Real Property, Financial Services & Title Insurance Update: Weeks Ending July 10, 17 & 24, 2015

REAL PROPERTY UPDATE

  • Eviction/Summary Judgment: Error to grant summary judgment where plaintiff failed to refute multiple affirmative defenses including an assertion that the eviction would cause an inequitable forfeiture based on its approximate $2,000,000 investment in the property. Atria Group, LLC v. One Progress Plaza II, LLC, No. 2D14-3916 (Fla. 2d DCA July 22, 2015) (reversed and remanded)
  • Foreclosure/Standing: Original note was insufficient to prove plaintiff’s standing at the inception of the case because there was no evidence indicating when the blank endorsement was placed onto the note and the assignment, despite containing a purported effective date before the complaint was filed, it was executed after the complaint was filed and the witness could not verify when the assignment took place.George Kenney v. HSBC Bank USA, National Association, as Trustee for the Holders of Deutsche Alt-A Securities, Inc., Mortgage Loan Trust, Series 2005-6, et al. No. 4D13-4165 (Fla. 4th DCA July 22, 2015) (reversed)
  • Foreclosure/Lost Note: Plaintiff failed to prove who lost the note, when it was lost, who had the right to enforce the note when it was lost and failed to produce any evidence of ownership at the time of loss.Wells Fargo Bank, N.A. v. Robinson et al., No. 5D14-2819 (Fla. 5th DCA July 24, 2015) (affirmed)
  • Jurisdiction/Post-Foreclosure Assessment Liability: trial court lacked jurisdiction to determine whether lender fell within safe harbor provision of Fla. Stat. s. 718.116(1)(b) following foreclosure where foreclosure judgment contained general reservation of jurisdiction but did not specifically reserve jurisdiction to determine amount owed to condominium association – Central Park A Metrowest Condominium Assoc., Inc. v. AmTrust REO I, LLC, 5D14-1511 (Fla. 5th DCA July 17, 2015) (order on post-judgment motion quashed)
  • Foreclosure; Standing:  Plaintiff’s trial testimony did not establish that the promissory note was endorsed at the time the complaint was filed, and thus, Plaintiff had not established its standingKelly v. Bank of New York Mellon, Case No. 1D13-2778 (Fla. 1st DCA July 14, 2015) (reversing final judgment of foreclosure)
  • Class Action; Reissue Rate:  Affirming summary judgment in favor of a title insurer against a large certified class of Floridians that were allegedly overcharged for title insurance policiesHiggins v. Commonwealth Land Title Ins. Co., Case No. 1D14-2284 (Fla. 1st DCA July 14, 2015) (affirming summary judgment)
  • Foreclosure; Standing:  Bank failed to establish it had standing because it did not show that it received the instrument from a holder with enforcement rights St. Clair v. U.S. Bank Nat’l Ass’n, as Trustee, Case No. 2D14-2111 (Fla. 2d DCA July 17, 2015) (reversed and remanded)
  • Deed Restrictions; Contracting Parties’ Intent:  Reversing final summary judgment that found property was no longer subject to certain deed restrictions of record because disputed factual issues existed regarding the contracting parties’ intent Fiore v. Hilliker, Case No. 2D14-1872 (Fla. 2d DCA July 15, 2015) (reversed and remanded)
  • Foreclosure; Reverse Mortgage:  Entry of final judgment of foreclosure was improper because defendant was a co-borrower, as contemplated under the mortgage, and because she had not died, a condition precedent to plaintiff’s right to foreclose had not occurred Smith v. Reverse Mortg. Solutions, inc., Case No. 3D13-2261 (Fla. 3d DCA July 15, 2015) (reversed and remanded with instructions to determine whether property was co-borrower’s principal residence)
  • Partition; Property Outside Florida:  Trial court lacked jurisdiction to direct personal representative to partition George real estate; personal representative would have to open ancillary proceeding in Georgia to accomplish partition Brown v. Brown, Case No. 4D12-2446 (Fla. 4th DCA July 15, 2015) (affirmed in part, reversed in part, and remanded for further proceedings)
  • Foreclosure; Damages:  Affirming trial court’s finding that plaintiff had standing to foreclose, and admission of payment history into evidence under business records exception to hearsay, but concluding that plaintiff did not properly establish the amount owed Peuguero v. Bank of Am., N.A., Case No. 4D13-3210 (Fla. 4th DCA July 15, 2015) (reversed and remanded for determination of the amounts owed) 
  • Foreclosure sale; due process: A purchaser has a protectable legal interest in a parcel purchased at a foreclosure sale; consequently, the trial court violated the purchaser’s due process rights when it vacated the sale without providing the purchaser with notice and an opportunity to be heard. – Residential Mortg.Servicing Corp. v. Winterlakes Prop. Owners Ass’n, Inc., Case No. 4D14-1109 (Fla. 4th DCA July 8, 2015) (reversed and remanded)

TITLE INSURANCE UPDATE

  • Class Action: affirming summary judgment in favor of a title insurer against a large certified class of Floridians who alleged the insurer had overcharged them for title insurance policiesHiggins v. Commonwealth Land Title Ins. Co., Case No. 1D14-2284 (Fla. 2nd DCA 2015) (per curium affirmed)
  • Apparent Authority: where plaintiff cannot show that a title insurer was aware of the acts that led the plaintiff to believe that the title issuing agent was acting as the insurer’s agent for purpose of disbursing construction loan escrow, the plaintiff cannot maintain a cause of action against insurer based on apparent authority Haselow v. Vilas Title Service, Inc., Case No. 2014AP1599 (Wis. App. July 14, 2015) (affirming summary judgment dismissing claims against insurer)

 

Written by:

Carlton Fields
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