Real Property, Financial Services, & Title Insurance Update: Week Ending May 22, 2020

Real Property Update 

• Wrongful Foreclosure: Borrower could not sustain wrongful foreclosure claim against lender where certificate of sale had been vacated and certificate of title was never issued – Jallali v. Christiana Tr., No. 4D19-2717 (Fla. 4th DCA May 20, 2020)
• Broker Commission: Business owner’s affidavit contesting authenticity of broker sale agreement created an issue of fact that precluded summary judgment in favor of broker – Atallah v. Transworld Bus. Brokers of Fla., LLC, No. 4D18-3804 (Fla. 4th DCA May 20, 2020) (summary judgment reversed and remanded

Financial Services Update 

• FDCPA / Standing: Mischaracterization of plaintiff’s debt constitutes an injurious withholding of information that the FDCPA requires the debt collector to disclose to plaintiff – Hill v. Resurgent Capital Servs., L.P., No. 1:20-cv-20372 (S.D. Fla. May 20, 2020) (denying motion to dismiss)
• FDCPA / Preemption: Bankruptcy code does not preempt FDCPA where proof of claim allegedly mischaracterized the amount as principal – Hill v. Resurgent Capital Servs., L.P., No. 1:20-cv-20372 (S.D. Fla. May 20, 2020) (denying motion to dismiss)
• FCRA / Standing: Plaintiff lacks Article III standing where complaint fails to allege “consumer disclosure report actually harmed — or presented a material risk of harm to — his concrete interests” – Hogue v. Silver State Schools Credit Union, No. 18-15204 (9th Cir. May 19, 2020) (affirming dismissal of complaint with instructions)
• FDCPA / Sanctions / § 1692k(a)(3): Sanctions recoverable under FDCPA per section 1692k(a)(3) where plaintiff’s counsel “brings a case without its client’s knowledge or involvement” – Alcivar v. Enhanced Recovery Co., No. 1:17-cv-02275 (E.D.N.Y. May 20, 2020)

Title Insurance Update

• Notice: Title insurer must demonstrate prejudice before a court can find insured is not entitled to reimbursement for fees as to an action for which notice was not given – Fansler v. N. Am. Title Ins. Co., No. N17C-09-015 (Del. Sup. Ct. May 18, 2020) (memorandum opinion denying title insurer’s motion for summary judgment)
• Access: Issues as to whether insured’s claim based on a lack of access was not covered because (i) access easement had never been challenged, (ii) the survey was incorrect, and (iii) insured had knowledge about the problem, require a complete factual record for the court to rule on summary judgment – Fansler v. N. Am. Title Ins. Co., No. N17C-09-015 (Del. Sup. Ct. May 18, 2020) (memorandum opinion denying title insurer’s motion for summary judgment)