Real Property, Financial Services & Title Insurance Case Law Update

by Carlton Fields
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I. FLORIDA STATE CASES – JOURDAN HAYNES, ILAN NIEUCHOWICZ & SCOTT FEATHER

  • Conditions Precedent: summary judgment precluded by disputed issues of fact as to extent insured parties sufficiently complied with provisions of homeowners’ insurance policy – Solano v. State Farm Florida Insurance Co., No. 4D12-1198 (Fla. 4th DCA May 14, 2014) (reversed and remanded for further proceedings)
  • Mortgage Foreclosure/Lis Pendens: purchaser who took title to real property after lender filed suit to foreclose recorded first mortgage had constructive notice of mortgage and took title subject to same even though lender failed to record lis pendens; however, unless purchaser had actual knowledge of foreclosure, interest not foreclosed under facts at issue because not named and not otherwise eliminated under lis pendens statute and would have to be named to foreclose interest -- U.S. Bank National Association v. Bevans, No. 3D12-3445 (Fla. 3d DCA May 21, 2014) (reversed and remanded for further proceedings)
  • Sanctions: dismissal of foreclosure action as sanction for discovery violation improper absent specific finding concerning willfulness, responsibility, prejudice, and determination of whether lesser sanction might serve purpose -- Deutsche Bank Nat’l Trust Co. v. Parada, No. 3D13-643 (Fla. 3d DCA May 21, 2014) (reversed and remanded for further proceedings)
  • Indemnification Under Commercial Lease: landlord had no liability or duty to indemnify tenant in connection with slip and fall that occurred because pursuant to lease the sidewalk was a “site improvement” and part of “Premises” leased to tenant and lease required that tenant indemnify landlord for any claims arising from injury on “Premises” -- Hillstone Restaurant Group, Inc. v P.F. Chang’s China Bistro, Inc., Nos. 3D13-773 and 13-55 (Fla. 3d DCA May 21, 2014) (summary judgment reversed and remanded)
  • Litigation Privilege: litigation privilege barred nuisance and slander of title claims brought by buyer of real property against mortgage lender that voluntarily dismissed foreclosure action but did not bar buyer’s action to quiet title because such action was not an affirmative claim against lender for actions lender took in connection with court proceeding -- R.H. Ciccone Properties, Inc. v JP Morgan Chase Bank, N.A., No. 4D12-4254 (Fla. 4th DCA May 21, 2014) (affirmed in part, reversed in part, and remanded for further proceedings)
  • Foreclosure/Conditions Precedent: summary judgment of foreclosure improper because default letter attached to motion in support of summary judgment did not comply with acceleration notice requirements set forth in paragraph 22 of the mortgage -- Haberl v. 21st Mortgage Corp., No. 5D12-4839 (Fla. 5th DCA May 23, 2014) (reversed and remanded)
  • Code Enforcement Appeal: when appellate court considers circuit court’s ruling on appeal of an administrative order (second-tier certiorari), appellate court can only consider whether circuit court afforded procedural due process and applied correct law -- Bencivenga v Osceola County, Florida, No. 5D13-3309 (Fla. 5th DCA May 23, 2014) (petition for certiorari denied)
  • Standing to Foreclose: Trial court departed from essential requirements of law by requiring lender that held promissory note to also prove it owned the loan documents to establish standing – One West Bank, F.S.B. v. Bauer, No. 2D12-5393 (Fla. 2d DCA May 30, 2014) (granting petition and ordering reinstatement of foreclosure action)
  • Authentication: Foreclosure plaintiff failed to satisfy its burden at trial to prove amount of debt owed – Wolkoff v. American Home Mortgage Servicing, Inc., No. 2D12-6460 (Fla. 2d DCA May 30, 2014) (reversing entry of final judgment and remanding for entry of order of involuntary dismissal)
  • Necessary Parties to Foreclosure: Trial court erred in refusing to vacate judicial sale where final judgment of foreclosure was only entered against wife but property was owned by husband and wife as tenants by the entireties – Rocketrider Pictures, LLC v. BankUnited, No. 3D13-1470 (Fla. 3d DCA May 28, 2014) (reversing foreclosure judgment)
  • Standing to Foreclose: Assignee of note and mortgage after lawsuit was filed had standing to foreclose because original plaintiff/assignor owned the note and mortgage when it instituted lawsuit – Lewis v. JP Morgan Chase Bank, as Trustee, No. 4D13-1389 (Fla. 4th DCA May 28, 2014) (affirming foreclosure judgment)
  • Admissibility of Payment History Records: Loan payment history printout properly admitted as evidence under business records exception to hearsay – Cayea v. CitiMortgage, Inc., No. 4D13-1555 (Fla. 4th DCA May 28, 2014) (affirming final judgment)

II. 11TH CIRCUIT CASES – DANA BLUNT

  • Improper Foreclosure: causes of action alleging state court foreclosure judgment improper because obtained through forged assignment of mortgage barred as compulsory counterclaim to underlying foreclosure action and by Rooker-Feldman Doctrine – Valentine v. BAC Home Loans Servicing, LP, No. 8-14-CIV-652-EAK-MAP (M.D. Fla. May 7, 2014) (dismissing with prejudice)
  • HAMP: borrower cannot enforce HAMP agreement between lender and government and no cause of action exists for lender refusing to consider HAMP application – Embury v. Bank of America, No. 1: 13-cv-211-MW (N. D. Fla. Apr. 17, 2014) (dismissing with prejudice breach of contract claims)
  • TILA: private right of action exists for borrower enforcement of Regulation Z promulgated pursuant to TILA and creditor or its assignee may be held vicariously liable for servicer’s failure to provide payoff statement in violation of TILA, although servicer not liable - Lucien v. Fed. Nat’l Mortg. Ass’n, No. 13-CV-62399 (S.D. Fla. May 23, 2014) (dismissing in part)

III. TITLE INSURANCE CASES - CHRIS SMART

  • Class Action: title agent performed services within the meaning of RESPA and earned a portion of the fee even though agent hired attorney to conduct a portion of the closing – Wesolowski v. Title Source, Inc., No. 1: 13-CV-02427 (N.D. Ga. May 22 2014) (order dismissing putative class action)
  • Duty to Defend: where underlying facts of complaint for adverse possession give rise to duty to defend, insurer has duty to defend even if the allegations of the complaint as drafted could not give rise to indemnification because of adverse possession exclusion– Bye v. Sire, No. 2013AP1853 (Wis. App. May 20, 2014) (reversing 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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