Real Property, Financial Services & Title Insurance Update: Weeks Ending November 14 & 21, 2014


  • Harris Act/Inverse Condemnation: dismissal was (1) improper as to landowners’ Harris Act claim because amendments to County’s land use plan were applied specifically to landowners’ property by its very terms, but (2) proper as to landowners’ inverse condemnation claim because it was untimely – Hussey v. Collier County, No. 2D11-1224 (Fla. 2d DCA Nov. 14, 2014) (affirmed in part, reversed in part, and remanded).
  • Partition of Property: affirming partial final summary judgment on partition of real property claim, and noting that on a proper motion, trial court had discretion to stay sale of partitioned property until merits determination reached on remaining claims – Amaya v. Vazquez, No. 3D14-860 (Fla. 3d DCA Nov. 12, 2014) (affirmed in part, dismissed in part, and remanded).
  • Property Transfer/Homestead Devise Restrictions: holding when homeowner transfers property to Qualified Personal Residence Trust pursuant to Fla. Stat. s. 732.4017 and property subsequently reverts back to homeowner’s estate because homeowner does not survive the term of the QPRT, a subsequent disposition of the property pursuant to homeowner’s will is a devise subject to homestead devise restrictions; however, wife waived her spousal homestead rights, and thus, devise of residence not in violation of homestead devise restrictions – Stone v. Stone, No. 4D11-4541 (Fla. 4th DCA Nov. 12, 2014) (affirming final summary judgment).
  • Foreclosure/Interest Due and Owing: bank failed to produce evidence at trial of changes in interest rate on adjustable rate note and therefore only entitled to recover lowest rate contained in note – Salauddin v. Bank of America, N.A., No. 4D13-2747 (Fla. 4th DCA Nov. 12, 2014) (reversed and remanded to calculate interest consistent with opinion).
  • Foreclosure/Summary Judgment: bank’s summary judgment motion failed to address affirmative defense concerning absence of legal description in mortgage and did not put borrower on notice of intention to seek reformation – Sample v. Wells Fargo Bank, N.A., No. 4D13-2883 (Fla. 4th DCA Nov. 12, 2014) (reversing final summary judgment and remanding).
  • Foreclosure/Service of Process: return of service for one defendant facially defective because process server did not state service attempted on corporation’s registered agent during requisite time period, nor did return of service have the information required under Fla. Stat. s. 48.081 – Empire Beauty Salon, Etc. v. Commercial Loan Solutions IV, LLC, No. 5D13-2238 (Fla. 5th DCA Nov. 14, 2014) (affirmed in part, reversed in part, and remanded).
  • Foreclosure/Constructive Service of Process: HOA’s service of process by publication ineffective because HOA’s search insufficient and affidavit of diligent search and inquiry was inaccurate – Martins v. The Oaks Master Property Owners Ass’n, Inc., No. 5D13-3852 (Fla. 5th DCA Nov. 14, 2014) (reversing and remanding).
  • Foreclosure/Summary Judgment: trial court properly granted summary judgment to lender on whether lender was required to give borrower notice of default and opportunity to cure before instituting suit because appellant lacked standing to challenge violation under mortgage as a non-party; however, summary judgment reversed on issue on amount of debt because evidence was inadmissible hearsay since lender failed to establish affiant was familiar with lender’s business practices or accuracy of its records – Clay Cnty. Land Trust v. JP Morgan Chase Bank, No. 1D14-1125 (Fla. 2d DCA Nov. 20, 2014) (affirmed in part, reversed in part, and remanded).
  • Foreclosure/Summary Judgment: trial court improperly granted final summary judgment of foreclosure to lender because lender failed to file evidence supporting motion at least 20 days before hearing on motion as required under Florida Rules of Civil Procedure – Suarez v. Space Coast Credit Union, No. 3D14-565 (Fla. 3d DCA Nov. 19, 2014) (reversed and remanded).
  • Foreclosure/Certificate of Sale: appeal of order overruling borrower’s objection to foreclosure sale dismissed after borrower failed to respond to appellate court’s order to show cause why appeal should not be dismissed for borrower’s failure to file objection to sale within 10 days after filing of certificate of sale as required by Fla. Stat. s. 45.031(5) – Conde v. Main Street Fund III, LLC, No. 12-44429 (Fla. 3d DCA Nov. 19, 2014) (dismissed).
  • Foreclosure/Summary Judgment: trial court properly granted summary judgment on lender’s foreclosure complaint because lender refuted borrower’s affirmative defenses and established that no disputed issues of material fact remained – Jelic v. Citimortgage, Inc., No. 4D13-2933 (Fla 4th DCA Nov. 19, 2014) (affirmed).
  • Sinkhole Loss/Right to Appraisal: homeowners did not waive their right to an appraisal by actively litigating sinkhole loss dispute but homeowners could not select their own attorney as a “disinterested” appraiser – Florida Ins. Guar. Ass’n v. Hanse, No. 5D13-4501 (Fla. 5th DCA Nov. 21, 2014) (affirmed in part, reversed in part, and remanded)



