Real Property, Financial Services & Title Insurance Case Law Update: Weeks Ending August 9 & 16, 2013


  • Slander of Title: slander of title counterclaim barred by statute of limitations could not be brought as recoupment claim to avoid limitations because it did not spring from same transaction or occurrence as underlying claim – Regions Bank d/b/a Regions Mortgage v. Cuny, No. 1D12-2843 (Fla. 1st DCA Aug. 9, 2013) (affirmed in part and reversed in part)
  • Lost Note: bank failed to present sufficient evidence at trial to reestablish lost note under Fla. Stat. § 673.3091 where it failed to prove note terms (no specific testimony elicited and copy of note not entered into evidence) or its right to enforce the note – Correa v. U.S. Bank National Assoc. as Trustee, No. 2D12-2209 (Fla. 2d DCA Aug. 9, 2013) (reversing with directions to dismiss complaint)
  • Arbitration: homeowners’ association’s tactical decision to plead amended complaint as action based on statutory violations instead of action for breach of warranty did not prevent action from being compelled to arbitration – Pulte Home Corp. v. Bay at Cypress Creek Homeowners’ Assoc. Inc., No. 2D13-316 (Fla. 2d DCA Aug. 9, 2013) (reversing order denying renewed motion to compel arbitration)
  • Foreclosure: genuine issue of material fact as to bank’s standing precluded summary foreclosure judgment where borrowers challenged validity of signatures on allonges and bank failed to present evidence of signatory’s authority to overcome -- Bennett v. Deutsche Bank Nat’l Trust Co., No. 4D12-2471 (Fla. 4th DCA Aug. 7, 2013) (reversing final summary judgment of foreclosure)
  • Venue: action on lien transfer bond must be brought in circuit court of county where bond posted, notwithstanding mandatory venue provision in parties’ contract – Attaway Electric, Inc. v. Kelsey Construction Inc., No. 4D13-710 (Fla. 4th DCA Aug. 7, 2013) (reversing with directions to vacate order transferring venue)
  • Discovery in Aid of Execution: judgment creditor entitled to discovery of debtor’s assets, even if jointly held by debtor and debtor’s spouse, but not entitled to discovery of assets held only by debtor’s spouse -- Regions Bank v MDG Frank Helmerich, LLC, No. 2D12-2427 (Fla. 2d DCA Aug. 14, 2013) (order denying motion to compel affirmed in part, reversed in part, and remanded)
  • Declaratory Relief: complaint seeking declaratory relief concerning ordinance cannot be dismissed on ground that plaintiff failed to exhaust all administrative remedies -- Angelo’s Aggregate Materials, LTD v Pasco County, No. 2D12-3112 (Fla. 2d DCA Aug. 14, 2013) (dismissal reversed)
  • Attorney’s Fees: condominium association’s refusal to accept foreclosing bank’s reduced payoff of past due assessments per Fla. Stat. § 718.116 entitled bank to attorney’s fees under Fla. Stat. § 718.303(1) as prevailing party in dispute between unit owner and association -- Ocean Bank v Caribbean Towers Condominium Association, No. 3D12-1096 & 3D12-1889 (Fla. 3d DCA Aug. 14, 2013) (order reversed)
  • Judgment: final judgment should not have been entered when a related counterclaim remained pending -- Dilican v Normandy Village Property Owners Association, Inc., No. 4D12-587 (Fla. 3d DCA August 14, 2013) (reversing summary judgment)
  • Sunshine Law: Fla. Stat. § 286.0114 does not give public a right to be heard or participate in a city commission meeting -- Herrin v City of Deltona, No. 5D12-1887 (Fla. 5th  DCA Aug. 16, 2013) (affirmed)


  • Standing: successor bank had standing to foreclose as a result of merger because, by virtue of merger, power to foreclose vested in bank without any further assignment or conveyance required – Horowitz v. CitiMortgage, Inc., No. 13-11383 (11th Cir. Aug. 9, 2013) (affirming district court’s grant of motion to dismiss)
  • Non-judicial Foreclosure: foreclosure notices were adequate when they identified contact information of loan servicer and were sent at least 30 days before foreclosure sale, even though (i) they did not identify secured creditor or specific date of sale and were sent by a law firm and (ii) foreclosure sale advertisement was not sent together with foreclosure notices – Carr v. U.S. Bank, NA, No. 1:11-cv-00821-SCJ (11th Cir. Aug. 16, 2013) (affirming summary judgment)


  • Curing Title: title insurer who obtains quit claim deeds in favor of insured, which, under Louisiana law, rendered title “free of rational substantial doubt,” cures the alleged defect and renders title marketable within the meaning of the title insurance policy – Martin v. Fidelity Nat’l Title Ins. Co., No. 13-30013 (5th Cir. Aug. 5, 2013) (affirming judgment)
  • Closing Protection Letters: CPL issued without “successors or assigns” language is not enforceable by a subsequent owner of the loan made by the lender who was original addressee of the letter – U.S. Bank N.A. v. Lawyers Title Ins. Corp., No. 09013702 (Super. Conn. July 11, 2013) (granting in part, denying in part insurer’s motion for summary judgment)
  • Commitment: title insurance commitment is not invalid merely because the insurer’s independent agent neglects to attach the commitment jacket – U.S. Bank N.A. v. Lawyers Title Ins. Corp., No. 09013702 (Super. Conn. July 11, 2013) (granting in part, denying in part insurer’s motion for summary judgment)
  • Standing: assignee of lender sufficiently alleged that title insurance policy and closing protection letter had been assigned to it in order to withstand motion to dismiss – Aurora Loan Services, LLC v. Hirsch, No. 106008973 (Super. Conn. June 28, 2013) (denying motion to dismiss) (copy not publicly available)


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