Real Property, Financial Services & Title Insurance Case Law Update: Weeks Ending February 21 And 28, 2014

by Carlton Fields


  • Relation-Back: amended complaint naming third-party defendant as defendant relates back to filing of third-party complaint where (a) third-party complaint had been filed prior to expiration of statute of limitations and (b) claims in amended complaint arose from same conduct, transaction, or occurrence as claims in third-party complaint - Caduceus Props., LLC v. Graney, No. SC12-1474 (Fla. Feb. 27, 2014) (clarifying certified conflict between Fla. 1st DCA and Fla. 5th DCA)
  • Default Final Judgment: default final judgment based on complaint that fails to state cause of action voidable, not void, and can be attacked only within 1 year of its entry – Condo. Ass’n of La Mer Estates, Inc., v. The Bank of New York Mellon Corp., No. 4D13-17 (Fla. 4th DCA Feb. 19, 2014) (reversed and remanded for reinstatement of final judgment)
  • Partition/Attorneys’ Fees: every party to partition action shall pay costs and attorneys' fees in proportion to party's interest, based on equitable principles as set forth in Fla. Stat. § 64.081 - Robinson v Barr, No.  2D12-6326 (Fla. 2d DCA February 28, 2014) (reversed and remanded)
  • Involuntary Dismissal: action should not have been dismissed under Fla. R. Civ. P. 1.420(e) because docket showed record activity in response to computer-generated “Notice of Lack of Prosecution” sufficient to satisfy the Rule’s bright-line test; moreover, the filed pleading demonstrated good cause why action should not be dismissed for lack of prosecution - Coronado Condominium Association, Inc. v. Jalud Realty, LLC, No. 3D13-1941 (Fla. 3d DCA February 26, 2014) (reversed and remanded)
  • Confidentiality Provision: plaintiffs breached confidentiality provision in settlement agreement prohibiting parties from "directly or indirectly" disclosing “any information” regarding the “existence or terms” of settlement by telling non-party daughter the case settled and they were happy with the result - Gulliver Schools, Inc. v. Snay, No. 3D13-1952 (Fla. 3d DCA February 26, 2014) (reversed)
  • Substitute Service: substitute service on non-resident pursuant to Fla. Stat. § 48.161 requires service on Secretary of State and delivery of copy of summons and complaint, together with evidence of service, "forthwith"; delivery 42 days after service on Secretary not "forthwith" and constituted improper service - Crystal Springs Partners, Ltd. v. Michael R. Band, P.A., No. 3D13-2872 (Fla. 3d DCA February 26, 2014) (reversed and remanded)


  • Foreclosure: foreclosing plaintiff’s summary judgment premature where original note not filed or provided to Court, and where certification required by Fla. Stat. § 702.015(b)(4), certifying plaintiff in possession of original note, not filed - PNC Bank Nat’l Ass’n v. Orchid Grp. Invests., LLC, No. 2:13-cv-12-FtM-38CM (M.D. Fla. Feb. 13, 2014) (denying plaintiff’s summary judgment)
  • Lender-Placed Insurance: borrower had standing as third party beneficiary to pursue breach-of-contract claim against insurer under lender-placed insurance policy where borrower owned property at time of loss and subsequent foreclosure of borrower did not fully discharge underlying debt -- Maria v. Balboa Insurance Co., No. 8:13-cv-1606-T-30AEP (M.D. Fla. Feb. 19, 2014) (denying defendant’s summary judgment)


