Real Property, Financial Services & Title Insurance Case Law Update: Week Ending September 13, 2013

I. FLORIDA STATE CASES – JOURDAN HAYNES

  • Foreclosure: summary judgment precluded where borrowers pled legally sufficient defense that was not factually refuted by lender – Seale v. Regions Bank, No. 4D12-3869 (Fla. 4th DCA Sept. 11, 2013) (reversed and remanded for further proceedings).

II. 11TH CIRCUIT CASES - JIN LIU

  • Condominium: recorded declaration creates condominium, even if it fails to comply with statutory requirements, if action challenging compliance is not brought within 3 years of recording -- McGee v. Commonwealth Land Title Ins. Co., No. 12-11141 (11th Circ. Sept. 12, 2013) (affirming dismissal of complaint)

III. TITLE INSURANCE CASES - CHRIS SMART & DANA BLUNT

  • Title Search: reasonably diligent title search does not require title insurer to identify document that was not a “public record,” which insured was able to find only after hundreds of hours of searching across four cities – Harpole v. Powell County Title Co., Case No. 12-0614 (Mont. Sept. 10, 2013) (affirming summary judgment)
  • Duty to Defend: where insured developer conveys property and no longer owes any warranty obligation, policy terminates and insurer has no duty to defend insured against action by subsequent owner – Back Creek Partners, LLC v. First Am. Title Ins. Co., Case No. 492 (Md. App. Sept. 6, 2013) (affirming summary judgment)
  • Class Action: class of purchasers allegedly entitled to but who did not receive discounted reissue rate for title insurance could not meet commonality or predominance requirements and “failed to put forward a workable method of ascertaining the class” – Ramirez v. Fidelity Nat’l Title Ins. Co., No. CV-09-00230-TUC-JGZ (D. Ariz. Sept. 11, 2013) (decertifying class)