Real Property, Financial Services, & Title Insurance Update: Week Ending November 13, 2020

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Carlton Fields

Real Property Update
  • Foreclosure / Standing: affirming payment order entered pursuant to section 702.10(2), Florida Statutes, against a subsequent purchaser in favor of US Bank as the application of the statute was not retroactive – 78D Team, LLC v. US Bank, N.A., No. 3D19-1708 (Fla. 3d DCA Nov. 12, 2020) 
  • Foreclosure Sale / Attempt to Vacate Sale: purchaser did not demonstrate adequate grounds to vacate foreclosure sale where due diligence would have revealed a superior mortgage on the property and purchaser’s failure to investigate the status of the property before purchasing it at a foreclosure sale was attributable solely to purchaser – Can Financial, LLC v. Niklewicz, No. 4D19-3668 (Fla. 4th DCA Nov. 12, 2020) (reversing trial court’s order vacating foreclosure sale) 
  • Foreclosure / Deficiency: trial court improperly relied on borrower’s unsworn statements and hearsay in the form of dollar amounts contained in 1099-A forms in entering final judgment in favor of borrower in action to recover deficiency judgment against him – Dyck-O’Neal, Inc. v. Herman, No. 4D19-3311 (Fla. 4th DCA Nov. 12, 2020) (reversed and remanded) 
  • Foreclosure / Lien / Fees: condominium association failed to give proper notice of intent to record a second claim of lien under section 718.121(4), Florida Statutes, where prior notice given was for a lien that had been extinguished; association also failed to properly apply owner’s payments as they were received under section 718.116(3), Florida Statutes – Rajabi v. Villas at Lakeside Cond. Ass’n, Inc., No. 5D18-852 (Fla. 5th DCA Nov. 13, 2020) (reversing and remanding final judgment of foreclosure) 

Financial Services Update

  • FCRA / Employment Background Checks: plaintiff failed to state a claim under any of the FCRA provisions dealing with information and notices an employer is required to provide before taking an adverse action based on a consumer report because plaintiff’s complaint lacked allegations that the information that actually lead to his termination was, in fact, a consumer report as that term is defined in the FCRA – Rodriguez v. His House Children’s Home, No. 20-21134-Civ-Scola (S.D. Fla. Nov. 5, 2020) (granting defendant’s dismissal motion)
  • RESPA / Foreclosure: complaint lacked factual allegations regarding plaintiff’s submission of a loan modification application, which was fatal to RESPA claim – Gray v. Capstone Fin., No. 20-CV-0896 (GLS/CFH) (N.D.N.Y. Sept. 22, 2020) (recommending dismissal of RESPA claim)

Title Insurance Update

  • Class Action / Recording Overcharge: plaintiffs failed to show the requisite commonality and predominance under Rule 23(a) and (b) as the action would likely give rise to numerous mini-trials to determine whether each closing agent breached the closing service letter by committing fraud or misapplication of funds and whether each class member was refunded or offered a refund – Chassen v. Fidelity Nat’l Financial, Inc., No. 09-cv-00291 (D.N.J. Nov. 10, 2020) (memorandum and order denying class certification)   

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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