Real Property, Financial Services, & Title Insurance Update: Week Ending May 11, 2018

by Carlton Fields


  • Summary Judgment: incorporation of an affirmative defense by referencing “previously filed pleadings” does not obviate movant’s obligation to comply with particularity requirements mandated by rule 1.510(c) - Ambrogio v. McGuire, Case No. 2D17-2202 (Fla. 2d DCA May 11, 2018) (reversed and remanded).
  • Foreclosure/Standing: plaintiff’s affidavit in support of motion for summary judgment failed to address how affiant/employee of purported servicer derived personal knowledge about Plaintiff’s connection to subject note or how Plaintiff became owner or holder - Johnson v. Deutsche Bank National Trust Company Americas, as Trustee RALI 2007-QS1, No. 2D16-4262 (Fla. 2d DCA May 11, 2018) (reversed and remanded).
  • Leasing/Exculpatory Clause: exculpatory clause in lease held ambiguous and unenforceable where, in a single clause, it purports to relieve landlord from all liability and then concurrently imposes a duty on landlord to exercise ordinary care to prevent unauthorized opening of a safe - Obsessions in Time, Inc., et al. v. Jewelry Exchange Venture, LLLP, No. 3D16-2620 (Fla. 3d DCA May 9, 2018) (reversed and remanded).
  • Condominiums/Summary Judgment: dispute over ownership of parking spaces in condominium unable to be resolved on summary judgment due to genuine issues of material facts, as only evidence that purportedly established a transfer of ownership of parking spaces was a letter that was not properly authenticated - Gidwani v. Roberts et al., No. 3D17-677 (Fla. 3d DCA May 9, 2018) (reversed and remanded).
  • Homeowner’s Association/Prevailing Party: plaintiff considered prevailing party and awarded fees and costs where jury found association breached its governing documents and granted injunctive claim in equity, but awarded no damages to plaintiff - Coconut Key Homeowner’s Association, Inc. v. Gonzales, No. 4D17-739 &1749 (Fla. 4th DCA May 9, 2018) (affirmed in part, reversed in part and remanded).


  • FDCPA: denying a motion to dismiss FDCPA claim and finding that repossession agencies can be considered “debt collector” when acting as “enforcers of security interests” - Wright v. Santander Consumer USA, Inc., No. 6:18-cv-263-Orl-22KRS (M.D. Fla. May 1, 2018)
  • BAPCPA: denying Chapter 7 Trustee’s motion to intervene in action to recover tax return in case filed pre-BAPCPA, holding Trustee does not get the benefit of Bankruptcy Code § 1115 because any refund not property of bankruptcy estate where Debtor disgorged money post-petition, giving rise to a credit on post-petition tax return - In re Steffen, 583 B.R. 284, 286 (M.D. Fla. Bankr. 2018)
  • FCRA and FDCPA: granting motion to dismiss FCRA claim on grounds that “duties imposed on furnishers of credit information under § 1681s-2(a) are enforceable only by federal or state agencies” and there is no private right of action; granting motion to dismiss FDCPA claim because alleged debt collector provided plaintiff with a copy of itemized monthly billing statement in response to plaintiff’s notices of dispute and itemized monthly billing statement “is all that is required to verify a debt under § 1692g” - Kozlowski v. Bank of America, N.A., et al., No. 1:18-cv-00131-DAD-EPG (E.D. Cal. May 7, 2018)
  • FDCPA and TILA: dismissing FDCPA claim because “mortgage servicers seeking to recover their own debt, are not debt collectors covered by the Fair Debt Collections Practices Act”; dismissing TILA claim for failure to allege “in any way how she was damaged by the lack of notice” - Kashef v. Wells Fargo Bank, N.A., et al., No. 17-cv-06576-JST (N.D. Cal. May 2, 2018)
  • FDCPA: affirming summary judgment in favor of defendant and holding that FDCPA does require validation notices to include transitional language (i.e. language explaining that a request for payment does not limit a consumer’s right to challenge a debt within thirty days) - Stuppiello v. Southwest Credit Systems, L.P., No. 17-55061 (9th Cir. May 1, 2018).
  • FCRA: granting, in part, defendant’s motion to dismiss and strike class allegations, court found that to bring a negligence claim under FCRA, “Plaintiff must plead and prove that Defendant’s alleged FCRA violation caused her to suffer actual damages”; court further recognized that injunctive relief is consistently denied to private litigants under FCRA (by federal district courts in the Ninth Circuit) and statutory and punitive damages are not recoverable for negligent as opposed to willful violations of the FCRA - Gadomski v. Equifax Information Services, LLC, No. 2:17-cv-00670-TLN-AC (E.D. Cal. May 7, 2018)
  • FCRA and FAA: finding bankruptcy discharge did not render arbitration provision in underlying credit agreement void and compelling arbitration for debtor’s FCRA claim - Delgado v. Ally Financial, Inc., No. 3:17-cv-02189-BEN-JMA (S.D. Cal. May 8, 2018)
  • TILA: dismissing a claim under TILA where account renewal disclosure was included with a periodic statement in compliance with TILA and Regulation Z - Singer v. American Express Centurion Bank, No. 17-CV-2507 (S.D.N.Y. May 9, 2018)


  • Negligence: actions for negligence and breach of oral contract against abstractor who was an agent of title company brought 10 years after they accrued were time-barred and precluded by the integration clause in the title insurance policy – Union St. Tower, LLC v. First Am. Title Co., Case No. 2018 N.Y. Slip. Op. 03390 (N.Y. App. 2018) (affirming the order granting abstractor’s motion to dismiss).
  • Bankruptcy: real property vendor who gave an affidavit to the title that failed to disclose a judgment was not entitled to a discharge because of false pretenses and false representation – In Re Fakuri, Case No. 16 B 28526 (N.D. Ill. 2018) (memorandum opinion granting title insurer’s motion for summary judgment).

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.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.