REAL PROPERTY UPDATE

• Foreclosure: reservation of jurisdiction in final judgment to determine amount of attorneys’ fees renders that portion of judgment non-final and non-appealable – BAC Home Loans Servicing LP v. Ridgway, No. 1D13-3853 (Fla. 1st DCA June 25, 2014) (affirming in part, dismissing in part)
• Foreclosure: trial court entitled to presumption of correctness in entry of final judgment of foreclosure where transcript of proceeding not available for review – Muhammad v. BAC Home Loans Servicing, LP, No. 4D13-1580 (Fla. 4th DCA June 25, 2014) (affirming final judgment)
• Foreclosure: accelerated mortgage remains enforceable after voluntary dismissal of foreclosure action and may be accelerated again based upon different default less than five years old – Evergrene Partners, Inc. v. Citibank, N.A., No. 4D13-2236 (Fla. 4th DCA June 25, 2014) (affirming dismissal of borrower’s complaint to cancel mortgages)
• Foreclosure:  court abused discretion by involuntarily dismissing foreclosure action without prejudice based on bank’s failure to comply with court’s Uniform Order Setting Cause for Non-Jury Trial and Trial Instructions where case not properly at issue, parties had requested continuance that would not have prejudiced either party, and bank counsel’s failure to timely serve Uniform Order was “honest error” – Ocean Bank v. Garcia-Villalta, No. 3D13-461 (Fla. 3d DCA July 2, 2014)  (remanding for reinstatement of foreclosure action)
• Foreclosure/Attorneys’ Fees:  evidence insufficient to support award of attorneys’ fees and costs where affidavits of condominium association’s attorney and fees expert not introduced into evidence and no testimony of expert or timekeeping attorneys at trial – Diwakar v. Montecito Palm Beach Condo. Ass’n, No. 4D13-915 (Fla. 4th DCA July 2, 2014) (remanding for additional evidence on attorneys’ fees).

FINANCIAL SERVICES UPDATE

• TILA: TILA does not impose liability on servicers for failure by new owner of debt to notify borrower of transfer of ownership of debt within 30 days of transfer – Hayes v. U.S. Bank National Association, No. 13–80610–CIV (S.D. Fla. June 30, 2014) (granting motion to dismiss)
• FDCPA: Plaintiff failed to allege servicer was debt collector subject to FDCPA when plaintiff failed to allege mortgage in default at time of transfer to servicer for servicing – Hayes v. U.S. Bank National Association, No. 13–80610–CIV (S.D. Fla. June 30, 2014) (granting motion to dismiss)

