Real Property, Financial Services & Title Insurance Case Law Update: Week Ending September 27, 2013

by Carlton Fields
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I. FLORIDA STATE CASES - ILAN NIEUCHOWICZ

  • Foreclosure/Standing: certifying to Florida Supreme Court as question of great public importance whether a plaintiff in a foreclosure action may cure inability to prove standing at inception of suit by proof that plaintiff has since acquired standing - Focht v. Wells Fargo Bank, N.A., Nos. 2D11-4511 & 2D11-4980 (Fla. 2d DCA Sept. 25, 2013) (reversed and remanded)
  • Claim of Lien: court erred in discharging claim of lien for discrepancy in name of lienor without holding evidentiary hearing to determine if any adverse effect resulted from discrepancy - Premier Finishes, Inc. v. Maggirias, No. 2D13-1340 (Fla. 2d DCA Sept. 25, 2013) (order quashed in part; remanded)
  • Easement: reciprocal easement for access and parking did not restrict owner from constructing building over portion of parking area on its property where construction did not interfere with access and easement did not require owner to maintain specific number of parking spaces - Casino Investment, Inc. v. Palm Springs Miles Associates, Ltd., No. 3D12-2257 (Fla. 3d DCA Sept. 25, 2013) (reversed and remanded)
  • Inverse Condemnation: inverse condemnation proceeding is in rem action that must be brought in county where land at issue is situated - TIIF v. Walton County, No. 1D13-244 (Fla. 1st DCA Sept. 23, 2013) (affirmed)

II. 11TH CIRCUIT CASES - JIN LIU

  • Fair Credit Reporting Act: to assert private right of action for violation of FCRA, plaintiff must allege defendant received notice of credit dispute from consumer reporting agency -- Deutsche Bank National Trust Co. v Foxx, No. 8:13–cv–115–T–35TBM (M.D. Fla. Sept. 19, 2013) (granting in part and denying in part motion to dismiss)
  • Fair Debt Collection Practice Act: consumer's creditors and mortgage servicing companies are not "debt collectors" under FDCPA as long as debt not in default when assigned to them -- Deutsche Bank National Trust Co. v Foxx, No. 8:13–cv–115–T–35TBM (M.D. Fla. Sept. 19, 2013) (granting in part and denying in part motion to dismiss)

III. TITLE INSURANCE CASES - CHRIS SMART

  • CPL: right to enforce CPLs runs with owner of land and FDIC-R could not retain CPL rights when it sold underlying loan documents – FDIC-R (BankUnited) v. Floridian Title Group, Inc., No. 12-21890 (S.D. Fla. Sept. 23, 2013) (order granting summary judgment)
  • Premium: conflicting evidence as to payment of premium precludes summary judgment as to whether valid title insurance policy issued – FDIC-R (AmTrust) v. Commonwealth Land Title Ins. Co., No. 1:08-cv-2390 (N.D. Ohio Sept. 13, 2013) (order granting in part, denying in part motion to alter or amend judgment)
  • Commitment: title insurance commitment not an abstract of title or a representation of condition of title to property and, as a result, may not form basis of claim for negligent misrepresentation – Centennial Dev. Group, LLC v. Lawyer’s Title Ins. Corp., No. 12-0080 (Ariz. App. Sept. 19, 2013) (order affirming in part, reversing in part, summary judgment)
  • Termination of Coverage: insured’s sale of property without warranty for alleged defect does not, of itself, bar claim for damages allegedly incurred prior to sale as result of alleged defect – Centennial Dev. Group, LLC v. Lawyer’s Title Ins. Corp., No. 12-0080 (Ariz. App. Sept. 19, 2013) (order affirming in part, reversing in part, summary judgment)
  • Closing Agent: closing instructions requiring “all necessary signatures and notary” do not require closing agent to verify identity of borrower or determine whether borrower’s form of identification valid – Countrywide Home Loans, Inc. v. United General Title Ins. Co., No. 2012-03830 (N.Y. App. Sept. 25, 2013) (reversing order denying summary judgment and granting summary judgment dismissing complaint)
  • Closing Agent: where borrower executes documents and produces forged identification, closing agent does not breach closing instructions requiring “all necessary signatures and notary” and is not liable for breach of closing instructions or in tort – Countrywide Home Loans, Inc. v. United General Title Ins. Co., No. 2012-03830 (N.Y. App. Sept. 25, 2013) (reversing order denying summary judgment and granting summary judgment dismissing complaint)
  • Termination of Coverage: insured’s recording of satisfaction of lien does not terminate coverage where underlying policy was void ab initio based on forgery – Countrywide Home Loans, Inc. v. United General Title Ins. Co., No. 2012-00831 (N.Y. App. Sept. 25, 2013) (reversing order granting summary judgment)
  • Exclusion 3: whether insured lender failed to properly verify identity of borrower created issue of fact whether lender “created, suffered, assumed, or agreed” to defect by enabling forgery to occur – Countrywide Home Loans, Inc. v. United General Title Ins. Co., No. 2012-00831 (N.Y. App. Sept. 25, 2013) (reversing order granting summary judgment)
  • Consumer Protection: seller of real property not a purchaser of title insurance and thus not a consumer under Pennsylvania’s statute – Duffy v. Lawyer’s Title Ins. Co., No. 11-4503 (E.D. Pa. Sept. 17, 2013) (order granting defendant’s motion for summary judgment)
  • Consumer Protection: seller of real property cannot show justifiable reliance on actions of title insurer where seller and insurer do not interact – Duffy v. Lawyer’s Title Ins. Co., No. 11-4503 (E.D. Pa. Sept. 17, 2013) (order granting defendant’s motion for summary judgment)
  • Consumer Protection: seller does not reasonably rely on title insurance issued to buyer and buyer’s lender – Duffy v. Lawyer’s Title Ins. Co., No. 11-4503 (E.D. Pa. Sept. 17, 2013) (order granting defendant’s motion for summary judgment)
  • Agency: where title insurance issuing agency agreement limits company’s authority on behalf of title insurer to issuing title insurance, company not title insurer’s agent in providing closing services, including paying off liens and encumbrances, in connection with transaction in which it also issues title insurance – Duffy v. Lawyer’s Title Ins. Co., No. 11-4503 (E.D. Pa. Sept. 17, 2013) (order granting defendant’s motion for summary judgment)
  • Agency: where plaintiff has no contact with title insurer, no apparent agency exists between title insurer and company that closed transaction – Duffy v. Lawyer’s Title Ins. Co., No. 11-4503 (E.D. Pa. Sept. 17, 2013) (order granting defendant’s motion for summary judgment)

 

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Carlton Fields
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