Real Property, Financial Services & Title Insurance Update: August 2014 #1

by Carlton Fields
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REAL PROPERTY UPDATE

  • Foreclosure/Lack of Prosecution: Trial court erred in granting lender’s motion to vacate an order dismissing its foreclosure complaint for lack of prosecution without first giving borrower an opportunity to be heard at an evidentiary hearing. – Arcila v. BAC Home Loans Servicing, L.P., No. 2D13-2366 (Fla. 2nd DCA Aug. 6, 2014) (reversed and remanded)
  • Foreclosure/Standing: Trial court erred in entering final judgment of foreclosure where lender failed to provide documentation which established that it had standing at the time it filed the foreclosure complaint. – Boyd v. Wells Fargo Bank N.A., as Trustee for Option One Mortgage Loan Trust 2006-1 Asset Backed Certificates Series 2006-1 et al., No. 4D13-208 (Fla. 4th DCA Aug. 6, 2014) (reversed)
  • Deficiency Judgment: Mortgage lender that proceeds with foreclosure cannot enforce money judgment prior to entry of deficiency judgment. Hammond v. Kingsley Asset Management, LLC, Case No. Nos. 2D13–4425, 2D13–4522 (Fla. 2d DCA August 13, 2014).
  • Statute of Limitations to Correct Title: Purpose of section 95.231(2), Florida Statutes, is clear title to real estate of formal irregularities by limiting the time within which such defects can be asserted to 20 years, but cannot validate a conveyance made by someone who had never had an interest in the property. Hardey v Shell, Case No. 2D12-3925 (Fla. 2d DCA August 14, 2014

FINANCIAL SERVICES UPDATE

  • FCCPA: Florida Consumer Collection Practices Act applies to anyone collecting a debt (secured and/or unsecured), and not just a "debt collector". Gann v. BAC Home Loans Servicing LP, Case No. 2D12-6271 (Fla. 2d DCA August 15, 2014)

TITLE INSURANCE UPDATE

  • Mechanic Liens: affirming title insurer’s entitlement to indemnification and prejudgment interest over indemnitors’ claims that insurer was negligent and that alleged losses had to be allocated pro rata to only one of the indemnitors – Commonwealth Land Title Ins. Co. v. Historic Ivy Tower, LLC, Case no. A13-1621 (Minn. App. Aug. 4, 2014) (affirming in part, reversing in part summary judgment)
  • Right to Cure Title: title insurer has contractual right to seek to establish priority of the lien of the insured mortgage as an alternative to payment of insured’s claim – DAFCO, LLC v. Stewart Title Guaranty Company, Case No. 40738 (Idaho July 31, 2014) (affirming summary judgment)
  • Agent’s Liability: where a closing agent is not acting as title insurer and a successor mortgagee is not a party to the escrow agreement and closing instructions of the original lender and not a third party beneficiary thereof, there is no privity of contract and claims for breach of contract by the successor mortgagee against the agent must be dismissed – DAFCO, LLC v. Stewart Title Guaranty Company, Case No. 40738 (Idaho July 31, 2014) (affirming summary judgment)
  • Agent’s Liability: closing agent had an independent duty to ascertain what client wanted out of 1031 exchange closing and subsequent closing contract did not alleviate that duty – Kreisers Inc. v. First Dakota Title Ltd., Case Nos. 26809 & 26818 (S.D. July 30, 2014) (affirming judgment)
  • Agent’s Liability: declining to extend the economic loss doctrine to closing agent’s duties – Kreisers Inc. v. First Dakota Title Ltd., Case Nos. 26809 & 26818 (S.D. July 30, 2014) (affirming judgment)
  • Exclusion 3(a): lender who bargains for a second lien position is not entitled to coverage based on prior loan because it “agreed” to the prior loan under the policy’s 3(a) exclusion, even if the commitment marked the prior first mortgage as “removed” and even if the policy failed to include an exception for the prior first mortgage – Beneficial Mut. Sav. Bank v. Stewart Title Guar. Co., Case No. 12-6256 (E.D. Penn. Aug. 11, 2014) (memorandum granting summary judgment)
  • Attorney Client Privilege: insured owner is entitled to discover communications between its title insurer and the law firm hired by the title insure to recover amounts paid to the insured in a subrogation action, where the title insurer also hired the same firm to represent the insured in a separate, earlier action to cure title – Feduniak v. Old Republic National Title Insurance Company, Case No. 5:13-cv-02060 (N.D. Cal. Aug. 7, 2014) (order on discovery dispute)

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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