Weeks Ending July 5 & 12, 2013

by Carlton Fields


  • Insurance/Ambiguity: insurance policy ambiguity must be construed against insurer and in favor of coverage without resort to consideration of extrinsic evidence – Washington Nat’l Ins. Corp. v. Ruderman, No. SC12-323 (Fla. July 3, 2013) (answering certified question from 11th Circuit)
  • Foreclosure Sale: proof of inadequate bid price is not a necessary requirement in an action to set aside judicial foreclosure sale but is only one of the equitable factors to be considered – Arsali v. Chase Home Finance, LLC, No. SC12-600 (Fla. July 11, 2013) (affirming judgment vacating foreclosure sale)
  • Implied Warranties: implied warranties of fitness and merchantability apply to subdivision improvements that supply essential services to home – Moronda Homes, Inc. of FL v. Lakeview Reserve Homeowners Ass’n, Inc., Nos. SC10–2292, SC10–2336 (Fla. July 11, 2013) (reversing summary judgment)
  • Service of Process/Publication: in face of borrower’s motion to dismiss for improper service, trial court required to hold evidentiary hearing to determine whether bank conducted adequate search to support service by publication – Peysina v. Deutsche Bank Nat. Trust Co., No. 3D13-16 (Fla. 3rd DCA July 10, 2013) (reversing foreclosure judgment)
  • Eviction: tenant contesting eviction is required to deposit rent into court registry under Fla. Stat. § 83.232 in any type of case involving claim of possession, in order to insure against tenant occupying property rent-free during pendency of lawsuit – Misha Enterprises v. GAR Enterprises, LLC, No. 4D11–3619 (Fla. 4th DCA July 10, 2013) (reversing summary judgment)


  • FCCPA: lender may offset judgment for violations of FCCPA against amounts owing on pre-petition bankruptcy claim - In re Claudia Acosta-Garriga, No. 8:12-cv-00731-SDM (M.D. Fla. July 1, 2013) (reversing order of bankruptcy court and remanding) [Congratulations to Carlton Fields Shareholders Bob Quinn, Fentrice Driskell, and Kelly Bittick, who represented Chase Bank in this matter]
  • FDCPA: incorporating the FDCPA notice required by 15 U.S.C. 1692(g) into a mortgage foreclosure summons and complaint does not effectively convey notice of rights to the "least sophisticated consumer" - Battle v. Gladstone Law Group, P.A., No. 2:12-cv-14458-JEM (S.D. Fla. June 28, 2013) (order denying defendant's motion to dismiss)


  • Reformation: where genuine issue of material fact as to whether policy endorsement should be reformed based on mutual mistake, reformation claim must be considered before determining insurer’s duty to defend – Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257 (S.D. Fla. June 26, 2013) (order denying cross motions for summary judgment)
  • Reformation: parole evidence is available to establish a claim for reformation – Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257 (S.D. Fla. June 26, 2013) (order denying cross motions for summary judgment)
  • Duty to Defend: where amended complaint brings cause of action within policy exclusion, allegations of amended complaint control and insurer’s duty to defend terminates – Regions Bank v. Commonwealth Land Title Ins. Co., No. 11-23257 (S.D. Fla. June 26, 2013) (order denying cross motions for summary judgment)
  • Escrow Agent: escrow instructions do not necessarily need to be in writing – Strohbach v. United General Title Ins. Co., No. G046362 (Cal. App. June 27, 2013) (affirming judgment)
  • Escrow Agent: but for agent’s failure to follow lender’s closing instruction to procure commitment for performance bond, loan would not have closed; thus, agent’s defense that lender’s loss was caused by uncreditworthy borrower rather than malfeasance of agent fails – Strohbach v. United General Title Ins. Co., No. G046362 (Cal. App. June 27, 2013) (affirming judgment after trial)
  • Duty to Defend: title insurance policies do not protect against insured’s alleged tortious conduct in acquiring title to property and insurer has no duty to defend such claims – Liberty Nat’l Enterprises, L.P. v. Chicago Title Ins. Co., No. B234341 (Cal. App. June 13, 2013) (reversing judgment after trial)
  • Closing Agent: title company owes no tort duty under Washington law to refrain from recording instruments that may cause harm to third party's interests – Centurion Props., III, LLC v. Chicago Title Ins. Co., No. 2:12-cv-05130 (E.D. Wash. July 3, 2013) (order granting summary judgment)

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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