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)

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