment)
  • CPL: where proceeds from sale of property and damages award do not exceed amount original lender transferred to title agent for transaction, insurer not subject to double liability – JPMorgan Chase Bank, N.A., v. FDIC, No. 12-2094; 13-1172 (6th Cir. July 2, 2014) (amended opinion affirming judgment)
  • CPL: claimant entitled to pre-complaint interest under Michigan law where damages are liquidated – JPMorgan Chase Bank, N.A., v. FDIC, No. 12-2094; 13-1172 (6th Cir. July 2, 2014) (amended opinion affirming judgment)
  • CPL: evidence of inconsistent position taken by claimant in pleadings in other cases regarding ownership of CPL submitted with Rule 60(b)(2) motion did not call into question claimant’s position that it owned the CPL in this case – JPMorgan Chase Bank, N.A., v. FDIC, No. 12-2094; 13-1172 (6th Cir. July 2, 2014) (amended opinion affirming judgment)

IN THE NEWS

Last fall the CFJB update reported on In re Colson, No. 09-51954 (S.D. Miss. Sept. 23, 2013), where the bankruptcy court held that a title agent’s obligations to its underwriter were non-dischargeable because the agent basically ran a Ponzi scheme by using funds from new closings to pay for prior transactions and failing to pay off prior lenders of record.  Recently, the Biloxi attorney who owned that title agency was sentenced to five-year prison term and ordered to pay more than $8 million in restitution. Congratulations to Robert Perry Jr. who testified at trial and Eric Appel who handled the claim.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields
Contact
more
less

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!