Real Property, Financial Services & Title Insurance Case Law Update: December 2013

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I. FLORIDA STATE CASES – JOURDAN HAYNES

  • Homeowners Association: court may consult references commonly relied upon to supply accepted meanings of words not defined in agreement – The Grove at Harbor Hills Homeowners v. Harbor Hills Dev., L.P., No. 5D12-4542 (Fla. 5th DCA Dec. 13, 2013) (affirmed in part; reversed in part; remanded)
  • Default by Court: default by court improper under Fla. R. Civ. P. 1.500 where defendant’s answer, athough not filed within time required by court order, was served prior to entry of default – Thompson v. Hancock Bank, No. 5D13-1828 (Fla. 5th DCA Dec. 13, 2013) (reversed and remanded)
  • Clerk’s Default: clerk’s default improper where verification of service of process not sworn and notarized as required by Fla. Stat. § 48.194 – Chigurupati v. Progressive Am. Ins. Co., No. 4D13-2363 (Fla. 4th DCA Dec. 11, 2013) (affirmed in part and reversed in part)

II. 11TH CIRCUIT CASES – LAUREN SEMBLER

  • TILA: TILA violation insufficient grounds to quiet title to property – Altier v. Fed. Nat’l Mortgage Ass’n, No. 1:13-cv-00164-MW-GRJ (N.D. Fla. Dec. 6, 2013) (order accepting and adopting magistrate’s report and recommendation)
  • Mortgage: separation of note and mortgage does not invalidate mortgage – Altier v. Fed. Nat’l Mortgage Ass’n, No. 1:13-cv-00164-MW-GRJ (N.D. Fla. Dec. 6, 2013) (order accepting and adopting magistrate’s report and recommendation)

III. TITLE INSURANCE CASES - CHRIS SMART

  • Value of Insured Title: unsworn appraisal insufficient to establish value of title and extent of insurer’s liability – BX Third Ave. Partners, LLC v. Fidelity Nat’s Title Ins. Co., No. 10577 (N.Y.  Dec. 5, 2013) (summary judgment affirmed  in part reversed in part)
  • Declaratory Judgment: insurer’s claim for declaration as to coverage and claim for costs of defending foreclosure action subject to dismissal where insurer failed to submit evidence that it would not have issued title policy in question but for insured’s affidavit representing there were  no tenants on the premises  – BX Third Ave. Partners, LLC v. Fidelity Nat’l Title Ins. Co., No. 10577 (N.Y.  Dec. 5, 2013) (summary judgment affirmed  in part reversed in part)
  • Reservation of Rights: insurer’s claim for costs of defending foreclosure action subject to dismissal where insurer defended action without reservation of rights  – BX Third Ave. Partners, LLC v. Fidelity Nat’l Title Ins. Co., No. 10577 (N.Y.  Dec. 5, 2013) (summary judgment affirmed  in part reversed in part)
  • E&O Policy: agent’s answer “no” to question on insurance application whether aware of any circumstances that might give rise to professional liability false despite agent’s arguments that its admitted participation in mortgage fraud was a criminal act that would not give rise to professional liability – Zurich Am. Ins. Co. v. Diamond Title of Sarasota, Inc., No. 8:10-cv-383-T-30 (M.D. Fla. Dec. 4, 2013) (order granting motion for summary judgment rescinding policy)
  • E&O Policy: agent’s misrepresentation on application need not be intentional to void coverage – Zurich Am. Ins. Co. v. Diamond Title of Sarasota, Inc., No. 8:10-cv-383-T-30 (M.D. Fla. Dec. 4, 2013) (order granting motion for summary judgment and rescinding policy)
  • Escrow Agent: where escrow agent’s instructions did not evidence clear and unequivocal intention to indemnify escrow agent from its own negligence, escrow agent not entitled to recover fees expended in defending such an action – Fidelity Nat’l Title Ins. Co. v. Port Orchard First Ltd. P’ship, No. 43873-9 (Wash. App. Dec. 3, 2013) (affirming dismissal of claims)

 

Topics:  Homeowners' Association, Title Insurance

Published In: Civil Procedure Updates, General Business Updates, Finance & Banking Updates, Insurance Updates, Residential Real Estate Updates

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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