Real Property & Title Insurance Update: Weeks Ending May 13 & May 20, 2016

by Carlton Fields
Contact

REAL PROPERTY UPDATE

TITLE INSURANCE UPDATE

  • Arbitration: an insured is required to arbitrate its claims against title insurers when the claims relate to coverage under the title insurance policy and amount of insurance was under $2,000,000 as mandated by arbitration provision in policy - Perdue Properties, LLC v. USA, No. 15-CV-47 (DCB) (MTP) (S.D. Miss. May 16, 2016) (Memorandum Opinion compelling arbitration and dismissing third-party claims against title insurers)
  • Coverage: title insurer did not breach policy when insured sought defense and indemnity based upon quiet title action insured initiated to assert ownership over lot that was not included in description of property insured under policy - Krajewski v. Fidelity Nat’l Ins. Co., No. 1350 EDA 2015 (Pa. Super. Ct. May 11, 2016) (memorandum opinion affirming summary judgment in favor of title insurer)
  • Coverage: title insurer entitled to summary judgment on breach of contract claim when insured’s claim is based upon sewer easement that was expressly listed as exception on policy even if it may affect marketability of title and even if legal description in deed incorporates map by reference that conflicts with sewer easement - Cusumano v. Chicago Title Ins. Co., No. 155983-2013, (NY Sup. Ct. May 17, 2016) (memorandum opinion granting summary judgment in favor of title insurer)
  • CPL: If closing agent’s compliance with closing instructions would have caused lender not to make loan then losses would fall within scope of paragraph 1(c) of closing protection letter relating to collection and payment of funds due to lender - Fifth Third Mortg. Co. v. Kaufman, No. 12 C 4693 (N.D. Ill. May 14, 2016) (Memorandum Opinion)
  • CPL: closing agent’s alleged failure to comply with instruction to suspend transaction and notify lender that properties would not be owner-occupied if it had knowledge of facts, could trigger liability under paragraph 1(c) of closing protection letter relating to collection and payment of funds due to lender - Fifth Third Mortg. Co. v. Kaufman, No. 12 C 4693 (N.D. Ill. May 14, 2016) (Memorandum Opinion)
  • CPL: lender is required to show that claimed losses arose from closing agent’s conduct and a reasonable fact finder could find that closing agent’s failures resulted in lender making loans to straw buyers who defaulted and that lender would not have made loans because owner-occupancy was condition for subsequent sale of loans to Freddie Mac or Fannie Mae - Fifth Third Mortg. Co. v. Kaufman, No. 12 C 4693 (N.D. Ill. May 14, 2016) (Memorandum Opinion)
  • CPL: title insurer may contend at trial that market conditions are actual cause of lender’s losses on loans but it is insufficient basis for summary judgment when lender presented affidavits setting forth payments made to Freddie Mac in response to repurchase demands made to lender - Fifth Third Mortg. Co. v. Kaufman, No. 12 C 4693 (N.D. Ill. May 14, 2016) (Memorandum Opinion denying summary judgment)
  • Agency Agreement: An underwriter has no fiduciary duty to an agent and is not prevented from hiring the agent’s employees if the agency agreement between the agent and underwriter is mutually non-exclusive – Stewart Title Guar. Co. v. Kelley, 89 Mass. App. Ct. 1121 (2016) (memorandum and order affirming summary judgment, unpublished)
  • Agent/Attorney: Investigation of a property’s records is commonly performed by non-lawyers for real estate attorneys, but in Massachusetts the determination of marketable title is the practice of law and must be performed by an attorney – Stewart Title Guar. Co. v. Kelley, 89 Mass. App. Ct. 1121 (2016) (memorandum and order affirming summary judgment, unpublished)
  • Malpractice/Negligence: A law firm that conducts real estate closings in its capacity as a limited agent for an underwriter pursuant to an agency agreement is not relieved of its duty to use reasonable and appropriate care during title examination and issuance of a title policy, even if the firm retained a reputable title examiner to conduct the title review – Stewart Title Guar. Co. v. Kelley, 89 Mass. App. Ct. 1121 (2016) (memorandum and order affirming summary judgment, unpublished)
  • Negligence: An agent who submitted sufficient funds to satisfy an open line of credit was negligent by failing to maintain a copy of a letter directing the lender to close out the line of credit, where the borrower subsequently withdrew additional funds on the line of credit and the underwriter suffered a loss – Stewart Title Guar. Co. v. Kelley, 89 Mass. App. Ct. 1121 (2016) (memorandum and order affirming summary judgment, unpublished)

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.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields
Contact
more
less

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.