Real Property, Financial Services & Title Insurance Case Law Update: Week Ending July 19, 2013

by Carlton Fields


  • Litigation Privilege: litigation privilege, which protects actions taken in the course of and related to judicial proceedings from civil liability, applies to causes of action for abuse of process and malicious prosecution - Wolfe v. Foreman, No. 3D10-3055 (Fla. 3d DCA July 17, 2013) (affirming order granting motion for judgment on pleadings)
  • Inverse Condemnation: stabilization doctrine did not apply to prevent statute of limitations from beginning to run on inverse condemnation claim immediately after government’s initial road project caused flooding to plaintiff’s property because full extent of injury was known at that time and government’s subsequent promise to repair the problem did not amount to a taking by gradual process - Judkins v. Walton County, No. 1D12-4064 (Fla. 1st DCA July 15, 2013) (affirming summary judgment)


  • RESPA: lender had no obligation to respond to borrowers’ letters within 60 days because borrowers failed to establish letters were “qualified written requests” -- Echeverria v. BAC Home Loans Servicing, LP, Case No. 6:10-cv-01933-JA-DAB (11th Cir. July 18, 2013) (affirming granting of summary judgment)
  • RESPA: borrowers not entitled to actual damages for lender’s failure to provide timely notice of loan transfer because no pattern and practice of non-compliance -- Echeverria v. BAC Home Loans Servicing, LP, Case No. 6:10-cv-01933-JA-DAB (11th Cir. July 18, 2013) (affirming granting of summary judgment)
  • Lenders’ Liability/Intentional Infliction of Emotional Distress: lender’s alleged conduct of not providing borrowers with correct loan information, refusing to modify loan, losing papers and documents, and threatening foreclosure was “not so outrageous” as to support claim for intentional infliction of emotional distress -- Echeverria v. BAC Home Loans Servicing, LP, Case No. 6:10-cv-01933-JA-DAB (11th Cir. July 18, 2013) (affirming dismissal of plaintiff’s claim)
  • Lenders’ Liability/Negligent Infliction of Emotional Distress: borrowers’ negligent infliction of emotional distress claim against lender failed where no physical impact alleged and no exceptions to impact rule applied -- Echeverria v. BAC Home Loans Servicing, LP, Case No. 6:10-cv-01933-JA-DAB (11th Cir. July 18, 2013) (affirming dismissal of plaintiff’s claims)


  • Tort: title insurers and agencies do not owe insured duty to assess easement’s legal validity where easement is disclosed and excepted from coverage under policy – Windel v. Mat-Su Title Ins. Agency, Inc., Case No. S-13793 (Alaska July 13, 2013) (affirming summary judgment)
  • Class Action: under Pennsylvania rate manual, evidence of a prior policy is met where, within look-back period in chain title, there is either a recorded deed to a bona fide purchaser for value or an unsatisfied first mortgage to an institutional lender – Patterson v. Fidelity Nat’l Title Ins. Co., Case No.  03-021176 (Pa. Com. Pl. June 24, 2013) (opinion and order) [copy not publicly available]
  • Duty to Defend: title insurer does not have duty to defend borrower’s challenge to debt secured by insured mortgage based on allegation of predatory lending, even though mortgage lien would be extinguished if borrower prevails -- Deutsche Bank N.A. v. First American Title Ins. Co., Case No. 11265 (Mass. July 11, 2013) (affirming summary judgment)
  • Bankruptcy: title company and insurer reasonably relied on no-lien affidavit and debtor’s obligation to title company was thus not dischargeable – Stewart Title Guaranty Co. v. Roberts-Dude, Case No. 13-cv-80243 (S.D. Fla. July 11, 2013) (reversing Bankruptcy court’s granting final summary judgment)


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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