  • Spoliation of Evidence: title company and title insurer did not breach duty to preserve evidence by stripping, scanning and destroying hard copies of closing file where all documents were electronically preserved – IQ Holdings, Inc. v. Stewart Title Guaranty Co., No. 01-13-00952 (Tex. App. Nov. 20, 2014) (affirming summary judgment)
  • Exceptions: title insurer may except specific matters contained in a document by reference to the provisions of that document, and has no independent duty to recite the restraints contained in the document in detail – IQ Holdings, Inc. v. Stewart Title Guaranty Co., No. 01-13-00952 (Tex. App. Nov. 20, 2014) (affirming summary judgment)
  • Title Agent: title agent’s authority is limited to closing the transaction and does not extend to an investigation of title and the duty to obtain good title is limited to the protections provided by the title insurance policy – IQ Holdings, Inc. v. Stewart Title Guaranty Co., No. 01-13-00952 (Tex. App. Nov. 20, 2014) (affirming summary judgment)
  • Duty to Defend: title insurance indemnifies against losses incurred by reason of defects in title and specifically limits the duty to defend to claims within the policy’s coverage – Philadelphia Ind. Ins. Co. v. Chicago Title Ins. Co., No. 09-C-7063 (7th Cir. Nov. 13, 2014) (judgment reversed)
  • IRS Lien Priority: bank’s lien has priority over IRS lien only if, at the time the IRS files its lien, the bank has a recorded security interest – Susquehanna Bank v. USA/IRS, No. 13-2249 (4th Cir. Oct. 31, 2014) (affirmed)
  • IRS Lien Priority: bank’s equitable interest in title to collateral property, may have priority over IRS lien if bank’s interest is protected against subsequent judgment liens under state law at the time the IRS files it lien – Susquehanna Bank v. USA/IRS, No. 13-2249 (4th Cir. Oct. 31, 2014) (affirmed)
  • Prudential Standing: third-parties to purchase and assumption agreement between assuming bank and National Credit Union Administration lack prudential standing to impose their interpretation of it on the parties to the agreement who are in agreement to its meaning – Security Service FCU v. First Am. Mtg. Funding, LLC, No. 13-1133 (10th Cir. Nov. 4, 2014) (summary judgment reversed) (citing to JP Morgan Chase Bank, N.A. v. First Am. Title Ins. Co., 795 F. Supp. 2d 624 (E.D. Mich. 2011))
  • Lien Priority: an existing lender owes no duty to a subsequent lender and the borrower’s failure to close an existing HELOC account that was paid off resulting in the subsequent lender’s loss of priory – In re Residential Capital, LLC, No. 12-12020 (S.D.N.Y. Bk. Oct. 31, 2014)
  • Exclusions: recorded agreement limiting use of property is a “servitude” with the general exclusion for “any easements or servitudes appearing in the public record” – Pasha v. Commonwealth Land Title Ins. Co., No. 2013-ca-000848 (Ky. App. Oct. 31, 2014) (affirming summary judgment)
  • Exclusions: title insurer who raises on particular exclusion as basis for denial letter which also states that no other provision of the policy is waived is not precluded from defending suit on the basis of other exclusions – Pasha v. Commonwealth Land Title Ins. Co., No. 2013-ca-000848 (Ky. App. Oct. 31, 2104) (affirming summary judgment)
  • Duty to Cooperate: insured’s assumption and management of its own defense prior to settlement did not by that act alone on the facts presented breach the duty to cooperate – Breaux v. Cozy Cottages, LLC, No. 14-597 (La. App. Nov. 12, 2014)(affirming summary judgment)
  • Duty to Defend: insurer who had not yet cured title or paid policy limits was required to provide a defense to a covered claim – Breaux v. Cozy Cottages, LLC, No. 14-597 (La. App. Nov. 12, 2014)(affirming summary judgment)
  • Insured: named insured pursuant to schedule A of the title insurance policy remains an insured even though it has conveyed the note and mortgage to a third party – Colonial Mtg. Serv. Co. v. Commonwealth Land Title Ins. Co., No. 14-3807 (E.D. Penn. Nov. 14, 2014)(opinion on summary judgment)
  • Continuation of Coverage: where lender assigns insured note and mortgage with warranties and representations and agrees to repurchase the loan if those are false, it remains an insured under the title insurance policy even after the note and mortgage are conveyed – Colonial Mtg. Serv. Co. v. Commonwealth Land Title Ins. Co., No. 14-3807 (E.D. Penn. Nov. 14, 2014)(opinion on summary judgment)
  • Duty to Defend: title insurer is required to defend only and not non-covered claims – Colonial Mtg. Serv. Co. v. Commonwealth Land Title Ins. Co., No. 14-3807 (E.D. Penn. Nov. 14, 2014)(opinion on summary judgment)



Written by:

Carlton Fields

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