Real Property, Financial Services & Title Insurance Case Law Updates

by Carlton Fields
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I. FLORIDA STATE CASES - ILAN NIEUCHOWICZ & SCOTT FEATHER

  • Quiet Title: deed reservation of right-of-way in favor of State, which applied only to tracts of land of 10 acres or more, did not attach to title of landowner of less than 10 acres and, therefore, landowner entitled to judgment quieting title and declaring DOT had no interest in land - DOT v. Majorland, LLC, No. 2D12-6393 (Fla. 2d DCA Mar. 26, 2014) (affirming judgment)
  • Judgment Execution: trial court departed from essential requirements of law when it authorized execution of partial final judgment while interrelated claims remained pending -  Innovision Practice Group, P.A. v. Branch Banking & Trust Co., No. 2D13-1595 (Fla. 2d DCA Mar. 26, 2014) (partial final judgment quash)
  • Statute of Limitations: condominium association’s lawsuit improperly dismissed based on statute of limitations defense where trial court could not determine date causes of action accrued based on allegations of complaint - Grove Isle Ass’n, Inc. v Grove Isle Assocs., LLLP, No. 3D10-2312 (Fla. 3d DCA Mar. 26, 2014) (dismissal reversed)
  • Lease Interpretation: commercial lease that allowed tenant to renew only upon written consent of landlord, which could be withheld for any reason, was clear and unambiguous and, therefore, landlord entitled to evict tenant after lease term expired - Sunshine Gasoline Distributors, Inc. v. Biscayne Enterprises, Inc., No. 3D13-2326 & 3D13-2690  (Fla. 3d DCA Mar. 26, 2014) (affirmed)
  • Foreclosure: trial court’s dismissal of foreclosure action, with prejudice, as sanction for failure to comply with discovery orders was improper where homeowners made numerous confusing and cumulative discovery requests while failing to file a responsive pleading for two years, there was no evidence that the violations were caused by the bank itself, the homeowners suffered no prejudice, and the bank’s violations did not cause any significant problem with judicial administration -  PNC Bank, N.A. v. Duque, No. 4D12-1799 (Fla. 4th DCA Mar. 26, 2014) (reversed)
  • Deficiency Judgment: where total debt secured by a mortgage on property more than the fair market value of that property on date of foreclosure sale, court should grant a deficiency judgment and must consider sale price and any affidavits of appraisers submitted when borrower did not object to affidavits - Vantium Capital, Inc. v. Hobson, No. 4D13-393, 4D13-394 & 4D13-395 (Fla. 4th DCA Mar. 26, 2014) (reversed)
  • Vacate Foreclosure Sale: trial court grossly abused discretion in refusing to vacate foreclosure sale where undisputed evidence demonstrated lender’s law firm mistakenly failed to enter foreclosure bid for lender and property sold to third party - U.S. Bank, N.A. v. Vogel, No. 4D13-2132 (Fla. 4th DCA Mar. 26, 2014) (reversed)
  • Foreclosure: where section 22 of mortgage requires lender to give borrower notice of default, including notice of right to reinstate after acceleration, and lender’s notice specified only that partial payments will not serve to reinstate loan, such notice failed to substantially comply with section 22 of mortgage – Samaroo v. Wells Fargo Bank, No. 5D13-1585 (Fla. 5th DCA Mar. 28, 2014) (reversed)
  • Standing to Appeal: lender lacked standing to appeal judgment of foreclosure merely because it included findings of fact that could interfere with lender’s efforts to eventually recover damages under promissory note where foreclosure judgment was not a final ruling on the note - Centennial Bank v. NFP 1, LLC, Case No. 1D13-4421 (Fla. 1st DCA Mar. 24, 2014) (appeal dismissed)
  • Fraudulent Misrepresentation: final judgment in favor of co-mortgagor for fraud based on other co-mortgagor’s misrepresentation of his marital status improper because misrepresentation not material, and other co-mortgagor’s oral promise to make mortgage payments barred by statute of frauds – Cohen v. Corbitt, No. 1D13-0684 (Fla. 1st DCA Apr. 2, 2014) (reversing and remanding for entry of judgment in favor of appellant)
  • Lack of Prosecution: filing of motion for leave to amend sufficient to avoid dismissal of foreclosure complaint for lack of prosecution under Florida Rule of Civil Procedure 1.420(e) – Deutsche Bank Nat’l Trust Co. v. Mark Christian Gombert, as Co-Trustee, No. 1D13-2563 (Fla. 1st DCA Apr. 2, 2014) (reversing dismissal)
  • Standing: reversing summary judgment in bank’s favor because issue of material fact existed as to when bank took possession of promissory note – Bristol v. Wells Fargo Bank, Nat’l Ass’n, as Trustee, No. 4D12-4082 (Fla. 4th DCA Apr. 2, 2014) (reversed and remanded)
  • Summary Judgment While Counterclaim Pending: entry of final judgment of foreclosure improper because appellants’ counterclaim remained pending – Kushner v. Wyndsong Estates Homeowners Ass’n, Inc., No. 4D13-935 (Fla. 4th DCA Apr. 2, 2014) (reversed and remanded)

II. 11TH CIRCUIT CASES - NONE

III. TITLE INSURANCE CASES - CHRIS SMART

  • CPL: full credit bid rule applies to CPL claims and may limit those claims where the lender forecloses and purchases the collateral property for an amount equal to or greater than the unpaid principal and interest and costs of foreclosure  – Bank of America, N.A. v. First American Title Ins. Co., Case No. 307756 (Mich. App. March 27, 2014) (affirming in part, reversing in part, order granting summary disposition)
  • CPL: full credit bid rule overrides the indemnity provision of the CPL because the lender purchases subject to the condition of the property and stands in the same position as any other purchaser – Bank of America, N.A. v. First American Title Ins. Co., Case No. 307756 (Mich. App. March 27, 2014) (affirming in part, reversing in part, order granting summary disposition)
  • CPL: misrepresentation, intentional or otherwise, on HUD-1 settlement statement will not support liability under paragraph 2 of the CPL because the HUD-1 is not a document that belongs to the lender – Bank of America, N.A. v. First American Title Ins. Co., Case No. 307756 (Mich. App. March 27, 2014) (affirming in part, reversing in part, order granting summary disposition)
  • CPL: liability under paragraph 2 of the CPL may be implicated where the HUD-1 settlement statement records disbursement of the lender’s funds as part of a scheme in which the agent is involved or was aware of and failed to disclose – Bank of America, N.A. v. First American Title Ins. Co., Case No. 307756 (Mich. App. March 27, 2014) (affirming in part, reversing in part, order granting summary disposition)
  • CPL: where title insurer’s agent takes the 5th amendment, claimant was entitled to negative inference that the agent was an active participant or had knowledge of the fraudulent scheme alleged – Bank of America, N.A. v. First American Title Ins. Co., Case No. 307756 (Mich. App. March 27, 2014) (affirming in part, reversing in part, order granting summary disposition)

 

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