Real Property, Financial Services & Title Insurance Case Law Update: Week Ending October 25 & November 1, 2013

by Carlton Fields


  • Receiver: court’s inherent equitable power to appoint receiver over non-profit condominium association not limited to categories set forth in Florida Statutes – Granada Lakes Villas Condo. Ass’n, Inc. v Metro-Dade Invs. Co., No. SC11-2590 (Fla. Oct. 31, 2013) (affirmed)
  • Foreclosure: where lender possessed original note, endorsed in blank, lender lawful holder entitled to enforce note – Am. Home Mortg. Servicing, Inc. v. Bednarek, No. 2D12-2099 (Fla. 2d DCA Oct. 25, 2013) (reversed and remanded)
  • Foreclosure: summary judgment improper where at least one genuine issue of material fact remained regarding lender’s compliance with mortgage acceleration clause – Wadsworth v. JP Morgan Chase Bank, N.A., No. 2D12-2099 (Fla. 2d DCA Oct. 25, 2013) (reversed and remanded)
  • Foreclosure/SCRA: court erred in denying servicemember’s request to stay proceedings and vacate foreclosure judgment where servicemember submitted multiple letters informing court of his active duty military status, advising court regarding Servicemembers Civil Relief Act (“SCRA”) protections, and attaching copy of his military orders – Higgins v. Timber Springs Homeowners Ass’n, Inc., No. 5D12-4806 (Fla. 5th DCA Nov. 1, 2013) (reversed and remanded)
  • Service of Process:  court should have held evidentiary hearing on defendant’s motion to quash service of process in light of defendant’s motion and supporting affidavit of non-service contesting veracity of statements in return of service – Davis v. Nat’l Collegiate Student Loan Trust 2004-2, No. 4D12-4503 (Fla. 4th DCA Oct. 30, 2013) (reversing non-final order denying motion to quash service of process)


  • Standing/Rescission/Reformation: borrowers suffered no injury-in-fact to confer standing in action seeking rescission or reformation on theory that securitization and resulting servicing of their loans by servicing companies rather than lenders eliminated their ability to modify loans where borrowers had no legally protected interest in negotiating with a lender rather than a servicing company or in having a lender who would be inclined to agree to a modification -- Barber v. America’s Wholesale Lender, No. 8:12-cv-1124-JDW-TBM (11th Circ. Oct. 21, 2013) (affirming dismissal of complaint without prejudice)
  • Federal Tax Lien: federal tax lien against individual attached to individual’s real property even where owned as tenants by the entirety – USA v. Cone, No. 8:13-cv-00413-GAP-DAB (M.D. Fla. Oct. 22, 2013) (confirming and adopting report and recommendation)
  • FCRA: consumer action under Fair Credit Reporting Act (“FCRA”) accrues at earlier of (i) expiration of statutory 30-day period, or (ii) notification from furnisher of information, either directly or indirectly through a credit bureau, that its reinvestigation duties have been completed - Rappaport v. Green Tree Servicing, LLC, No. 0:13-cv-61624-RSR (S.D. Fla. Oct. 22, 2013) (order granting defendant’s motion to dismiss)


  • The Title Insurance Cases section is on a brief hiatus due to trial commitments but we will return soon with our weekly summaries of recent title insurance cases (including catch-up summaries).

Written by:

Carlton Fields

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