Real Property, Financial Services & Title Insurance Update

by Carlton Fields


  • Eminent Domain/Deposit Funds:  plaintiff’s right to interest on funds placed on deposit with Clerk during eminent domain proceedings pursuant to section 74.051, Florida Statutes (2007) needed to be resolved in initial takings case, and no second taking resulted from Clerk’s investment of deposit funds or payment of investment interest to City – Livingston v. Frank, No. 2D12-5616 (Fla. 2d DCA July 30, 2014) (affirming summary judgment in favor of Clerk and City)
  • Foreclosure/Attorney’s Fees:  defendant’s motion for attorney’s fees filed within thirty days of plaintiff’s voluntary dismissal was timely and did not need to plead a ground for attorney’s fees with specificity – Tunison v. Bank of Am., N.A., No. 2D13-3351 (Fla. 2d DCA July 30, 2014) (reversing order denying defendant’s motion for attorney’s fees)
  • Foreclosure/Attorney’s Fees:  conditional language in plaintiff’s notice of voluntary dismissal purporting to preclude defendant from recovering his attorney’s fees was not binding upon defendant – Tunison v. Bank of Am., No. 2D13-3351 (Fla. 2d DCA July 30, 2014) (reversing order denying defendant’s motion for attorney’s fees)
  • Deficiency Judgment/Deed in Lieu:  property taxes and insurance for period after date deed in lieu of foreclosure was executed should not have been included in deficiency judgment, and calculations of prejudgment interest should have taken into account reduction of pecuniary losses on date of deed – Philippe v. Michael Weiner, M.D., P.A., No. 3D13-597 (Fla. 3d DCA July 30, 2014) (affirming final deficiency judgment in part, reversing in part)
  • Real Estate Commission Lien:  lien against proceeds of real estate sale was not exclusive remedy for real estate commission under Florida law, and real estate broker’s lien on real property was permitted under commission agreement and section 475.52(1)(j), Florida Statutes – J. Milton Dadeland, LLC v. Abala, Inc., Nos. 3D13-2624 & 3D13-844 (Fla. 3d DCA July 30, 2014) (affirming final judgment)
  • Foreclosure/Service of Process:  because affidavits of service were defective on their face, service of process should have been quashed – Romeo v. U.S. Bank Nat’l Ass’n, No. 4D14-185 (Fla. 4th DCA July 30, 2014) (reversing non-final order denying motion to quash service of process)
  • Foreclosure/Attorney’s Fees:  after plaintiff voluntarily dismissed foreclosure action, trial court lost jurisdiction to determine reasonableness of plaintiff’s attorney’s fees, as requested by borrowers in motion filed thirty days after dismissal – Iberiabank v. RHN Invs. Ltd., No. 4D14-1330 (Fla. 4th DCA July 30, 2014) (granting petition for writ of prohibition)
  • Foreclosure/Notice of Default:  because express language of mortgage only required that plaintiff mail notice of default to defendants, not that defendants receive it, no genuine issue of material fact precluded summary judgment of foreclosure in favor of plaintiff, even though defendants averred they did not receive notice of default – Roman v. Wells Fargo Bank, No. 5D13-2479 (Fla. 5th DCA Aug. 1, 2014) (affirming final summary judgment of foreclosure) [Kudos to Michael Winston, MaryEllen Farrell, and Dean Morande of CFJB who represented Wells Fargo on appeal]
  • Foreclosure Sale; Surplus Proceeds:  Trial court erred in disbursing proceeds to third-party buyer at foreclosure sale to apply surplus funds to superior lien, rather than disbursing them to owner of record – Pineda v. Wells Fargo Bank, N.A., Case No. 3D13-2968 (Fla. 3d DCA July 23, 2014) (reversing and remanding with directions to deposit funds into court registry).
  • Foreclosure: Standing:  Bank failed to demonstrated that endorsement on promissory note occurred prior to the filing of the initial complaint Ryan v. Wells Fargo Bank, N.A., Case No. 4D13-2155 (Fla. 4th DCA July 23, 2014) (reversing final judgment of foreclosure)


