REAL PROPERTY UPDATE

• Foreclosure/Standing: to establish a prima facie case for mortgage foreclosure, successor mortgagor must introduce evidence it was in possession of original note with blank endorsement at time it filed complaint. – May v. PHH Mortgage Corporation, No. 2D13-1786 (Fla. 2d DCA Sept. 3, 2014) (reversed and remanded)
• Foreclosure/Condition Precedent: lender failed to provide summary judgment evidence to rebut borrowers’ affirmative defenses, which alleged borrowers had not received default notice at borrowers’ address expressly provided in mortgage. – Ramos v. Citimorgage, Inc., No. 3D13-23031 (Fla. 3d DCA Sept. 3, 2014) (reversed and remanded)
• Substitute Service: substitute service on non-resident bank through Secretary of State under Florida Statute § 48.161 requires Plaintiff to send notice of service and copy of the process by certified or registered mail. – HSBC Bank USA, National Assn., ETC., v. Centre Court Ridge Condominium Association, Inc., No. 5D13-3208-9 (Fla. 5th DCA Sept. 5, 2014) (reversed)

FINANCIAL SERVICES UPDATE - NONE

TITLE INSURANCE UPDATE

• CPL: closing protection letters do not run with the land and are severable from the title insurance policies issued with them – FDIC-R (WaMu) v. Attorney’s Title Ins. Fund, Inc., Case No. 12-23599 (S.D. Fla. Sept. 3, 2014) (order granting summary judgment).
• CPL: title insurer lacks essential prudential standing of purchase and assumption agreement and is foreclosed from arguing that the FDIC did not carve out CPL claims from the conveyance – FDIC-R (WaMu) v. Attorney’s Title Ins. Fund, Inc., Case No. 12-23599 (S.D. Fla. Sept. 3, 2014) (order granting summary judgment).
• CPL: summary judgment evidence failed to establish that negligence of the bank (indemnitee) is a defense in a CPL-based indemnity action – FDIC-R (WaMu) v. Attorney’s Title Ins. Fund, Inc., Case No. 12-23599 (S.D. Fla. Sept. 3, 2014) (order granting summary judgment).
• CPL: where bank’s investigation led to discovery of the loss and the agent’s failure to follow the closing instruction, 90 day notice requirement was triggered and operated to bar FDIC’s claims – FDIC-R (WaMu) v. Attorney’s Title Ins. Fund, Inc., Case No. 12-23599 (S.D. Fla. Sept. 3, 2014) (order granting summary judgment).
• CPL: title insurer’s own investigation and discovery of agent’s actions does not avoid 90 day notice requirement, since title insurer has no way of knowing of the claimant’s loss absent a claim  – FDIC-R (WaMu) v. Attorney’s Title Ins. Fund, Inc., Case No. 12-23599 (S.D. Fla. Sept. 3, 2014) (order granting summary judgment).
• CPL: failure to disclose second mortgage on HUD-1 constitutes dishonesty in handling lender’s documents triggering indemnification obligations under CPL – FDIC-R (WaMu) v. Attorney’s Title Ins. Fund, Inc., Case No. 12-23599 (S.D. Fla. Sept. 3, 2014) (order granting summary judgment).
• CPL: lender entitled to prejudgment interest from the date of closing – FDIC-R (WaMu) v. Attorney’s Title Ins. Fund, Inc., Case No. 12-23599 (S.D. Fla. Sept. 3, 2014) (order granting summary judgment).
• Suspicious Activity Reports: title insurer’s entitled to discovery of information relating to fraud alerts that may have been received by bank to show that bank was aware of title agent’s mishandling of escrow account over bank’s objections that the request sought privileged suspicious active report information – First American Title Ins. Co. v. Westbury Bank, Case No. 12-cv-1210 (E.D. Wis. Aug 29, 2014) (order granting motion to compel).
• Closing Agent: agent did not commit fraud or breach its fiduciary duty to the seller where it did not explain to the seller that the loan to which his seller’s mortgage would be subordinate was not a development loan – Fontenot v. Land America Commonwealth Title of Houston, Inc., Case No. 1-13-00506-CV (Tex. App. Aug. 28, 2014) (affirming jury verdict).
• Nonjudicial Foreclosure: because nonjudicial foreclosures are subject to the common interest privilege, a showing of mere negligence on the part of the trustee is insufficient to support liability and actual malice must be demonstrated – Signature Log Homes, LLC v. Fidelity National Title Co., Case No. 56683 (Cal. App. Aug. 21, 2014) (affirming summary judgment)