Real Property Update

• Foreclosure / Surplus Funds: sections 45.032 and 45.033, Florida Statutes, create a rebuttable presumption that the owner of record of real property on the date of the filing of a lis pendens is entitled to surplus funds - 2017 Bell Ranch Residential Land Trust v. Burrill, No. 2D17-4871 (Fla. 2d DCA Feb. 1, 2019) (reversed and remanded)
• Foreclosure / Statute of Limitations / Estoppel: trial court erred in granting summary judgment based on statute of limitations and estoppel defenses as missing payments occurred within five-year limitation period for filing a foreclosure action and after dismissal of initial foreclosure action - Nationstar Mortg., LLC v. LHF Hudson, LLC, No. 3D18-443 (Fla. 3d DCA Jan. 30, 2019) (reversed and remanded)
• Foreclosure / Dismissal: trial court erred in finding appellant was not properly represented by counsel as counsel filed a notice of appearance pursuant to Florida Rule of Judicial Administration 2.505(e)(3), appellant's prior counsel did not withdraw, and appellant was therefore represented by both law firms - U.S. Bank Nat'l Ass'n, Trustee v. Bell, No. 5D17-2983 (Fla. 5th DCA Feb. 1, 2019) (reversed and remanded)

Title Insurance Update

• Subrogation Rights: title insurer who is subrogated to foreclosure sale purchaser's rights is entitled to purchase price together with interest from the foreclosing lender as damages for breach of contract (foreclosure deed) where lender failed to comply with the terms of the mortgage in foreclosing, thus resulting in the foreclosure sale being voided - Stewart Title Guar. Co. v. Emigrant Mortg. Co., No. 1581-cv-06127 (Mass. App. Dec. 4, 2018) (memorandum of decision and order on cross summary judgment motions)
• Policy Liability: borrower lacks standing to bring a breach of lender's title insurance policy claim against the insurer, as the borrower is at most an incidental beneficiary to that policy - Watson v. Nebraska, No. 18-1978 (Neb. App. Jan. 17, 2019) (affirming district court's dismissal of claims)
• Agency Liability: title insurer may recover a loss under agency agreement for "negligent, willful or reckless conduct" of the agent even though negligence is not pled and notwithstanding Colorado's economic loss rule - Fidelity Nat'l Title Ins. Co. v. Pitkin Cnty. Title, Inc., No. 18-1128 (10th Cir. Jan. 23, 2019) (opinion and judgment affirming district court's judgment)