  • Suit on Guaranty: creditor seeking to enforce guaranty need not present original promissory notes before entry of judgment where (i) guaranty unconditional, (ii) affidavit established creditor was owner and holder of underlying notes, and (iii) creditor not also seeking to foreclose mortgage in same action  Branch Banking and Trust Company v. D'Amore, No. 2:13–cv–373–FtM–38CM. (M.D. Fla. July 22, 2014) (granting plaintiff’s motion for final summary judgment)


  • Subrogation: title insurer’s payment of claim under threat of potential policy liability is not a voluntary settlement and entitles insurer to subrogation to lender’s position and indemnification from guarantor – Van Deuren v. Chicago Title Ins. Co., Case No. 10-C-753 (E.D. Wis.  July 16, 2014) (decision and order on bench trial)
  • Closing Agent: closing agent owes a fiduciary duty to the parties to the transaction but an assignee of owner of unsecured promissory note is not a party to sale of property and closing agent owes no duty to advise note assignee or owner of sale PMSALS 1 LLC v. American Opportunity for Housing-Perrin Oaks, LLC, Case No. 04-13-00801-CV (Tx. App. July 16, 2014) (memorandum opinion affirming trial court’s judgment)
  • Measure of Damage: the measure of lender’s damage under a transportation title insurance policy, as under a real property title insurance policy, is the difference between the value of the mortgage lien as insured and the value of the mortgage lien subject to the additional liens First American Bank v. First American Trans. Title Ins. Co., Case No. 13-30888 (5th Cir. July 15, 2014) (affirming final judgment)
  • Date of Valuation: date of valuation or loss under a transportation title insurance policy, as under a real property title insurance policy, is the date of the foreclosure sale – First American Bank v. First American Trans. Title Ins. Co., Case No. 13-30888 (5th Cir. July 15, 2014) (affirming final judgment)
  • Exclusion 3(a): where both insured and insurer knew of dispute over access and insurer issued endorsement specifically insuring access across certain roads, insured did not “suffer, assume or agree” to lack of access across those roads so as to preclude coverage Meadow Brook, LLP v. First Am. Title Ins. Co., Case No. DA 13—698 (Mont. July 16, 2014) (affirming summary judgment)
  • Coverage: a title insurance policy does not cover alleged damage arising out of recorded notice relating to future availability of flood insurance because such notice does not affect title to the property Lemon-Pittman v. Commonwealth Land Title Ins. Co., Case No. 13-6424 (E.D. La. July 15, 2014) (order granting motion to dismiss)
  • Apparent Authority: lender could not, as a matter of law, have justifiably relied upon unmarked title insurance commitments that were not countersigned as proof of title insurance and such commitments could not support apparent authority of agent to issue title insurance FDIC-R (WaMu) v. United General Title Ins. Co., Case No. 11-CV-4610 (E.D.N.Y. July 3, 2014) (memorandum and order granting in part and denying in part motion to dismiss)


A jury in Texas district court recently found for Stewart Information Services Corporation and Stewart Title Guaranty Corporation (collectively, “Stewart”) on all counts in Stewart Info. Servs. Corp. & Stewart Title Guar. Co. v. Great Am. Ins. Co., Civil Action No. H-11-2951 (S. D. Tex. Jul. 22, 2014),  a case brought by Stewart in 2011 against its fidelity bond carrier, Great American Insurance Company, seeking (i) a determination of coverage under the bond, (ii) breach of  contract for its failure to indemnify Stewart, (iii) unfair and deceptive insurance practices, and (iv) breach of good faith and fair dealing.  The case arose in connection with numerous claims against Stewart Title Guaranty Company title insurance policies issued by Arlene Raijman, an attorney and former STGC title insurance agent located in Miami Beach.    The jury found that Raijman committed dishonest or fraudulent acts with the manifest intent to cause Stewart to sustain a loss and to obtain financial benefit for herself or another person or entity, and awarded Stewart $16,055,000, including $9.655 million for the claims brought plus interest, $4.8 for unfair and deceptive practices, and $1.6 million in attorneys’ fees.   The judge struck an additional award to Stewart of $15 million in punitive damages.  A link to the verdict can be found here. [Kudos to Sarah Cortvriend of CFJB who was instrumental in providing assistance to Stewart’s Texas counsel in this matter, and to both John Hart and Sarah Cortvriend of CFJB who continue to represent STGC in related matters in South Florida stemming from Raijman’s issuance of title insurance policies]

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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