Real Property, Financial Services, & Title Insurance Update: Week Ending May 22, 2020

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Real Property Update

  • Wrongful Foreclosure: Borrower could not sustain wrongful foreclosure claim against lender where certificate of sale had been vacated and certificate of title was never issued – Jallali v. Christiana Tr., No. 4D19-2717 (Fla. 4th DCA May 20, 2020)
  • Broker Commission: Business owner’s affidavit contesting authenticity of broker sale agreement created an issue of fact that precluded summary judgment in favor of broker – Atallah v. Transworld Bus. Brokers of Fla., LLC, No. 4D18-3804 (Fla. 4th DCA May 20, 2020) (summary judgment reversed and remanded

Financial Services Update

  • FDCPA / Standing: Mischaracterization of plaintiff’s debt constitutes an injurious withholding of information that the FDCPA requires the debt collector to disclose to plaintiff – Hill v. Resurgent Capital Servs., L.P., No. 1:20-cv-20372 (S.D. Fla. May 20, 2020) (denying motion to dismiss)
  • FDCPA / Preemption: Bankruptcy code does not preempt FDCPA where proof of claim allegedly mischaracterized the amount as principal – Hill v. Resurgent Capital Servs., L.P., No. 1:20-cv-20372 (S.D. Fla. May 20, 2020) (denying motion to dismiss)
  • FCRA / Standing: Plaintiff lacks Article III standing where complaint fails to allege “consumer disclosure report actually harmed — or presented a material risk of harm to — his concrete interests” – Hogue v. Silver State Schools Credit Union, No. 18-15204 (9th Cir. May 19, 2020) (affirming dismissal of complaint with instructions)
  • FDCPA / Sanctions / § 1692k(a)(3): Sanctions recoverable under FDCPA per section 1692k(a)(3) where plaintiff’s counsel “brings a case without its client’s knowledge or involvement” – Alcivar v. Enhanced Recovery Co., No. 1:17-cv-02275 (E.D.N.Y. May 20, 2020)

Title Insurance Update

  • Notice: Title insurer must demonstrate prejudice before a court can find insured is not entitled to reimbursement for fees as to an action for which notice was not given – Fansler v. N. Am. Title Ins. Co., No. N17C-09-015 (Del. Sup. Ct. May 18, 2020) (memorandum opinion denying title insurer’s motion for summary judgment)
  • Access: Issues as to whether insured’s claim based on a lack of access was not covered because (i) access easement had never been challenged, (ii) the survey was incorrect, and (iii) insured had knowledge about the problem, require a complete factual record for the court to rule on summary judgment – Fansler v. N. Am. Title Ins. Co., No. N17C-09-015 (Del. Sup. Ct. May 18, 2020) (memorandum opinion denying 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.

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