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

by Carlton Fields


  • Final Judgment: final judgment not final appealable order where related claim for breach of note remained – Centennial Bank v. NFP 1, LLC, No. 1D13-4516 (Fla. 1st DCA Dec. 5, 2013) (appeal dismissed)
  • Separation of Powers: courts lack jurisdiction to order enforcement of building and zoning codes on complaint filed by homeowners’ association against city – Detournay v. City of Coral Gables, No. 3D11-2012 (Fla. 3d DCA Dec. 4, 2013) (affirmed in part, reversed in part, and remanded)
  • Foreclosure: bank witness with no independent knowledge of loan could not properly authenticate subject note, mortgage, or acceleration letter to support foreclosure – Kelsey v. SunTrust Mortgage, Inc., No. 3D12-2994 (Fla. 3d DCA Dec. 4, 2013) (reversed and remanded)
  • Foreclosure: five-year statute of limitations began to run when county made written demand pursuant to reporting covenant in the mortgage – Broward County v. 8705 Hampshire Drive Condominium, Inc., No. 4D11-4730 (Fla. 4th DCA Dec. 4, 2013) (affirmed)


  • Default Judgment: default judgment entered when defendants failed to respond to complaint after proper service and complaint contained well-pleaded allegations of fact -- PNC Bank, N.A. v. DBAK Holdings, LLC, No. 2:13–cv–247–FtM–38UAM (M.D. Fla. Dec. 2, 2013) (granting final judgment)
  • Res Judicata: res judicata improperly applied to dismiss complaint in federal court because summary judgment of state court involving same parties and transaction was on appeal and thus not final -- CCB, LLC v. Banktrust, No. 13-12756 (11th Circ. Dec. 4, 2013) (vacating and remanding)


  • Exception: survey exception sufficient to preclude coverage for a trail encumbering the property, because survey contained notation about a trail traversing insured property and, even though exception could have been more specific, it was not ambiguous – A. Gugliotta Development Inc. v. First Am. Title Ins. Co. of N.Y., No. 2012-10841 (N.Y.  Dec. 4, 2013) (reversing denial of summary judgment)
  • Tort: title insurers do not provide binding representations as to the chain of title and have no duty to present an abstract on which others should be entitled to rely, and, as a result, claims against title insurers generally lie in contract – Johnsen & Allphin Props. v. First Am. Title Ins. Co., No. 2:12-cv-740 (D. Utah Dec. 2, 2013) (granting motion to dismiss)
  • Exclusion 3(a): at motion to dismiss stage and based on allegations of complaint, subsequent purchaser of loan cannot be said to have had “actual knowledge” of prior mortgage liens against property so as to trigger exclusion for coverage for those prior mortgage liens even though its predecessor lender had created the liens – Johnsen & Allphin Props. v. First Am. Title Ins. Co., No. 2:12-cv-740 (D. Utah Dec. 2, 2013) (denying motion to dismiss)
  • Policy Interpretation: where legal description in policy ambiguous, a court may consider insured’s objectively reasonable expectations as to coverage and does not err in considering whether a reasonable person in insured’s subjective position and with insured’s subjective knowledge would have reasonably expected coverage – Lee v. Fidelity Nat’l Title Ins. Co., No. A134169 (Cal. App. Nov. 27, 2013) (affirming judgment)


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Carlton Fields

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