Real Property, Financial Services & Title Insurance Case Law Update: Week Ending February 14, 2014

by Carlton Fields
Contact

I. FLORIDA STATE CASES – SARA WITMEYER

  • Arbitration/Waiver: defendant waived right to arbitration by defending against claim of replevin in court litigation for two years – Gen. Elec. Capital Corp. v. Bio-Mass Tech, Inc., No. 2D13-1657 (Fla. 2d DCA Feb. 12, 2014) (reversing order staying action and compelling arbitration)
  • Foreclosure/Authentication: court erred in admitting documents relied upon by testifying employee of loan servicer to establish amount due on note, which were hearsay and were not properly authenticated, where no showing employee was records custodian or had personal knowledge – Kelsey v. SunTrust Mortg., Inc., No. 3D12-2994 (Fla. 3d DCA Feb. 12, 2014) (granting rehearing, reversing final default judgment of foreclosure)
  • Foreclosure/Standing: foreclosing plaintiff failed to establish standing to bring action, where it filed  original note containing undated endorsement in blank after complaint was filed and it failed to file evidence establishing that it obtained possession of note prior to filing complaint – Zimmerman v. JPMorgan Chase Bank, N.A., No. 4D12-2190 (Fla. 4th DCA Feb. 12, 2014) (reversing final judgment of foreclosure)
  • Temporary Injunction/Modification: court abused discretion by modifying temporary injunction to disburse to lender disputed funds from court registry with no restrictions, effectively granting lender permanent relief without considering borrower’s counterclaims – Minty v. Meister Fin. Group, Inc., No. 4D13-699 (Fla. 4th DCA Feb. 12, 2014) (reversing modification of temporary injunction)
  • Slander of Title: property owner stated slander of title claim based on lien for unpaid maintenance assessments where she alleged lien was cloud on title resulting in special damages, including inability to obtain conventional loan, loss of contract to sell property, inability to lease property, and damage to creditworthiness – Jenkins v. Plaza 3000, Inc., No. 4D12-4326 (Fla. 4th DCA Feb. 12, 2014) (reversing final judgment)
  • Damages: award for unpaid maintenance assessments not supported by competent, substantial evidence where interest charged exceeded statutory rate – Jenkins v. Plaza 3000, Inc., No. 4D12-4326 (Fla. 4th DCA Feb. 12, 2014) (reversing final judgment)

II. 11TH CIRCUIT CASES - JIN LIU

  • Assignment of Mortgage: Alabama law renders an unrecorded assignment of mortgage void as to a purchaser, mortgagee, or judgment creditor, but not as to borrower -- Watkins v. Regions Mortgage Inc., No. 13-12564 (11th Circ. Feb. 14, 2014) (affirming granting of summary judgment)

III. TITLE INSURANCE CASES - CHRIS SMART

  • Agent Liability: title insurance issuing agent is not a co-insurer with title insurance company for whom it acts as agent and cannot be liable for breach of title insurance policy – Kloster v. Roberts, No. 30546-5 (Wash. App. Feb. 6, 2014) (affirming summary judgment)
  • Commitments: a commitment does not represent status of title but is merely a statement of the terms and conditions for issuance of title insurance policy – Kloster v. Roberts, No. 30546-5 (Wash. App. Feb. 6, 2014) (affirming summary judgment)
  • Commitments: a commitment is not an abstract of title and may not serve as basis for negligent misrepresentation claim – Kloster v. Roberts, No. 30546-5 (Wash. App. Feb. 6, 2014) (affirming summary judgment)
  • Duty to Defend: absent an adverse claim by a third party, a title insurer is not obligated to file an action to quiet title as part of its duty to defend title in Section 4 of the conditions and stipulations of the policy – Kloster v. Roberts, No. 30546-5 (Wash. App. Feb. 6, 2014) (affirming grant of motion for judgment as matter law)
  • Duty to Defend: the duty to defend does not arise if the alleged claim is clearly not covered under the policy – Kloster v. Roberts, No. 30546-5 (Wash. App. Feb. 6, 2014) (affirming grant of motion for judgment as matter law)
  • Bad Faith: title insurer’s denial of coverage based on reasonable interpretation of policy does not amount to bad faith – Kloster v. Roberts, No. 30546-5 (Wash. App. Feb. 6, 2014) (affirming grant of motion for judgment as matter law)
  • Access: while policy insures access, it does not insure specific access by easement across adjacent property where easements are excluded from coverage and insured had other legal access to insured property – Kloster v. Roberts, No. 30546-5 (Wash. App. Feb. 6, 2014) (reversing judgment)
  • Policy Interpretation: easements depicted on sketch attached to title insurance policy which states that it is being provided as a courtesy and is not a part of the policy do not render the otherwise clear terms of the policy ambiguous – Kloster v. Roberts, No. 30546-5 (Wash. App. Feb. 6, 2014) (reversing judgment)

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!