Real Property, Financial Services & Title Insurance Update: August 2014 #1

by Carlton Fields


  • Foreclosure/Lack of Prosecution: Trial court erred in granting lender’s motion to vacate an order dismissing its foreclosure complaint for lack of prosecution without first giving borrower an opportunity to be heard at an evidentiary hearing. – Arcila v. BAC Home Loans Servicing, L.P., No. 2D13-2366 (Fla. 2nd DCA Aug. 6, 2014) (reversed and remanded)
  • Foreclosure/Standing: Trial court erred in entering final judgment of foreclosure where lender failed to provide documentation which established that it had standing at the time it filed the foreclosure complaint. – Boyd v. Wells Fargo Bank N.A., as Trustee for Option One Mortgage Loan Trust 2006-1 Asset Backed Certificates Series 2006-1 et al., No. 4D13-208 (Fla. 4th DCA Aug. 6, 2014) (reversed)
  • Deficiency Judgment: Mortgage lender that proceeds with foreclosure cannot enforce money judgment prior to entry of deficiency judgment. Hammond v. Kingsley Asset Management, LLC, Case No. Nos. 2D13–4425, 2D13–4522 (Fla. 2d DCA August 13, 2014).
  • Statute of Limitations to Correct Title: Purpose of section 95.231(2), Florida Statutes, is clear title to real estate of formal irregularities by limiting the time within which such defects can be asserted to 20 years, but cannot validate a conveyance made by someone who had never had an interest in the property. Hardey v Shell, Case No. 2D12-3925 (Fla. 2d DCA August 14, 2014


  • FCCPA: Florida Consumer Collection Practices Act applies to anyone collecting a debt (secured and/or unsecured), and not just a "debt collector". Gann v. BAC Home Loans Servicing LP, Case No. 2D12-6271 (Fla. 2d DCA August 15, 2014)


  • Mechanic Liens: affirming title insurer’s entitlement to indemnification and prejudgment interest over indemnitors’ claims that insurer was negligent and that alleged losses had to be allocated pro rata to only one of the indemnitors – Commonwealth Land Title Ins. Co. v. Historic Ivy Tower, LLC, Case no. A13-1621 (Minn. App. Aug. 4, 2014) (affirming in part, reversing in part summary judgment)
  • Right to Cure Title: title insurer has contractual right to seek to establish priority of the lien of the insured mortgage as an alternative to payment of insured’s claim – DAFCO, LLC v. Stewart Title Guaranty Company, Case No. 40738 (Idaho July 31, 2014) (affirming summary judgment)
  • Agent’s Liability: where a closing agent is not acting as title insurer and a successor mortgagee is not a party to the escrow agreement and closing instructions of the original lender and not a third party beneficiary thereof, there is no privity of contract and claims for breach of contract by the successor mortgagee against the agent must be dismissed – DAFCO, LLC v. Stewart Title Guaranty Company, Case No. 40738 (Idaho July 31, 2014) (affirming summary judgment)
  • Agent’s Liability: closing agent had an independent duty to ascertain what client wanted out of 1031 exchange closing and subsequent closing contract did not alleviate that duty – Kreisers Inc. v. First Dakota Title Ltd., Case Nos. 26809 & 26818 (S.D. July 30, 2014) (affirming judgment)
  • Agent’s Liability: declining to extend the economic loss doctrine to closing agent’s duties – Kreisers Inc. v. First Dakota Title Ltd., Case Nos. 26809 & 26818 (S.D. July 30, 2014) (affirming judgment)
  • Exclusion 3(a): lender who bargains for a second lien position is not entitled to coverage based on prior loan because it “agreed” to the prior loan under the policy’s 3(a) exclusion, even if the commitment marked the prior first mortgage as “removed” and even if the policy failed to include an exception for the prior first mortgage – Beneficial Mut. Sav. Bank v. Stewart Title Guar. Co., Case No. 12-6256 (E.D. Penn. Aug. 11, 2014) (memorandum granting summary judgment)
  • Attorney Client Privilege: insured owner is entitled to discover communications between its title insurer and the law firm hired by the title insure to recover amounts paid to the insured in a subrogation action, where the title insurer also hired the same firm to represent the insured in a separate, earlier action to cure title – Feduniak v. Old Republic National Title Insurance Company, Case No. 5:13-cv-02060 (N.D. Cal. Aug. 7, 2014) (order on discovery dispute)

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.