Real Property, Financial Services & Title Insurance Case Law Update: Week Ending January 10, 2014

I. FLORIDA STATE CASES - ILAN NIEUCHOWICZ

  • Jurisdiction: court violated jurisdictional principle of priority when it ordered disbursement of sales proceeds that were already the subject of declaratory judgment action in another county -- JP Morgan Chase Bank, N.A. v Estate of Neu, No. 4D13-2058 (Fla. 4th DCA January 8, 2014) (reversed and remanded)
  • Sanctions: although competent, substantial evidence supported sanctions award against insured who brought bad faith action against insurer for denying coverage and refusing to finance appeal of determination that insured had created its own lack of access, order was technically deficient because it did not expressly contain finding of frivolity – Palm Beach Polo Holdings, Inc. v. Stewart Title Guar. Co., Nos. 4D11-4660 & 12-231  (Fla. 4th DCA Jan. 8, 2014) (reversing in par)
  • Summary Judgment: summary judgment in favor of lender reversed where based on evidence (copies of original note and mortgage) filed and served on the borrower less than twenty days before hearing, in violation of Rules 1.510(c) and (e), Fla. R. Civ. P. -- Viola v U.S. Bank N.A., No. 4D11-2719 (Fla. 4th DCA January 8, 2014) (reversed and remanded)

II. 11TH CIRCUIT CASES – LAUREN SEMBLER

  • Assessments: individualized charges such as interest, late fees, attorneys’ fees, and collection costs do not fall within categories of common expenses or regular periodic or special assessments and therefore are not recoverable by condominium or homeowners associations from first mortgagees under 718.116(1) or 720.3085(2) – U.S. v. Forest Hill Gardens East Condo. Ass’n, Inc., No. 13-80513-CV (S.D. Fla. Jan. 3, 2014) (order granting partial summary judgment)
  • FDCPA: debt collector violated FDCPA where it charged debtor a collection fee based on a percentage of the principal owed rather than the actual cost of collection - Bradley v. Franklin Collection Service, Inc., No. 13-12276 (11th Cir. Jan. 2, 2014) (affirming summary judgment in part and reversing in part)

III. TITLE INSURANCE CASES - CHRIS SMART

  • Reservation of Rights: affirming award against insured for disgorgement of fees paid by title insurer in prosecuting claim to establish access to a parcel where lack of access had been created by the insured – Palm Beach Polo Holdings, Inc. v. Stewart Title Guar. Co., Case No.  (Fla. 4th DCA Jan. 8, 2014) (reversing in part)
  • Sanctions: although competent, substantial evidence supported sanctions award against insured who brought bad faith action against insurer for denying coverage and refusing to finance appeal of nonjury trial determination that insured had created its own lack of access, order was technically deficient in that it did not expressly contain finding of frivolity – Palm Beach Polo Holdings, Inc. v. Stewart Title Guar. Co., Nos. 4D11-4660 & 12-231  (Fla. 4th DCA Jan. 8, 2014) (reversing in part)
  • Title Agent: title agent does not owe fiduciary duty to one who is not party to escrow at time of alleged misconduct of agent – Silver Springs Oasis, LLC v. Lawyers Title of Arizona, Inc., No. 12-0860 (Az App. Jan. 7, 2014) (affirming summary judgment)
  • Exclusion 3(a): determining exclusion to be ambiguous because susceptible of more than one meaning (deliberate act that happens to cause the defect and deliberate act intended to bring about the defect) and interpreting it in favor of the insured and finding the exclusion not to apply where the negligent act of the insured creates the defect – First Citizens Bank & Trust Co. v. Stewart Title Guar. Co., No. 10-8064 (Colo. App. Jan. 2, 2014) (affirmed in part and reversed in part)
  • Limitation 8(b): limitation applies only where title defect is in dispute and does not apply where insurer concedes insured’s title is defective – First Citizens Bank & Trust Co. v. Stewart Title Guar. Co., No. 10-8064 (Colo. App. Jan. 2, 2014) (affirmed in part and reversed in part)