Real Property & Title Insurance Update: Week Ending July 28 & August 4, 2017

by Carlton Fields


  • Foreclosure/Redemption: foreclosure sale conducted without knowledge of bankruptcy affirmed, but trial court orders denying mortgagor opportunity to redeem property before certificate of sale actually filed reversed and remanded – Coastwide Services, LLC v. Goldberg, No. 3D17-1162 (Fla. 3d DCA August 2, 2017) (affirmed in part, and reversed and remanded for further proceedings)
  • Foreclosure/Damages: testimony of witness for lender, combined with payment history and note, provided competent, substantial evidence of fixed interest rate and escrow disbursements – Fogarty v. Nationstar Mortg. LLC., No. 5D16-3193 (Fla. 5th DCA Aug. 4, 2017) (affirmed in part, reversed in part, and remanded with instructions)
  • Foreclosure: Section 48.23(1)(d), Florida Statues, only precludes enforcement of liens unrecorded at time lis pendens recorded and does not deprive foreclosing first mortgagee of subject matter jurisdiction where homeowners association has previously filed foreclosure action against homeowner and recorded lis pendens - Ditech Financial LLC v. White, Case No. 4D16-3213  (Fla. 4th DCA July 26, 2017) (reversed and remanded)
  • Foreclosure: where foreclosing bank fails to properly admit acceleration letter into evidence and acceleration letter is condition precedent to filing foreclosure action, defendant entitled to final judgment of involuntary dismissal - Delong v. Lakeview Loan Servicing, LLC et al., Case No. 5D16-903 (Fla. 5th DCA July 28, 2017) (reversed and remanded)


  • FDCPA: dismissing FDCPA claim because property management company that collected rent and late fees did not fall within statute's narrow definition of "debt collector" – Yatooma v. OP Property Mgmt LP, 2017 WL 3120259, Case No. 2:17-cv-02645 ODW (C.D. Cal. July 20, 2017).
  • FDCPA: dismissing FDCPA based on collector's response to debtor's motion to dismiss its collection action because response was protected "pleading" within meaning of statute – Lambe v. Allgate Financial, LLC, 2017 WL 3115755, Case No. 16-cv-24407 (S.D. Fla. July 20, 2017).
  • TCPA: dismissing junk fax class action where allegations failed to specify what role, if any, each defendant played in sending fax advertisement – Scoma Chiropractic, P.A. v. Jackson Hewitt Inc., 2017 WL 3149360 (M.D. Fla. July 25, 2017).
  • FDCPA and TILA: denying motion to dismiss FDCPA and TILA claims where borrower alleged it had not been late with its payments and that servicer improperly charged late fees, finding servicer’s argument that the note and mortgage, which were not attached to complaint, specifically authorized late fees insufficient to overcome well plead allegations in complaint – Rios v. Rushmore Loan Mgmt. Svcs. LLC, 2017 WL 3130442, Case No. 16-81973 (S.D. Fla. July 24, 2017).
  • FCRA: denying motion to dismiss FCRA claim where plaintiff alleged that mortgage lender was negligent in failing to investigate and discover that mortgage debt had been forgiven as a result of short sale before reporting negative information to credit reporting agencies – Owens-Benniefield v. Nationstar Mortgage LLC, 2017 WL 3149429, Case No. 8:17-cv-540 (M.D. Fla. July 25, 2017).


  • Escrow Agents: title agent holding construction escrow owed no duty to go beyond requirements of escrow agreement and conduct "informal inspections" of problem project – 231 W. Scott, LLC v. Lakeside Bank, 2017 IL App (1st) 161131, Case No. 1-16-1131 (Ill. 1st Dist. June 28, 2017).
  • Negligent Search: holding that insured customer of title searcher could recover in a negligent search action the fees it incurred in collateral litigation they had to file to defend their title, but that award should be reduced by amount of fee award satisfied by opposing party in that litigation – Eastern Shore Title Co. v. Ochse, 160 A.3d 1238 (Md. App. May 31, 2017).
  • Policy Coverage and Bad Faith: reversing summary judgment to title insurer where policy's meets and bounds description covered only one lot, but tax parcel ID including both created reasonable expectation of coverage, and negligence in preparing deed, as well as bad faith in claims handling were alleged – Michael v. Stock, 2017 WL 13269539, Case No. 1229 EDA 2016 (Pa. Sup. April 11, 2017).
  • Policy Coverage: granting summary judgment to title insurer where insured lender had conveyed property without warranty after non-judicial foreclosure to third party who then discovered a senior lien on the property – Hovannisian v. First American Title Ins. Co., 2017 WL 3141099, Case No. F072789 (Cal. App. 1st Dist. July 25, 2017).

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

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):

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.


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 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:

- 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.