Real Property, Financial Services & Title Insurance Case Law Update: Week Ending October 4, 2013

by Carlton Fields
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I. FLORIDA STATE CASES – JOURDAN HAYNES & CHRIS SMART

  • MRTA: marketable record title act represents codified limitation on title insurer’s obligation to research public records in connection with issuance of title insurance and precludes implied notice of matters eliminated by the act – Village Carver Phase 1, LLC v. Fidelity National Title Ins. Co., No. 3D12-166 (Fla. 3d DCA Sept. 30, 2013) (affirming dismissal)

II. 11TH CIRCUIT CASES - LAUREN SEMBLER

  • FDCPA: law firm’s letter to tenant demanding rents be paid to HOA rather than landlord who was delinquent in paying assessments not abusive debt collection practice in violation of FDCPA where tenant living rent free and letter would not lead least sophisticated consumer to conclude eviction imminent if tenant failed to pay rents not owed to landlord – Rivernider v. Brough, No. 9:12-cv-80693-KAM (S.D. Fla. Sept. 24, 2013) (granting defendants’ motion for summary judgment)

III. TITLE INSURANCE CASES - CHRIS SMART

  • Exclusion 3: court’s invalidation of insured condominium declaration based on violation of condo act and improper voting procedures does not necessarily mean defect was “created” by insured where policy insures development and declarant’s rights –  IDC Properties Inc. v. Chicago Title Ins. Co., No. 09-632 (D.R.I. Sept. 30, 2013) (order denying summary judgment)
  • MRTA: marketable record title act represents codified limitation on title insurer’s obligation to research the public records in connection with issuance of title insurance and precludes implied notice of matters eliminated by the act – Village Carver Phase 1, LLC v. Fidelity National Title Ins. Co., No. 3D12-166 (Fla. 3d DCA Sept. 30, 2013) (affirming dismissal)
  • Coverage: Fla. Stat. § 704.08 creates only personal privilege (to access and visit cemeteries) and not an interest in real property and does not need to be listed as an exception to title insurance – Village Carver Phase 1, LLC v. Fidelity National Title Ins. Co., No. 3D12-166 (Fla. 3d DCA Sept. 30, 2013) (affirming dismissal)
  • Leasehold Policy: where insured leasehold interest may be valued based on income capitalization approach and on financial feasibility of operations on leasehold premises, title insurer entitled to financial discovery from insured – Commonwealth Land Title Ins. Co. v. OMG Americas, Inc., No. 2:10-cv-1027 (D. Utah Sept. 29, 2013) (granting motion to compel)
  • Bankruptcy: borrower’s allegations that there was no lender at the closing of his refinance transaction, no lien on his property, and that a title policy was issued failed to state any cause of action against title insurer – Morse v. Commonwealth Land Title Ins. Co., No. 4:12-cv-00375 (E.D. Tex. Sept. 24, 2013) (order adopting R&R dismissing complaint with prejudice)
  • Class Action: court rejected defendant’s argument that plaintiff was cherry picking samplings and granted motion to certify class based on sampling of 142 transactions close by 6 agents – Mahon v. Chicago Title Ins. Co., No. 3:09-cv-690 (D. Conn. Sept. 30, 2013) (order granting plaintiff’s motion for class certification)
  • Bankruptcy: title agent’s obligations to insurer non-dischargeable where agent ran Ponzi scheme by commingling escrow funds and failing to pay off prior lenders of record – In re Colson, No. 09-51954 (S.D. Miss. Sept. 23, 2013) (order on dischargeability of debt)

 

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Carlton Fields
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