Real Property, Financial Services & Title Insurance Update: Weeks Ending July 31 & August 7, 2015

by Carlton Fields
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REAL PROPERTY UPDATE

  • Foreclosure: non-borrower owner of real property as tenants-in-common with borrower not required to sign mortgage for borrower to encumber only his interest in the property and non-borrower’s signature on mortgage reflected non-borrower’s agreement that borrower’s loan would be secured by mortgage on entire property - CitiMortgage v Turner, et al., Case No. 1D14-1137 (Fla. 1st  DCA August 4, 2015) (foreclosure judgment reversed)
  • Foreclosure/Standing: borrower could not sustain appeal of foreclosure judgment on issue of standing because borrower did not present entire trial record in the form of a transcript or appropriate substitute to prove lack of evidence presented at trial - Snowden v Wells Fargo Bank, as Trustee, Case No. 1D14-2529 (Fla. 1st DCA August 4, 2015) (foreclosure judgment affirmed)
  • Easement: summary judgment determining scope of disputed easement improper where intent and purpose could not be determined from the ambiguous language used in easement - H. A. Buie, Jr. v Bluebird Landing Owner’s Assoc., Inc., et al., Case No. 1D14-1185 (Fla. 1st DCA August 7, 20915) (summary judgment reversed and remanded)
  • Foreclosure/Conditions Precedent: lender’s substantial compliance with notice provision in mortgage (paragraph 22) was sufficient to satisfy condition precedent to commencement of foreclosure action – Green Tree Servicing v. Milam, No. 2D14-660 (Fla. 2d DCA July 29, 2015) (reversed and remanded)

TITLE INSURANCE UPDATE

  • Third-Party Beneficiary: a party identified by name in special escrow instructions is at a minimum a third-party beneficiary of the escrow and whether it may have a claim for breach of fiduciary duty against the agent is an issue of fact that precludes summary judgment - Orlando Millenia, LC v. United Title Services of Utah, Inc., Case No. 20130190 (Ut. July 17, 2015) (reversing summary judgment dismissing claims)
  • Statutory Liability: party dealing with a title company in a transaction involving the receipt and disbursement of escrow funds where a title insurance commitment has been ordered may have a claim against title insurer pursuant to Utah statute for title company’s breach - Orlando Millenia, LC v. United Title Services of Utah, Inc., Case No. 20130190 (Ut. July 17, 2015) (reversing summary judgment dismissing claims)
  • Escrow Agent Liability: does a title company owe a duty of care to third parties in the recording of legal instruments – Centurion Properties, III, LLC v. Chicago Title Ins. Co., Case No. 13-35727 (9th Cir. July 16, 2015)(certified question to Washington Supreme Court)
  • Indemnification: where indemnity agreement provides that any determination by title insurer that claim is covered is conclusive, indemnitor’s argument that claim is not covered under Exclusion 3(a) is not a defense to indemnification claim – First American Title Ins. Co. v. Spanish Inn, Inc., Case No. D067137 (Cal. App. July 16, 2015) (affirming summary judgment)
  • Declaratory Judgment: even though title insurer has assigned all of its claims against its insurers, issues as to the validity of the assignment preclude summary judgment – Travelers Indem. Co. of Connecticut v. Attorney’s Title Ins. Fund, Inc., Case No. 2:13-cv-670 (M.D. Fla. July 15, 2015) (order denying motion for summary judgment)

  • Expert Testimony: excluding testimony of expert based on case law, statute, and his own title insurance treatise, but allowing his testimony as to the industry standards and practices – Stewart Title Ins. Co. v. Credit Suisse, Case No. 1:11-cv-227 (D. Idaho July 13, 2015)(memorandum and order)
  • Settlement Statements: a lender’s misrepresentation in a HUD-1 settlement statement that a title company performed a bona fide title search and title examination, constitutes an affirmative act of concealment that warrants the application of equitable tolling to preserve plaintiffs’ TILA/HOEPA claims – In re Community Bank of Northern Virginia Mortg. Lending Practices Litigation, Case No. 13-4273 (3rd Cir. July 29, 2015) (affirming District Court’s class certification).
  • Coverage: because the title insurance policy unambiguously excludes coverage for the lender’s alleged defect, parol evidence is not admissible to alter or contradict the plain meaning of the policy, and therefore, the lender cannot prove its breach of contract claim against the title insurer – Peoples Bank v. Troutman, Case No. E2014-01150-COA-R3-CV (Tenn. Ct. App. July 27, 2015) (affirming summary judgment).
  • Subrogation: conventional subrogation does not operate to grant lien priority over earlier recorded liens, where plaintiff has not entered into an express agreement with the debtor to pay off the prior liens PBEI Holdings, LLC v. First Nat. Bank of Dieterich, No. 13CH27 (Ill. Ct. App. July 24, 2015) (reversing summary judgment)

 

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