REAL PROPERTY UPDATE

• Marketable Record Title Act: right-of-way held by Florida Department of Transportation qualifies for right of way exception under MRTA and remainder of property held in fee by Florida Department of Transportation is also excluded – Florida Department of Transportation v. Clipper Bay Investments, LLC, No. SC13-775 (Fla. Mar. 26, 2015) (quashed and remanded)
• Summary Judgment/Civil Procedure: consideration of summary judgment on less than 20 days notice as required by Florida Rule of Civil Procedure 1.510 (c) where no objection made and no contention that outcome would have been different was harmless procedural error – White v. Ocwen Loan Servicing, LLC, No. 3D13-3229 (Fla. 3rd DCA March 25, 2015) (affirmed)
• Foreclosure/Standing: error in denying defendant's motion for involuntary dismissal where plaintiff presented no competent evidence it was holder of note at time it filed suit or that it was a nonholder in possession by proving "chain of custody" of the negotiable instrument. – Seffar v. Residential Credit Solutions, Inc., No. 4D13-3514 (Fla. 4th DCA  March 25, 2015) (reversed and remanded)
• Foreclosure/Sale Proceeds: error in directing clerk to disburse surplus from foreclosure to subordinate lienholder who did not file claim within sixty days after sale; failure to receive a copy of the foreclosure judgment does not waive requirement. – Saulinier v. Bank of America, N.A., No. 4D13-4815 (Fla. 4th DCA March 25, 2015 (reversed and remanded)

TITLE INSURANCE UPDATE

• CPL: agent’s failure to record a notice of settlement and to update title search prior to closing does not give rise to a covered loss under a CPL where the lender’s written closing instructions did not require the agent to do these things – Healthcare Employees Federal Credit Union v. GMAC Mortgage Corp., Case No. A-3968-12T1 (N.J. App. March 24, 2015) (affirming in part and reversing in part summary judgment orders)
• Damages: if insurer establishes equitable lien in an amount less than the amount of outstanding principal, insurer may nevertheless have no liability if the value of the property is less than the amount of the equitable lien established – Healthcare Employees Federal Credit Union v. GMAC Mortgage Corp., Case No. A-3968-12T1 (N.J. App. March 24, 2015) (affirming in part and reversing in part summary judgment orders)
• Continuation of Coverage: assignment of mortgage to third party does not necessarily cut off insured lender’s claim under title insurance policy where loss arose prior to assignment – Western Capital Partners, LLC v. First American Title Ins. Co., Case No. 14-cv-0454 (D. Colo. March 19, 2015) (order denying motion for summary judgment)
• Coverage: granting summary judgment to defendant title insurer where plaintiff’s only evidence that he paid a title insurance premium and was thus entitled to a title insurance policy was his own unsupported testimony which contradicted the record evidence including the HUD settlement statements – Howard v. Fidelity National Title Ins. Co., Case No. 4:10cv2368 (E.D. Mo. March 17, 2015) (order granting summary judgment)
• Bank Fraud: individual convicted of bank fraud is barred by res judicata from claiming that others are in fact guilty of the crimes he was convicted of and that his conviction was the result of the defendants’ actions – White v. Old Republic National Title Ins., Case No. 1:12-07965 (S.D. W.V. March 12, 2015) (order dismissing complaint)