Real Property, Financial Services & Title Insurance Case Law Update: Weeks Ending August 9 & 16, 2013

by Carlton Fields


  • Slander of Title: slander of title counterclaim barred by statute of limitations could not be brought as recoupment claim to avoid limitations because it did not spring from same transaction or occurrence as underlying claim – Regions Bank d/b/a Regions Mortgage v. Cuny, No. 1D12-2843 (Fla. 1st DCA Aug. 9, 2013) (affirmed in part and reversed in part)
  • Lost Note: bank failed to present sufficient evidence at trial to reestablish lost note under Fla. Stat. § 673.3091 where it failed to prove note terms (no specific testimony elicited and copy of note not entered into evidence) or its right to enforce the note – Correa v. U.S. Bank National Assoc. as Trustee, No. 2D12-2209 (Fla. 2d DCA Aug. 9, 2013) (reversing with directions to dismiss complaint)
  • Arbitration: homeowners’ association’s tactical decision to plead amended complaint as action based on statutory violations instead of action for breach of warranty did not prevent action from being compelled to arbitration – Pulte Home Corp. v. Bay at Cypress Creek Homeowners’ Assoc. Inc., No. 2D13-316 (Fla. 2d DCA Aug. 9, 2013) (reversing order denying renewed motion to compel arbitration)
  • Foreclosure: genuine issue of material fact as to bank’s standing precluded summary foreclosure judgment where borrowers challenged validity of signatures on allonges and bank failed to present evidence of signatory’s authority to overcome -- Bennett v. Deutsche Bank Nat’l Trust Co., No. 4D12-2471 (Fla. 4th DCA Aug. 7, 2013) (reversing final summary judgment of foreclosure)
  • Venue: action on lien transfer bond must be brought in circuit court of county where bond posted, notwithstanding mandatory venue provision in parties’ contract – Attaway Electric, Inc. v. Kelsey Construction Inc., No. 4D13-710 (Fla. 4th DCA Aug. 7, 2013) (reversing with directions to vacate order transferring venue)
  • Discovery in Aid of Execution: judgment creditor entitled to discovery of debtor’s assets, even if jointly held by debtor and debtor’s spouse, but not entitled to discovery of assets held only by debtor’s spouse -- Regions Bank v MDG Frank Helmerich, LLC, No. 2D12-2427 (Fla. 2d DCA Aug. 14, 2013) (order denying motion to compel affirmed in part, reversed in part, and remanded)
  • Declaratory Relief: complaint seeking declaratory relief concerning ordinance cannot be dismissed on ground that plaintiff failed to exhaust all administrative remedies -- Angelo’s Aggregate Materials, LTD v Pasco County, No. 2D12-3112 (Fla. 2d DCA Aug. 14, 2013) (dismissal reversed)
  • Attorney’s Fees: condominium association’s refusal to accept foreclosing bank’s reduced payoff of past due assessments per Fla. Stat. § 718.116 entitled bank to attorney’s fees under Fla. Stat. § 718.303(1) as prevailing party in dispute between unit owner and association -- Ocean Bank v Caribbean Towers Condominium Association, No. 3D12-1096 & 3D12-1889 (Fla. 3d DCA Aug. 14, 2013) (order reversed)
  • Judgment: final judgment should not have been entered when a related counterclaim remained pending -- Dilican v Normandy Village Property Owners Association, Inc., No. 4D12-587 (Fla. 3d DCA August 14, 2013) (reversing summary judgment)
  • Sunshine Law: Fla. Stat. § 286.0114 does not give public a right to be heard or participate in a city commission meeting -- Herrin v City of Deltona, No. 5D12-1887 (Fla. 5th  DCA Aug. 16, 2013) (affirmed)


  • Standing: successor bank had standing to foreclose as a result of merger because, by virtue of merger, power to foreclose vested in bank without any further assignment or conveyance required – Horowitz v. CitiMortgage, Inc., No. 13-11383 (11th Cir. Aug. 9, 2013) (affirming district court’s grant of motion to dismiss)
  • Non-judicial Foreclosure: foreclosure notices were adequate when they identified contact information of loan servicer and were sent at least 30 days before foreclosure sale, even though (i) they did not identify secured creditor or specific date of sale and were sent by a law firm and (ii) foreclosure sale advertisement was not sent together with foreclosure notices – Carr v. U.S. Bank, NA, No. 1:11-cv-00821-SCJ (11th Cir. Aug. 16, 2013) (affirming summary judgment)


  • Curing Title: title insurer who obtains quit claim deeds in favor of insured, which, under Louisiana law, rendered title “free of rational substantial doubt,” cures the alleged defect and renders title marketable within the meaning of the title insurance policy – Martin v. Fidelity Nat’l Title Ins. Co., No. 13-30013 (5th Cir. Aug. 5, 2013) (affirming judgment)
  • Closing Protection Letters: CPL issued without “successors or assigns” language is not enforceable by a subsequent owner of the loan made by the lender who was original addressee of the letter – U.S. Bank N.A. v. Lawyers Title Ins. Corp., No. 09013702 (Super. Conn. July 11, 2013) (granting in part, denying in part insurer’s motion for summary judgment)
  • Commitment: title insurance commitment is not invalid merely because the insurer’s independent agent neglects to attach the commitment jacket – U.S. Bank N.A. v. Lawyers Title Ins. Corp., No. 09013702 (Super. Conn. July 11, 2013) (granting in part, denying in part insurer’s motion for summary judgment)
  • Standing: assignee of lender sufficiently alleged that title insurance policy and closing protection letter had been assigned to it in order to withstand motion to dismiss – Aurora Loan Services, LLC v. Hirsch, No. 106008973 (Super. Conn. June 28, 2013) (denying motion to dismiss) (copy not publicly available)


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.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.