Real Property, Financial Services & Title Insurance Case Law Update: Week Ending September 20, 2013

I. FLORIDA STATE CASES - ILAN NIEUCHOWICZ & SASHA FUNK GRANAI

  • Ad Valorem Taxes: presumption that assessment correct lost in ad valorem tax challenge where taxpayer proves by preponderance of evidence either (i) appraiser did not consider properly criteria of Fla. Stat. § 193.011 or (ii) arbitrarily used appraisal practices not generally applied; “any-reasonable-hypothesis” standard abrogated - CVS EGL Fruitville Sarasota FL, LLC v. Todora, No. 2D-122966 (Fla. 2d DCA Setp. 18, 2013) (reversed and remanded)
  • Tax Deed/Associations: lien for unpaid homeowners’ association assessments does not survive issuance of tax deed - Crickett Props., LLC v. Nassau Pointe at Heritage Isles Homeowners Association, Inc., No. 2D12-6194 (Fla. 2d DCA Sept. 20, 2013) (reversed and remanded)
  • Foreclosure: foreclosure judgment and sale affirmed where borrower failed to present any competent evidence showing court committed error – Corning v. Wells Fargo Bank, N.A., No. 1D12-4617 (Fla. 1st DCA Sept. 19, 2013) (affirmed) [Congratulations to Carlton Fields attorneys Michael Winston, Dean Morande, and Donna Eng, who represented Wells Fargo in this appeal]
  • Date of Service: private postage-meter date is competent substantial evidence that can  rebut prima facie proof created by date in certificate of service – JPMorgan Chase, N.A. v. Bigley, No. 3D12-995 (Fla. 3d DCA Sept. 18, 2013) (reversed and remanded).
  • Sanction of Dismissal: order striking pleadings and entering default and final judgment as sanction for discovery violations reversed and remanded where court failed to consider factors set forth in Kozel v. OstendorfHeritage Circle Condo. Ass’n., Inc. v. DBPR, No. 4D12-1733 (Fla. 4th DCA Sept. 18, 2013) (reversed and remanded)

II. 11TH CIRCUIT CASES – LAUREN SEMBLER

  • TILA: court invalidated lender’s security interest in borrower’s residence where (i) lender had borrower sign release of right of rescission before expiration of rescission period, and (ii) lender did not provide borrower two copies of notice of right of rescission - Fisher Harris v. Schonbrun, No. 3:12-cv-488-J-MCR (M.D. Fla. Sept. 13, 2013) (ordering rescission conditioned upon repayment of benefit)
  • TILA: although lender’s security interest invalidated for TILA violations, borrower required to repay lender full benefit received where borrower did not attempt rescission until after lender filed foreclosure, almost two years after expiration of right to rescind - Fisher Harris v. Schonbrun, No. 3:12-cv-488-J-MCR (M.D. Fla. Sept. 13, 2013) (ordering rescission conditioned upon repayment of benefit)

III. TITLE INSURANCE CASES - CHRIS SMART

  • Closing Agent: FDIC-R has standing to bring claims against closing agent, having retained those claims pursuant to section 3.5 of its purchase and assumption agreement – FDIC-R v. Floridian Title Group, Inc., No. 12-21890 (S.D. Fla. Sept. 17, 2013) (order denying defendant’s motion for summary judgment)
  • Closing Agent: allegation that closing agent prepared inaccurate HUD-1 as to borrower’s deposit and that lender would not have closed transaction had it know of inaccuracy sufficient to survive summary judgment on breach of contract – FDIC-R v. Floridian Title Group, Inc., No. 12-21890 (S.D. Fla. Sept. 17, 2013) (order denying defendant’s motion for summary judgment)
  • Closing Agent: allegation that closing agent failed to disclose non-arm’s-length nature of transaction sufficient to survive summary judgment on breach of fiduciary duty – FDIC-R v. Floridian Title Group, Inc., No. 12-21890 (S.D. Fla.  Sept. 17, 2013) (order denying defendant’s motion for summary judgment)
  • Closing Agent: closing agent who fails to present evidence that lender could have discovered non-arm’s length nature of transaction not entitled to summary judgment on negligent misrepresentation claim – FDIC-R v. Floridian Title Group, Inc., No. 12-21890 (S.D. Fla. Sept. 17, 2013) (order denying defendant’s motion for summary judgment)
  • Conspiracy: there is no cause of action for conspiracy to breach a title insurance policy – Merritt v. Mozilo, No. 037414 (Cal. App. Sept. 13, 2013) (affirming judgment)
  • Exceptions: insurer not liable to borrowers under owner’s policy for recording MERS deed of trust signed by borrowers where deed of trust excepted in Schedule B – Merritt v. Mozilo, No. 037414 (Cal. App. Sept. 13, 2013) (affirming judgment)
  • Exclusions: exclusion for governmental regulations precluded cause of action for breach of title insurance policy based on Master Plan (zoning) – Sonnett v. First Am. Title Ins. Co., No. 12-0237 (Wyo. Sept. 13, 2013) (affirming summary judgment)
  • Negligence: title insurer does not have tort duty to search and disclose any reasonably discoverable defects and encumbrances of title unless that duty is contained in title insurance contract – Sonnett v. First Am. Title Ins. Co., No. 12-0237 (Wyo. Sept. 13, 2013) (affirming summary judgment)
  • Breach of Policy: cause of action for breach of policy cannot be plausible where insured has yet to suffer a covered loss and damages are speculative – Bank of Am. v. Martin, Case No. 12-cv-544 (M.D. Pa. Sept. 12, 2013) (affirming motion to dismiss without prejudice) [opinion not publicly available]
  • Slander of Title: under Florida law, lender with mortgage on property not in title to property and lacks standing to bring action for slander of title – Kahama VI v. HJH, No. 8:11-cv-2029 (M.D. Fla. Sept. 12, 2013) (granting motion to dismiss)
  • Fiduciary Duty: under Florida law there is no fiduciary relationship between insurer and insured – Kahama VI v. HJH, No. 8:11-cv-2029 (M.D. Fla. Sept. 12, 2013) (granting motion to dismiss)