  • E&O Coverage: insured closing agent who delivered seller’s funds to third party engaged in equity stripping scheme and not to seller (home owner) and charged its ordinary settlement fee, did not thereby itself “profit” or obtain an “advantage” from transaction and thus its claim was not excluded under personal-profit exclusion of policy – Cornerstone Title & Escrow, Inc. v. Evanston Ins. Co., No. 13-1318 (4th Cir. Feb. 19, 2014) (reversing and remanding summary judgment)
  • E&O Coverage: insured closing agent’s delivery of seller’s funds to third party engaged in equity stripping scheme instead of to seller (home owner), did not thereby “convert” those funds and thus its claim was not excluded under conversion exclusion of policy – Cornerstone Title & Escrow, Inc. v. Evanston Ins. Co., No. 13-1318 (4th Cir. Feb. 19, 2014) (reversing and remanding summary judgment)
  • E&O Coverage: where claims of underlying suit relate to two part transaction, one where closing agent made error and other where closing agent attempted to cover up error, and first transaction subject to policy’s prior act exclusion, then subsequent transaction also subject to that exclusion – Am. Guarantee & Liability Ins. Co. v. The Abram Law Group, LLC, No. 13-13134 (11th Cir. Feb. 14, 2014) (affirming judgment)
  • Escrow Agent Liability: bankruptcy of LandAmerica 1031 exchange company not foreseeable for purposes of awarding contract damages against escrow agent based on its closing on Monday instead of Friday – Ash v. N. Am. Title Ins. Co., No. YC059517 (Cal. App. Feb. 18, 2014) (reversing and remanding judgment after jury trial)
  • Escrow Agent Liability: jury should have been given instructions as to intervening and superseding cause of bankruptcy of LandAmerica 1031 exchange company on purchaser’s tort claims – Ash v. N. Am. Title Ins. Co., No. YC059517 (Cal. App. Feb. 18, 2014) (reversing and remanding judgment after jury trial)
  • Closing Agent Liability: borrower who accepted and retained benefits of inaccurate HUD and was, as a result, criminally convicted to 15 years and ordered to pay $1 million in restitution, broke causal chain between closing agent’s erroneous preparation of HUD and damages and borrower not entitled to compensation from closing agent – Anderson v. Preferred Title & Guar. Agency, Inc., No. 13AP-385 (Ohio App. Feb. 13, 2014) (affirming summary judgment)
  • Commitments: borrower who claimed he was damaged by a title insurance commitment that failed to disclose two judgments against his property, failed to state a cause of action against title insurance company for breach of contract, breach of fiduciary duty, breach implied covenant of good faith and fair dealing, fraud, and negligence because a title insurance commitment (i) is only an offer without the force of a contractual obligation and (ii) is not a representation of the condition of title – Edwards v. First Am. Title Ins. Co., No. 13-0163 (Ariz. App. Feb. 13, 2014) (affirming dismissal of complaint with prejudice)
  • Duty to Cure Title: where insured raises potential title issue based on name of grantor in a deed, refuses to accept insurer’s offer to indemnify and insure over the issue and his alleged damages are not result of third party’s adverse claim, policy does not require title insurer to take any action to cure purported defect – Castin LLC v. First Am. Title Ins. Co., No. 26907 (Ohio App. Feb. 12, 2014) (affirming summary judgment)
  • Escrow Agreements: where lender funds loan after closing agent sends lender draft of a written escrow agreement, funding can be construed as assent to draft escrow agreement and creates material issues of fact precluding summary judgment as to existence of oral escrow agreement – Doss & Assocs. v. First Am. Title Ins. Co., No. A13A0988 (Ga. App. Dec. 13, 2013) (opinion on rehearing)
  • Damages: where partial failure of title to property subject to lender’s insured mortgage lien, fact that lender receives title to other land valued in excess of original loan balance does not preclude claim against agent where lender’s damages arise from unpaid interest – Doss & Assocs. v. First Am. Title Ins. Co., No. A13A0988 (Ga. App. Dec. 13, 2013) (opinion on rehearing)
  • Policy Interpretation: reference in Section 7(a)(ii) to a reduction of amount of principal indebtedness by method in Section 9 for reduction in amount of insurance renders these provisions of lender’s title insurance policy too vague and uncertain to be enforced – Doss & Assocs. v. First Am. Title Ins. Co., No. A13A0988 (Ga. App. Dec. 13, 2013) (opinion on rehearing)
  • Bad Faith: where insured lender sues title insurer for bad faith before its actual monetary loss or damage has been fixed and fails to disclose its foreclosure sale to insurer, insurer cannon be held liable for bad faith damages – Doss & Assocs. v. First Am. Title Ins. Co., No. A13A0988 (Ga. App. Dec. 13, 2013) (opinion on rehearing)
  • FIRREA: FDIC-R’s claims against closing agent for breach of contract and negligence timely under FIRREA where breach of contract claim brought within 6 years and negligence claim brought within 3 years of date FDIC appointed as receiver - FDIC-R v. St. Louis Title, LLC, No. 4:13 CV 1078 RWS (E.D. Mo. Jan. 17, 2014) (denying motion to dismiss)
  • Breach of Closing Instructions: FDIC-R stated claim for breach of contract against closing agent based upon alleged breach of closing instructions - FDIC-R v. St. Louis Title, LLC, No. 4:13 CV 1078 RWS (E.D. Mo. Jan. 17, 2014) (denying motion to dismiss)
  • Negligence: FDIC-R stated claim for negligence against closing agent where FDIC-R alleged closing agent acted on behalf of lender and had duty not to disburse lender’s funds unless all requirements of closing instructions met - FDIC-R v. St. Louis Title, LLC, No. 4:13 CV 1078 RWS (E.D. Mo. Jan. 17, 2014) (denying motion to dismiss)

Written by:

Carlton Fields

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.