Real Property, Financial Services & Title Insurance Case Law Update: Week Ending January 3, 2014

by Carlton Fields


  • Discovery: guarantors who moved to set aside stipulation to deficiency judgment not entitled to depose corporate representatives of foreclosing plaintiff and assignee of final judgment of foreclosure – Eagle FL VI SPE, LLC v. Cypress Creek Plaza, LLC, No. 2D13-296 (Fla. 2d DCA Dec. 27, 2013) (granting petition for certiorari review of nonfinal order denying motions for protection from discovery) 
  • Tax Deed: liability to homeowners’ associations for unpaid assessments that accrued prior to issuance of tax deed did not survive issuance of tax deed – Lunohah Invs., LLC v. Gaskell, No. 5D13-1175 (Fla. 5th DCA Dec. 27, 2013) (reversing order granting summary judgment in favor of homeowners’ associations) 
  • Foreclosure Sale: objection to foreclosure sale should have been denied where defendant failed to tender payment to foreclosing association before filing of certificate of sale as required by final judgment and where no evidence of equitable ground to set aside sale – Chase Fin. Servs., LLC v. Edelsberg, No. 3D13-1008 (Fla. 3d DCA Dec. 26, 2013) (reversing order vacating foreclosure sale)  


  • Work Product Doctrine: plaintiff ordered to produce documents for in camera review where failed to show primary motivating purpose behind withheld documents was to prepare or aid in possible or existing litigation – Hancock Bank v. Hill Street, L.L.C., No. 3:13–cv–71–J–25MCR (M.D. Fla. Dec. 24, 2013) (granting in part motion to compel)


  • Apparent Authority: title insurer not liable for independent title insurance issuing agent’s misrepresentations to insured lender in connection with closing where written agency agreement limited agent’s authority to issuing title insurance commitments, endorsements and other title assurances – Branch Banking & Trust Co. v. Fidelity Nat’l Title Ins. Co., No. 3:11-00301 (M.D. Tenn. Dec. 30, 2013) (memorandum opinion granting summary judgment) 
  • Apparent Authority: by dealing with known or purported agent, third party put on inquiry as to nature and scope of agent’s authority to act on behalf of principal and must use due care to discover same or suffer the consequences if exceeded – Branch Banking & Trust Co. v. Fidelity Nat’l Title Ins. Co., No. 3:11-00301 (M.D. Tenn. Dec. 30, 2013) (memorandum opinion granting summary judgment) 
  • Agent Liability: although issuing agent may wear two hats in closing real estate transaction and selling title insurance, title insurance company not liable for mishandling of real estate closing – Branch Banking & Trust Co. v. Fidelity Nat’l Title Ins. Co., No. 3:11-00301 (M.D. Tenn. Dec. 30, 2013) (memorandum opinion granting summary judgment) 
  • Misrepresentation: marked up title commitment cannot form basis of negligent or intentional misrepresentation claim because it does not represent a present or past fact, or supply false information but merely states terms and conditions on which insurer willing to issue policy – Branch Banking & Trust Co. v. Fidelity Nat’l Title Ins. Co., No. 3:11-00301 (M.D. Tenn. Dec. 30, 2013) (memorandum opinion granting summary judgment) 
  • Diminution in Value: jury verdict determining insurer did not breach policy by tendering $3,500 for diminution in value to insured estate due to easement but that actual diminution was $70,000 is irreconcilably inconsistent – Borowski v. Stewart Title Guar. Co., No. 2013AP537 (Wis. App. Dec. 27, 2013) (reversed and remanded) 
  • Diminution in Value: tendering value of land subject to easement may not capture actual diminution in value to entire estate due to easement – Borowski v. Stewart Title Guar. Co., No. 2013AP537 (Wis. App. Dec. 27, 2013) (reversed and remanded) 
  • Statute of Limitations: claims for breach of contract, promissory estoppel, breach of fiduciary duty and misrepresentation based on insurer’s alleged failure to defend and indemnify not barred by 3-year statute of limitations where complaint filed within 3 years of denial – Bank of America, N.A. v. Dakota Homestead Title Ins. Co., No. 13-1177 (10th Cir. Dec. 26, 2013) (affirming in part and reversing in part) 
  • Misjoinder: dismissal of defendants who settled with codefendants and assigned rights against plaintiff to co-defendants depends on validity of settlement agreement and, if invalid, dismissal could be improper and might not support efficiency or judicial economy – Travelers Indem. Co. of Connecticut v. Attorneys Title Ins. Fund, Inc., No. 2:13-cv-670 (M.D. Fla. Dec. 18, 2013) 
  • Agent Liability: insurer not liable for representations of issuing agent to insured that the insured benefited from right of way where agent acting outside scope of agency – McColgan v. Brewer, No. 516485 (N.Y. App. Dec. 19, 2013) (affirming summary judgment)


Written by:

Carlton Fields

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