TITLE INSURANCE UPDATE

• Statute of Limitations: statute of limitations on breach of title insurance policy claim begins to run on date of foreclosure sale when insured mortgage was divested because – contrary to the policy – it was junior to a prior lien – U.S. Bank Nat’l Ass’n v. First American Title Ins. Corp., No. 13-2594 (3rd Cir. June 20, 2014) (affirming judgment)
• Class Action: declining to vacate order granting summary judgment on claims under unfair trade practices act due to lack of justifiable reliance and decertifying class based on the predominance of individual questions – Slapikas v. First American Title Ins. Co., No. 06-0084 (W.D. Penn. June 19, 2014) (denying motion to vacate order and stay case)
• Legal Services: question whether attorney title insurance agent provides legal services in performing a search, forming an opinion of title, and issuing a commitment or policy certified to Alabama Supreme Court – Mississippi Valley Title Ins. Co. v. Thompson, No. 12-16188 (11th Cir. June 19, 2014) (certifying question)
• Bankruptcy: mortgage debt held nondischargable due to false representations where borrowers whose mortgage was unrecorded due to title company error sold the collateral, failed to disclose mortgage at closing, failed to pay off mortgage with proceeds of closing, and hid closing from mortgagee by making payments for three years – In re Krause, No. 13-B-15811 13-A-00901 (N.D. Ill. April 30, 2014) (memorandum opinion determining debt nondischargable)
• Right to Cure: delay of 20 months before filing quiet title action gives rise to strong inference that insurer failed to act with reasonable diligence in curing title – Granelli v. Chicago Title Ins. Co., No. 13-1024 (3rd Cir. June 17, 2014) (vacating order of summary judgment in part)
• Tort: PCA of final summary judgment holding that claim for negligent failure to disclose foreign bankruptcy after title insurance commitment issued barred by exculpatory language limiting claims to those based on and subject to terms of commitment – Land Management of South Florida Inc. v. Attorney’s Title Ins. Fund, Inc., No. 2D13-2641 (Fla. 2nd DCA June 27, 2014) (per curiam affirmed). Congratulations to Brian Koch, Alaine Greeberg, and William Clayton on this significant post-Tiara judgment and PCA
• Agent: principal of corporate agent who uses escrow funds of third parties for own personal obligations not entitled to hide behind corporate form and insurer injured by his actions may pierce corporate veil – Old Republic National Title Ins. Co. v. Home Abstract and Title Co., Inc., No. 1:12cv00171 (D. Utah June 27, 2014) (memorandum decision and order granting in part summary judgment)
• Continuation of Coverage: insured who voluntarily transfers property by quit claim deed to affiliate entity terminates coverage under title insurance policy – Durbano & Garn Invst. Co., LC v. First Am. Title Ins. Co., No. 20120943 (Utah App. June 26, 2014) (affirming summary judgment)
• CPL: title insurer seeks rehearing on whether defendant must have standing to assert defenses based on plaintiff’s purchase and assumption agreement and whether CPLs are tied to corresponding loans and title insurance policies – JPMorgan Chase Bank, N.A., v. First American Title Ins. Co., Case No. 12-2094; 13-1172 (6th Cir. June 9, 2014) (petition for panel rehearing and rehearing en banc)
• CPL: claim for breach of CPL independent of claim under related title policy – JPMorgan Chase Bank, N.A., v. FDIC, No. 12-2094; 13-1172 (6th Cir. July 2, 2014) (amended opinion affirming judgment)
• CPL: title insurer lacked standing to invoke court’s jurisdiction as to purchase and assumption agreement and challenge parties’ understanding of agreement – JPMorgan Chase Bank, N.A., v. FDIC, No. 12-2094; 13-1172 (6th Cir. July 2, 2014) (amended opinion affirming judgment)
• CPL: where proceeds from sale of property and damages award do not exceed amount original lender transferred to title agent for transaction, insurer not subject to double liability – JPMorgan Chase Bank, N.A., v. FDIC, No. 12-2094; 13-1172 (6th Cir. July 2, 2014) (amended opinion affirming judgment)
• CPL: claimant entitled to pre-complaint interest under Michigan law where damages are liquidated – JPMorgan Chase Bank, N.A., v. FDIC, No. 12-2094; 13-1172 (6th Cir. July 2, 2014) (amended opinion affirming judgment)
• CPL: evidence of inconsistent position taken by claimant in pleadings in other cases regarding ownership of CPL submitted with Rule 60(b)(2) motion did not call into question claimant’s position that it owned the CPL in this case – JPMorgan Chase Bank, N.A., v. FDIC, No. 12-2094; 13-1172 (6th Cir. July 2, 2014) (amended opinion affirming judgment)

IN THE NEWS

Last fall the CFJB update reported on In re Colson, No. 09-51954 (S.D. Miss. Sept. 23, 2013), where the bankruptcy court held that a title agent’s obligations to its underwriter were non-dischargeable because the agent basically ran a Ponzi scheme by using funds from new closings to pay for prior transactions and failing to pay off prior lenders of record.  Recently, the Biloxi attorney who owned that title agency was sentenced to five-year prison term and ordered to pay more than $8 million in restitution. Congratulations to Robert Perry Jr. who testified at trial and Eric Appel who handled the claim.