Real Property, Financial Services & Title Insurance Update

by Carlton Fields
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REAL PROPERTY UPDATE

  • Easements: trial court erred in denying statutory easement or “way of necessity” where owners established all elements pursuant to section 704.01(2), Fla. Stat. – Messer v. Sanders, No. 1D13-3084 (Fla. 1st DCA July 9, 2014) (reversed and remanded)
  • Costs: trial court erred in awarding expert witness costs where witness failed to present evidence regarding expert costs and where witness who testified not competent to testify as to expert costs because he was not “a qualified expert in the same field” – Oak Square Joint Venture v. U.S. Bank National Association, No. 1D13-4232/1D13-4473 (Fla. 1st DCA July 7, 2014) (affirmed in part, reversed in part)
  • Foreclosure: final summary judgment reversed where genuine issues of material fact remained concerning standing to foreclose and compliance with condition precedent in paragraph 22 of mortgage – Olivera v. Bank of America, No. 2D13-629 (Fla. 2d DCA July 11, 2014) (reversed and remanded)
  • Foreclosure: final summary judgment reversed where undated endorsement, with photocopy of unendorsed note, and other affidavits failed to prove plaintiff was owner or holder of note at time complaint filed – LaFrance v. US Bank National Association, No. 4D13-102 (Fla. 4th DCA July 9, 2014) (reversed and remanded)
  • Riparian Rights: owners of land bordering on navigable waters have common law right to build on submerged lands, whether owned by the State or privately held, for purposes of accessing water – 5F, LLC v. Dressing, Case No.  2D13-2793 (Fla. 2d DCA July 16, 2014) (affirmed)
  • Foreclosure: trial court authorized to enter final judgment of foreclosure after borrower failed to make payments during pendency of foreclosure action where order entered pursuant to section 702.10, Fla. Stat., stated that an immediate judgment would be entered without a hearing if plaintiff filed an affidavit that borrower failed to timely make payment – We Help Community Development Corp. v Ciras, LLC, Case No. 4D11-1437 (Fla. 4th DCA July 16, 2014) (affirmed)
  • Jurisdiction Post-Judgment: when time to alter, modify, or vacate judgment of foreclosure lapsed and judgment only provided general reservation of jurisdiction, court lacked authority to determine amount of statutory assessments due association by plaintiff that purchased property at foreclosure sale because entitlement to assessments was not litigated or adjudicated and there was no specific reservation of jurisdiction to determine amount of assessments – Central Mortgage Company v Linda M. Callahan, et al., Case No. 3D13-1672 (Fla. 3d DCA July 16, 2014) (affirmed)

FINANCIAL SERVICES UPDATE

  • Attorneys’ Fees/Foreclosures: under section 702.065(2), Fla. Stat., where default foreclosure judgment entered against mortgagor and note or mortgage provides for reasonable attorney’s fees, it is not necessary for court to hold hearing or adjudge requested attorney’s fees to be reasonable if fees do not exceed 3% of principal amount owed at time of filing complaint – PNC Bank Nat’l Ass’n v. Radno Investment Holdings LLC, NO. 2:14-cv-149-FtM-29CM (M.D. Fla. July 10, 2014)

TITLE INSURANCE UPDATE

  • CPL: a closing protection letter is not title insurance and a claim for bad faith cannot be maintained under a closing protection letter, as bad faith claims must arise under a title insurance policy – Bankcorp Bank v. Lawyers Title Ins. Corp., Case No. 13-6103 (E.D. Pa. July 8, 2014) (opinion granting partial motion dismiss)
  • CPL: negligence claim barred where alleged breach of duty based on closing protection letter – Bankcorp Bank v. Lawyers Title Ins. Corp., Case No. 13-6103 (E.D. Pa. July 8, 2014) (opinion granting partial motion dismiss)
  • CPL: under Pennsylvania law, a negligence claim arising out of a closing protection letter is barred by economic loss doctrine – Bankcorp Bank v. Lawyers Title Ins. Corp., Case No. 13-6103 (E.D. Pa. July 8, 2014) (opinion granting partial motion dismiss)
  • Mortgage Fraud: affirming guilty plea, sentence, and $8 M restitution order as to individual who helped pay straw borrowers, changed the straw borrower’s addresses to so that mortgage loan payments could be made, and who herself was one of the straw borrowers – U.S. v. Rodriguez, Case No. 10-12065 (11th Cir. May 15, 2014) (affirming)
  • Subrogation: when insurer providing legal representation and coverage, insured and insurer are one party, acting in the name of insured, and benefits of coverage flow in favor of insured, not adverse party; thus, insurer’s payment of attorneys fees not barrier to recovery of such fees in litigation – Dillon v. Southern Management Corp. Retirement Trust, Case No. 20120145 (Utah May 13, 2014) (affirming summary judgment on entitlement to fees)
  • Exclusion 3(a): lender’s claim under policy not necessarily created, suffered, assumed or agreed by lender because of imputed knowledge that closing agent attorney recorded mortgage in superior position to its insured mortgage – First American Title Ins. Co. v. DJ Mortgage, LLC, Case No. A14A0545 (Ga. App. July 14, 2014)
  • Discovery: title insurer’s privilege log sufficiently described documents by including date, document type, author, recipient, and subject matter for each and, thus, made out prima facie case of privilege for the documents – CH Properties, Inc. v. First American Title, Ins. Co., Case No. 3:13-cv-01354 (D. Puerto Rico July 2, 2014) (memo and order on motion to compel)
  • Discovery: title insurer’s communications with independent agent regarding issuance of policies, endorsements, and premium deemed not to attorney-client privileged – CH Properties, Inc. v. First American Title, Ins. Co., Case No. 3:13-cv-01354 (D. Puerto Rico July 2, 2014) (memo and order on motion to compel)
  • Discovery: summary, timeline, notes, and marginal notations prepared by counsel for title insurer after denial of claim deemed work product protected – CH Properties, Inc. v. First American Title, Ins. Co., Case No. 3:13-cv-01354 (D. Puerto Rico July 2, 2014) (memo and order on motion to compel)

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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