REAL PROPERTY UPDATE

• Constitutional Homestead Exemption/Protection from Forced Sale: former marital home entitled to homestead exemption under article X, section 4 of Florida Constitution because (1) decedent and former wife still owned home as tenants in common at time of his death; (2) decedent’s sons, whom he supported financially, continued to live in home; and (3) terms of marital settlement agreement did not waive decedent’s homestead rights -- Friscia v. Friscia, No. 2D13-412 (Fla. 2d DCA Aug. 27, 2014) (affirming order determining decedent’s interest in former marital home was entitled to homestead protection)
• Quiet Title/Final Judgment:  plaintiffs stated cause of action to secure disclosure of public records relating to quiet title action previously settled between plaintiffs and city because inverse condemnation lawsuit filed by plaintiffs subsequent to entry of final judgment in quiet title action was not enforcement proceeding stemming from settlement of quiet title action -- Chmielewski v. City of St. Pete Beach, Florida, No. 2D13-4923 (Fla. 2d DCA Aug. 27, 2014) (reversing order granting with prejudice motion to dismiss complaint)
• Foreclosure Sale/Surplus Funds: circuit court erred by disbursing surplus funds to junior lienholder, instead of owners, because junior lienholder failed to file claim for surplus within sixty days after sale -- Dever v. Wells Fargo Bank, N.A., No. 2D13-5830 (Fla. 2d DCA Aug. 27, 2014) (reversing order disbursing surplus funds)
• Dismissal/Costs: borrowers not entitled to attorney’s fees as cost pursuant to terms of mortgage where mortgage did not define costs to include attorney’s fees and where borrowers did not plead entitlement to attorney’s fees in answer to foreclosure complaint -- Creamer v. BAC Home Loans Servicing, LP, No. 2D12-2304 (Fla. 2d DCA Aug. 29, 2014) (affirming denial of motion for costs in regard to attorney’s fees)
• Foreclosure/Judgment on Pleadings: borrower not entitled to judgment on pleadings on ground that promissory note and mortgage did not contain prepayment rider referenced in note, where (1) foreclosure complaint alleged execution of note and mortgage, assignment of note and mortgage, default on mortgage by borrower’s failure to make regular payments, and plaintiff’s ownership of note and mortgage; (2) complaint initially sought to reestablish note; (3) summary of note attached to complaint provided specific material terms of loan; and (4) borrower’s answer included admission that she had missed several mortgage payments -- Nationstar Mortg., LLC v. Zorie, No. 5D13-4217 (Fla. 5th DCA Aug. 29, 2014) (reversing amended final judgment in favor of borrower)
• Foreclosure; Standing:  material issues of fact regarding whether plaintiff held promissory note prior to institution of the foreclosure action precluded summary judgment in plaintiff’s favor -- Benz v. Fed. Home Loan Mortg. Corp., Case No. 2D13-974 (Fla. 2d DCA Aug. 22, 2014) (reversed and remanded for further proceedings).
• Condition Precedent; Proof of Loss:  insured failed to comply with condition precedent by not submitting a sworn proof of loss, and insurer did not have to show prejudice -- Rodrigo v. State Farm Fla. Ins. Co., Case No. 4D12-3410 (Fla. 4th DCA Aug. 20, 2014) (affirming summary judgment in insurer’s favor).
• Condition Precedent; Proof of Loss:  insured materially breached their duties by failing to timely submit sworn proof of loss, and insured did not rebut presumption that insurer was prejudiced by their noncompliance with a condition precedent -- Hunt v. State Farm Fla. Ins. Co., Case No. 4D13-272 (Fla. 4th DCA Aug. 20, 2014) (affirming summary judgment in insurer’s favor).
• Lack of Prosecution; Dismissal with Prejudice:  dismissal of complaint without prejudice for lack of prosecution was improper -- Garcia v. BAC Home Loans, Case No. 5D13-2237 (Fla. 5th DCA Aug. 22, 2014) (reversing and remanding for good-cause hearing)
• Affidavit: bank employee may rely on business records of bank’s predecessor entity in giving affidavit even though such employee was neither employed by nor affiliated with the predecessor entity -- PNC Bank, Nat’l Ass’n v. Orchid Group Investments, L.L.C., No. 2:13-CV-12-FTM-38CM (M.D. Fla. Aug. 6, 2014) (granting plaintiff’s motion for summary judgment)
• Foreclosure: mortgagee not barred from filing a new foreclosure action based on mortgagor’s different default even when mortgagee previously brought and dismissed a foreclosure action on an earlier default -- Espinoza v. Countrywide Home Loans Servicing, L.P., No. 14-20756-CIV (S.D. Fla. Aug. 5, 2014) (granting Defendants’ motion to dismiss second amended complaint)

FINANCIAL SERVICES UPDATE

• TILA: all TILA claims must be brought within 1 year from date of occurrence of violation -- Farrell v. GMAC Mortgage, No. 2:13-cv-140-FtM-29DNF (M.D. Fla. Aug 21, 2014) (dismissing amended complaint with prejudice)

TITLE INSURANCE UPDATE

• Exclusion 3(a): lender who is aware of and takes mortgage subject to prior mortgages, “assumes and agrees” to those mortgages and this is not entitled to coverage even if the policy fails to exclude those liens -- First American Title Ins. Co. v. Lane Powell PC, 13-2012 (1st Cir. Aug. 22, 2014)
• Class Action: dismissing complaint where plaintiff in putative class action fails to allege which particular defendants allegedly overcharged them for real estate transfer taxes -- Bushman v. Fidelity Nat. Title Ins., Co., Case No. 14-cv-10011 (E.D. Mich. Aug. 21, 2014) (order granting motion to dismiss)