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


  • 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).


  • 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)


  • 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)


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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.

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