Real Property, Financial Services & Title Insurance Update: Week Ending February 20, 2015

by Carlton Fields


  • Sinkhole/Appraisal:  reversing non-final order compelling appraisal of sinkhole claim because one is not appropriate under section 631.54(3)(c), Florida Statutes – Fla. Ins. Guar. Ass’n, Inc. v. Frank, Case No. 2D13-5453 (Fla. 2d DCA Feb. 20, 2015) (reversing and remanding, and certifying questions of great public importance)
  • Litigation Privilege:  affirming order dismissing with prejudice plaintiffs’ claims because absolute privilege extended to statements published in the course of judicial proceedings – McCullough v. Kubiak, Case No. 4D13-4048 (Fla. 4th DCA Feb. 18, 2015) (affirmed in part, and reversed in part)
  • Forfeiture of Property/Eighth Amendment: forfeiture of a parcel of real property violated the excessive fines clause of the Eighth Amendment to the United States Constitution Agresta v. City of Maitland, Etc., Case No. 5D13-3577 (Fla. 5th DCA Feb. 20, 2015) (reversed and remanded)
  • MRTA: marketable record title act exception for easements does not apply to rights of way held in fee by department of transportation – Department of Transportation v.  Mid-Peninsula Realty Invest. Group, LLC, Case No. 2D14-305 (Fla. 2nd DCA Feb. 13, 2015) (affirming judgment)


  • Misrepresentation: title insurer justifiably relies on the representations in a borrower’s affidavit as to the status of title and a mortgage given by the borrower, even though title insurer is a professional experienced in title searches, may have been negligent in failing to identify the prior mortgage, and was on constructive notice of the prior mortgage recorded in the public records – in re Denise Roberts-Dude, Case No. 13-13620 (11th Cir. Feb. 11, 2015) (affirming judgment) 
  • Class Action: title insurer waived right to compel individual arbitration where discovery sought and resulting delays were inconsistent with seeking arbitration and where seeking arbitration at the outset would not have been futile – Kaufman v. First American Title Ins. Co., Case No. B248689 (Cal. App. Feb. 10, 2015)
  • Statute of Limitations: statute of limitations will not begin to run on a claim for reimbursement of defense costs under a title insurance policy while those defense costs continue to be incurred – Feduniak v. Old Republic National Title Co., Case No. 13-cv-02060 (N.D. Cal. Feb. 13, 2015) (order denying motion to dismiss)  
  • RESPA: CFPB pled claim based on allegation that joint venture title companies were not affiliated business arrangements within RESPA’s safe harbor provision, where the companies were set up by lawyers and owned by the lawyers and brokers and other real estate professionals, who would refer transactions to the lawyers, who in turn would have the jv title companies issue title insurance for the referred transactions and where the lawyers and the other real estate professionals would then receive profit distributions from the jv title companies, merely disguised kickbacks for the referrals according to the CFPB – CFPB v. Borders & Borders, PLC, Case No. 3:13-cv-1047 (W.D. Ky. Feb. 12, 2015) (memorandum opinion and order denying motion for judgment on pleadings)
  • Policy Liability: in the event of any litigation, title insurance policy defers liability until conclusion of the action, even if the litigation will not resolve all of the claims on the policy – JKF Enterprises LLC v. Old Republic National Title Ins. Co., Case No. 8:14-cv-2486 (M.D. Fla. Feb. 10, 2015) (order on motion to dismiss)


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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