Real Property, Financial Services & Title Insurance Case Law Update: Week Ending October 15, 2013

by Carlton Fields
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I. FLORIDA STATE CASES – SASHA FUNK GRANAI

  • Foreclosure: promissory notes self-authenticating and signatures thereto presumed authentic and authorized absent evidence of forgery or lack of authorization - Bennett v. Deutsche Bank, No. 4D12-2471 (Fla. 4th DCA Oct. 9, 2013) (foreclosure judgment affirmed)
  • Foreclosure: holders of negotiable instruments endorsed in blank have standing to foreclose, regardless of instruments’ ownership - Wells Fargo v. Morcom, No. 5D11-4089 (Fla. 5th DCA Oct. 11, 2013) (reversed and remanded) [Congratulations to Carlton Fields attorneys Michael Winston, Dean Morande and Donna Eng, who represented Wells Fargo in this appeal]

II. 11TH CIRCUIT CASES - JIN LIU

  • Tenants by Entirety: in absence of fraud, deed conveying 2% undivided interest to wife and husband created tenancy by entirety in such interest even though that phrase not used in deed -- Roberts-Dude v. JP Morgan Chase Bank, N.A., No. 13–CV–80240–ROSENBAUM (S.D. Fla. Sept. 25, 2013) (affirming Bankruptcy Court’s order)

III. TITLE INSURANCE CASES - CHRIS SMART

  • CPL: CPL claim deemed retained by FDIC-R even though note and mortgage and corresponding title insurance policy conveyed to third-party – FDIC-R (Bankunited) v. Property Transfer Servs., Inc., No. 12-80533 (S.D. Fla. Oct. 7, 2013) (opinion and order on trial)
  • CPL: FDIC-R deemed to have reserves CPL rights pursuant to purchase and assumption agreement – FDIC-R (Bankunited) v. Property Transfer Servs., Inc., No. 12-80533 (S.D. Fla. Oct. 7, 2013) (opinion and order on trial)
  • CPL: once claimant obtains knowledge of specific facts giving rise to claim for loss, it must promptly give notice within 90 days – FDIC-R (Bankunited) v. Property Transfer Servs., Inc., No. 12-80533 (S.D. Fla. Oct. 7, 2013) (opinion and order on trial)
  • CPL: false certification on HUD that borrower brought cash to close deemed to violate lender’s closing instructions that preclude credits to borrower and call for all closing documents to be properly prepared and executed – FDIC-R (Bankunited) v. Property Transfer Servs., Inc., No. 12-80533 (S.D. Fla. Oct. 7, 2013) (opinion and order on trial)
  • CPL: where lender does not receive a bona fide mortgagor, closing agent’s failure to collect cash to close deemed to affect enforceability of lien – FDIC-R (Bankunited) v. Property Transfer Servs., Inc., No. 12-80533 (S.D. Fla. Oct. 7, 2013) (opinion and order on trial)
  • CPL: agent who knowingly signs off on false HUD deemed to have participated in fraud or dishonesty for purposes of CPL claim – FDIC-R (Bankunited) v. Property Transfer Servs., Inc., No. 12-80533 (S.D. Fla. Oct. 7, 2013) (opinion and order on trial)
  • Reformation: there is a strong presumption that a title insurance policy reflects the parties intent and, to reform it, there must be clear and convincing evidence of a mutual mistake and a prior agreement to which the policy does not conform – Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257 (S.D. Fla. Sept. 18, 2013) (verdict and order following non-jury trial)
  • Duty to Defend: if allegations are partially within and outside coverage or partially within an exclusion, insurer must defend insured against all claims and defenses, even those not within scope of coverage – Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257 (S.D. Fla. Sept. 18, 2013) (verdict and order following non-jury trial)
  • Duty to Defend: where insurer refuses to defend, it transfers the power to defend to the insured and forfeits any right to control the defense – Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257 (S.D. Fla. Sept. 18, 2013) (verdict and order following non-jury trial)
  • Coverage: insured does not bear burden to prove commitment properly issued with a jacket – Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257 (S.D. Fla. Sept. 18, 2013) (verdict and order following non-jury trial)
  • Coverage: insurer may not take advantage of failure of a condition precedent, such as failure to issue a commitment with a jacket, caused by its own agent – Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257 (S.D. Fla. Sept. 18, 2013) (verdict and order following non-jury trial)
  • Exclusion 3(a): insured who does not have control over party preparing and recording an instrument cannot be deemed to have “created” or “suffered” a defect resulting from such agreement within meaning of exclusion – Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257 (S.D. Fla. Sept. 18, 2013) (verdict and order following non-jury trial)
  • Exclusion 3(a): insured’s mere awareness of density agreement purporting to subordinate lien of its mortgage does not mean insured accepted or “agreed” to second position lien within meaning of exclusion – Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257 (S.D. Fla. Sept. 18, 2013) (verdict and order following non-jury trial)
  • Exclusion 3(a): “agreed to” within meaning of exclusion requires a contract – Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257 (S.D. Fla. Sept. 18, 2013) (verdict and order following non-jury trial)
  • Duty to Cooperate: where insurer declines coverage, insured under no duty to cooperate – Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257 (S.D. Fla. Sept. 18, 2013) (verdict and order following non-jury trial)
  • Coverage Defense: insurer’s own violation of insurance statute and rule not a defense to coverage  – Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257 (S.D. Fla. Sept. 18, 2013) (verdict and order following non-jury trial)

 

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