Real Property, Financial Services & Title Insurance Case Law Update: Weeks Ending March 14 & March 21, 2014

by Carlton Fields
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I. FLORIDA STATE CASES – SCOTT FEATHER & JOURDAN HAYNES

  • Summary Judgment: reversal of summary final judgment of foreclosure because of disputed issues of fact concerning amount of rents received from property that should have been credited to outstanding debt – Synovus Bank v. Walker, No. 1D12-5176 (Fla. 1st DCA Mar. 14, 2014) (reversed and remanded for further proceedings)
  • Verification: loan servicer’s verification of foreclosure complaint on behalf of foreclosure plaintiff need not be accompanied by evidence documenting servicer’s authority to sign – Deutsche Bank Nat'l Trust Co., as Trustee v. Plageman, No. 2D12-5974 (Fla. 2d DCA Mar. 12, 2014) (reversing dismissal of second amended complaint)
  • Venue Provision: party to stipulated settlement agreement, which settled previous foreclosure action, entitled to enforce mandatory venue provision contained in that agreement in subsequent litigation – EverBank v. Atlantic Hospitality of Fla., LLC, No. 3D13-2619 (Fla. 3d DCA Mar. 12, 2014) (reversing portion of order refusing to enforce venue provision but affirming in all other respects)
  • Service of Process: defect in mortgagor’s name does not vitiate service of process that was effectuated on correct mortgagor – Popescu v. JP Morgan Chase Bank, NA, No. 4D13-1882 (Fla. 4th DCA Mar. 12, 2014) (affirming order denying motion to dismiss for insufficiency of service of process)
  • Case at Issue: foreclosure trial improper because case was not at issue – Lurtz v. The Bank of New York Mellon, No. 4D13-2251 (Fla. 4th DCA Mar. 12, 2014) (reversing and remanding for new trial in compliance with Rule 1.440(a))
  • Breach of Policy Provisions: determination of whether insurer was prejudiced by insured’s alleged breach of pertinent policy provisions was appropriate – Hamilton v. State Farm Fla. Ins. Co., No. 5D12-3733 (Fla. 5th DCA Mar. 14, 2014) (reversed and remanded)
  • Quiet Title: affirming dismissal of mortgagor’s quiet title action against lenders and affirming sanctions award against mortgagor and her counsel for frivolous claim – Badgley v. SunTrust Mortgage, Inc., 5D13-2500 (Fla. 5th DCA Mar. 14, 2014) (affirming dismissal)
  • Property Tax: lessee can have equitable ownership, for purposes of ad valorem taxation, of improvements on leasehold although lessee does not have perpetual lease or right to purchase for nominal value at end of lease - 1108 Ariola LLC v. Jones, No. SC11-2231 (Fla.  March 20, 2014) (Fla. 1st DCA decision approved)
  • Property Tax: leaseholders under 99-year renewable leases granted by county are equitable owners of real property and may be taxed as owner if lessee has all benefits and obligations of ownership despite not having possession of legal title - Accardo v. Brown, No. SC11-1445 (Fla.  Mar. 20, 2014) (Fla. 1st DCA decision approved)
  • Foreclosure/Notice: sufficient notice provided to mortgagor under Paragraph 22 of mortgage, by advising mortgagor that holder of note could institute “foreclosure proceedings” if default wa not cured and that he “may” have right to reinstate mortgage after acceleration – U.S. Bank National Association, as Trustee v. Busquets, No. 2D13-280 (Fla. 2d DCA Mar. 21, 2014) (reversed and remanded)
  • Landlord/Tenant: failure to comply with contractual condition precedent of lease’s default notice requirement results in judgment for tenant – Miami Fourth, LLC v. GC Lounge, LLC, No. 3D13-2311 (Fla. 3d DCA Mar. 19, 2014) (affirmed in part and vacated in part)
  • Assessments: purchaser of property acquired by tax deed sale not liable to condominium association for unpaid assessments accrued prior to issuance of tax deed – A to Z Properties Inc., v. Fairway Palms II Condo. Assoc. Inc., (Fla. 4th DCA Mar. 19, 2014) (reversed and remanded)

