Real Property, Financial Services, & Title Insurance Update: Week Ending October 20, 2017

by Carlton Fields
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REAL PROPERTY UPDATE

  • Foreclosure: witness may testify as to business records of another company so long as that witness can lay proper foundation of personal knowledge necessary to establish business records exception - Bayview Loan Servicing, LLC v. Kay, Case No. 1D16-4043  (Fla. 1st DCA October 18, 2017) (reversed and remanded)
  • Condominium/Appurtenances: beach club memberships of beach club located a mile away from condominium units in which condominium owners had no ownership interest were not appurtenances to the condominium units, despite declaration of condominium stating that such club memberships were appurtenances to the condominium units -Silver Beach Towers Property Owners Association, Inc. v. Silver Beach Investments of Destin, L.C., Case No. 1D16-4555 (Fla. 1st DCA October 18, 2017) (reversed and remanded).
  • Foreclosure: subsequent purchaser who takes title to property subject to mortgage may not join foreclosure action to challenge note and mortgage’s validity - Wells Fargo Bank, NA v. Rutledge, Case No. 2D16-244  (Fla. 2d DCA October 20, 2017) (reversed and remanded)
  • Tax Liens:  tax liens are superior to mortgage liens and are given priority in foreclosure actions pursuant to Florida Statutes section 197.122(1), and priority of tax liens imposed due to improper grant of homestead tax exemptions governed by section 197.122(1) - Miami-Dade County v. Lansdowne Mortgage, LLC, Case No. 3D16-1046 (Fla. 3d DCA October 18, 2017) (reversed and remanded)
  • Foreclosure: where landlord/tenant relationship exists independent of any rental agreement and where tenant claims equitable interest in property, ejectment, and not eviction, is proper remedy for landlord - Borjas v. Vergara, Case No. 3D16-1788  (Fla. 3d DCA October 18, 2017) (reversed and remanded).
  • Foreclosure: “[a] lost [mortgage note] can be enforced if the person seeking to enforce the instrument was entitled to enforce it when the loss occurred or acquired ownership of it from someone entitled to enforce it when the loss occurred, the loss was not the result of a transfer or seizure, and the instrument cannot reasonably be obtained” - Wisman v. Nationstar Mortgage, LLC, Case No. 5D16-3236 (Fla. 5th DCA October 20, 2017) (reversed and remanded)
  • Littoral Rights: “owners of real property abutting a lake have [certain] common law littoral rights, including the right to an unobstructed view of the lake”  - HagertySmith, LLC v. Gerlander, Case No. 5D16-3655  (Fla. 5th DCA October 20, 2017) (reversed and remanded). 

FINANCIAL SERVICES UPDATE

  • FDCPA: judgment debtor’s misrepresentation and over-collection claim under FDCPA barred by Rooker-Feldman doctrine and FDCPA's venue provision does not apply to postjudgment garnishment proceedings under California law – Muhammad v. Reese Law Group, Case No. 16cv2513-MMA (S.D. Cal. Oct. 12, 2017) (granting defendant’s motion for summary judgment and dismissing FDCPA claims)
  • FDCPA: affirming dismissal of FDCPA claim where default letter substantially complied with statute and defendant’s acquisition of debt after default insufficient allegation to make it a “debt collector” within meaning of statute – Kurtzman v. Nationstar Mortgage, LLC, No. 16-17236 (11th Cir. Oct. 10, 2017)
  • FDCPA: reversing in part dismissal of FDCPA claim because voicemail was “initial communication” requiring statutory disclosures – Hart v. Credit Control, LLC, No. 16-17126 (11th Cir. Sept. 22, 2017)

TITLE INSURANCE UPDATE

  • Title Agency Agreement Salvage: reversing summary judgment because title underwriter that did not have “unconditional right to settle” in indemnity provision of its agency agreement was required to prove settlement with insured lender was in good faith and reasonable in salvage action against title agent whose mistake caused the claim – Colonial Title Co., LLC v. Commonwealth Land Title Ins. Co., No. 12-16-00328-CV (Tex. App. Oct. 18, 2017)

Written by:

Carlton Fields
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