Real Property, Financial Services & Title Insurance Case Law Update: Week Ending August 2, 2013

by Carlton Fields


  • Attorneys’ Fees: trial court did not abuse its discretion in awarding attorneys’ fees and costs of $74,429 against bank following dismissal of foreclosure action as sanction for bank’s failure to comply with discovery orders – HSBC Bank USA, N.A., v. Williams, No. 3D12-1784 (Fla. 3rd DCA July 31, 2013) (affirming order of attorneys’ fees)
  • Failure to Prosecute: any filing made after receiving notice for failure to prosecute constitutes record activity precluding dismissal for failure to prosecute – JPMorgan Chase Bank v. Sarmiento, No. 3D12-2766 (Fla. 3rd DCA July 31, 2013) (reversing order of dismissal)


  • Non-judicial Foreclosure: holder of security deed with power of sale entitled to initiate foreclosure proceedings even if it is not also holder of note – Harris v. Chase Home Finance, LLC, No. 4:11-cv-00116-HLM (11th Circ. July 31, 2013) (affirming dismissal of complaint)
  • Non-judicial Foreclosure: foreclosure notice proper where entity with full authority to amend, negotiate and modify terms of subject loan identified, whether that be the deed holder, note holder, attorney or servicing agent – Harris v. Chase Home Finance, LLC, No. 4:11-cv-00116-HLM (11th Circ. July 31, 2013) (affirming dismissal of complaint)
  • TILA: mortgage assignee had no obligation to inform borrowers of assignment which was given for administrative convenience only to allow assignee to foreclose and which did not cause assignee to become new owner of the subject debt – Reed v. Chase Home Finance, LLC, No. 1:11-cv-00412-WS-C (11th Circ. July 29, 2013) (affirming granting of summary judgment)


  • E&O: settlement agent’s errors and omissions policy excludes coverage for prior knowledge of matters likely to give rise to a future indemnification demand by agent’s title insurer – Lexington Ins. Co. v. Integrity Land Title Co., No. 12-1599 (8th Cir. July 31, 2013) (affirming summary judgment)
  • Novation: where lender combines an existing indebtedness secured by a mortgage insured by a title insurance policy with new debt and extinguishes the original note, all rights under lenders policy are terminated – Pekkola v. Fidelity Nat’l Title Ins. Co., No. 6:12-cv-02147 (D. Or. July 25, 2013) (granting summary judgment)
  • Bankruptcy: assignment of promissory notes that became non-dischargeable because of debtor’s fraud in obtaining loans did not violate Michigan rule that fraud claims are non-assignable – In re Pazdzierz, No. 111-2398 (6th Cir. June 10, 2013) (affirming reversal of bankruptcy court’s grant of summary judgment)
  • Title Agents: insurer responsible for its independent title insurance issuing agent’s violations of anti-inducement regulations based on statutory and common-law theories of agency – Chicago Title Ins. Co. v. Washington State Office of Ins. Comm’r, No. 87215-5 (Wash. Aug. 1, 2013) (reversing appellate court’s reversal of reviewing administrative judge)


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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