II. 11TH CIRCUIT CASES - JIN LIU & LAUREN SEMBLER

  • Promissory Note: bank without possession of valid promissory note may nevertheless enforce it if debt neither satisfied nor intentionally discharged -- Smith v. Bank of America, N.A., No. 2:11-cv-676-FtM-29DNF (M.D. Fla. Mar. 6, 2014) (denying cross-motions for summary judgment)
  • TILA: plain language of Section 1641 limits civil actions under TILA against assignees to those in which violation apparent on face of document generated in connection with origination of loan - Alaimo v. HSBC Mortgage Services, Inc., No. 0:13-cv-62437-RNS (S.D. Fla. March 10, 2014) (granting motion to dismiss)

III. TITLE INSURANCE CASES - CHRIS SMART & ILAN NIEUCHOWICZ

  • Evidence: where insurer denies claim of lack of access based on alternative access, insurer (i) not estopped from raising alternative access as defense at trial, (ii) has standing to raise alternative access as defense even though it does not have ownership interest in property that would benefit from alternative access, and (iii) not precluded from raising alternative access as defense merely because owners of alternative access property not parties to action – Guenther v. Old Republic National Title Ins. Co., No. 1:12-cv-237 (D. Idaho  Mar. 10, 2014) (order on motion in limine)
  • Class Action: under Pennsylvania’s unfair and deceptive trade practices act, nondisclosure of discounted rate not actionable absent fiduciary obligation to disclose – Slapikas v. First American Title Ins. Co., No. 06-0084 (W.D. Pa. Mar. 7, 2014) (memorandum opinion granting motions to decertify and for summary judgment)
  • Class Action: where plaintiff did not review HUD and concerned only with interest rate and total cost to refinance, plaintiff failed to show he justifiably relied on insurer charging correct rate – Slapikas v. First American Title Ins. Co., No. 06-0084 (W.D. Pa. Mar. 7, 2014) (memorandum opinion granting motions to decertify and for summary judgment)
  • Escrow Agent: escrow agent not liable to lender of record for failure to follow escrow agreement between lender’s borrower and seller – Jafari v. FDIC, No. 12-cv-2982 (S.D. Cal. Mar. 4, 2014) (order granting motion to dismiss)
  • Regulatory: insurer violated Indiana rate statute, unsafe business practices statute, and gross premium tax statute by implementing remittance program that did not require any direct correlation between risk undertaken and cost charged for policy – Commonwealth Land Title Ins. Co. v. Robertson, No. 49A04-1302-PL-84 (Ind. Ct. App. Mar. 4, 2014) (affirming trial court order affirming administrative order)
  • Title Insurance: a claim for breach of title insurance policy must include specific factual allegations concerning the actions that triggered coverage under policy.  Mortazavi v. Federal Ins. Co., No. 13cv3141-GPC(BGS) (S.D. Cal. Mar. 11, 2014) (granting in part and denying in part motions to dismiss and denying motion to strike)
  • Incorporation by Reference Doctrine: trial court may consider contents of documents relied upon by plaintiff in complaint on motion to dismiss so long as authenticity of the documents not contested.  Mortazavi v. Federal Ins. Co., No. 13cv3141-GPC(BGS) (S.D. Cal. Mar. 11, 2014) (granting in part and denying in part motions to dismiss and denying motion to strike)
  • Duty to Defend: where plain language of title insurance policy appears to foreclose duty to defend, plaintiff must allege sufficient facts to support existence of such duty. Mortazavi v. Federal Ins. Co., No. 13cv3141-GPC(BGS) (S.D. Cal. Mar. 11, 2014) (granting in part and denying in part motions to dismiss and denying motion to strike)
  • Agency: title insurance company could not introduce evidence on appeal to dispute trial court’s finding that notary public was its agent and title insurance company was therefore liable for notary’s negligence in notarizing signatures on fraudulent home mortgage loans. Michaels v. First USA Title, LLC, No. A13-0757 (Minn. Ct. App. Mar. 17, 2014) (judgment affirmed)

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Carlton Fields
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