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A weekly summary of select real property and title insurance cases and recent developments, presented by Carlton Fields' Real Property Litigation practice group.
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May 15, 2017 2:42 PM | Permalink

REAL PROPERTY UPDATE:

  • Foreclosure/Conditions Precedent: plaintiff not required to given notice under section 559.715 as condition precedent to foreclosure, and plaintiff’s default notice to borrowers pursuant to paragraph 22 of mortgage was sufficient – U.S. Bank, N.A., as Trustee for RFMSI 2006-S10 v. Adams, No. 2D15-4202 (Fla. 2d DCA May 12, 2017) (reversing summary judgment and remanding)
  • Enforcement of Restrictions: defendants’ commercial activity on property violated restrictive covenant, and substantially competent evidence supported trial court’s injunction against defendants to enjoin nuisance – Clark v. Bluewater Key RV Ownership Park Prop. Owners Ass’n, Inc., No. 3D16-1645 (Fla. 3d DCA May 10, 2017) (affirming final judgment granting declaratory and injunctive relief)
  • Negligence/Statute of Limitations: statute of limitations for subrogation action stemming from roof leak allegedly caused by negligent repairs on insured premises began to run on date water damage allegedly occurred, not date of repairs – Companion Prop. & Casualty Group v. Built Tops Building Servs., Inc., No. 3D16-2044 (Fla. 3d DCA May 10, 2017) (reversing dismissal and remanding for further proceedings)
  • Construction of Easement: trial court incorrectly concluded that ingress/egress, utility, and drainage easement over certain property could only be used by named grantee in the deed and no other person, including grantee’s invitees – Kovach v. Holiday Springs RV, LLC, No. 5D15-2335 (Fla. 5th DCA May 12, 2017) (reversed and remanded)

TITLE INSURANCE UPDATE:

  • No updates this week.
May 9, 2017 11:28 AM | Permalink

REAL PROPERTY UPDATE

  • Foreclosure: final summary judgment in borrower’s favor inappropriate where borrower merely asserted that lender mistakenly filed copy of original note with court, instead of original, and where borrower failed to establish that plaintiff could not prevail at trial - ALS Maxim I LLC v. Katsenko, Case No. 2D15-5153 (Fla. 2d DCA May 3, 2017) (reversed and remanded)
  • Foreclosure: where foreclosing bank’s witness unable to testify as to procedures used to “board” payment histories onto successor bank’s computers, proper remedy was to remand for further proceedings, rather than dismiss action - Evans v. HSBC Bank, USA, N.A., Case No. 2D15-433 (Fla. 2d DCA May 5, 2017) (reversed in part, affirmed in part, and remanded)
  • Property Taxes: long-term lease that is not perpetually renewable does not result in taxable fee simple ownership interest for lessee of real estate pursuant to Accardo v. Brown, 139 So. 3d 848 (Fla. 2014) - Garcia v. Dadeland Station Associates, Ltd., Case No. 3D16-1698 (Fla. 3d DCA May 3, 2017) (affirmed).
  • Foreclosure: where improperly served defendant files motion for protective order and subsequent motion for sanctions related thereto, that defendant has not sought the “type of affirmative relief that would amount to a submission to the trial court’s jurisdiction” - Bornstein v. The Bank of New York Mellon, Case No. 4D16-2908 (Fla. 4th DCA May 3, 2017) (reversed and remanded)
  • Restrictive Covenants: short-term vacation rentals did not violate restrictive covenants restricting use of property to residential purposes where renters used the property for residential living; owner’s income from rental did not convert use to business. Santa Monica Beach Property Owners Assoc., Inc. v Acord, et al., Case No. 1D16-4782 (Fla. 1st DCA April 28, 2017)
  • Foreclosure/Standing: lender established standing where original note and blank-endorsed allonge was properly authenticated, was introduced into evidence at trial, and was identical to the copy of the note and blank-endorsed allonge attached to the complaint. Bank of New York Mellon v Heath, Case No. 4D16-1988 (Fla. 4th DCA April 26, 2017)
  • Deficiency/Jurisdiction: holding that a party cannot pursue a separate action for deficiency judgment where the foreclosure court reserved jurisdiction to enter a deficiency; certifying conflict with 2nd DCA, 3rd DCA, 4th DCA and 5th DCA. Dyck-O’Neal, Inc. v Lanham, Case No. 1D16-1624 (Fla. 1st DCA April 24, 2017)
  • Foreclosure/Standing: assignment of mortgage signed while lawsuit was pending did not negate the possibility that lender had standing at the inception of the case. HSBC Bank USA, Trustee v Alejandre, Case No. 4D15-2750 (Fla. 4th DCA April 26, 2017)
  • Foreclosure/Due Process: trial court violated borrower’s due process rights by refusing borrower’s request to present evidence following close of lender’s prima facie case. Dobson v U.S. Bank National Assoc., Trustee, et al., Case No. 5D16-200 (Fla. 5th DCA April 28, 2017)

TITLE INSURANCE UPDATE

  • Duty to Defend: it is “nonsense” that insurer may claim it was unaware that there might be coverage under a policy where insured title agency did not challenge denial of coverage under errors and omissions policy, and insureds are not required to lodge an exception or request reconsideration to a denial – Title Indus. Assurance Co., R.R.G. v. First American Title Ins. Co., Case No. 15-3310 (7th Cir. Dec. 10, 2017) (affirming summary judgment against liability insurer)
  • Duty to Defend/Estoppel: under Illinois law, an insurer uncertain of its obligations may defend under a reservation of rights or seek declaratory relief, but if it abandons its insured at the onset where it should have defended its insured, the insurer has breached its duty, is estopped from invoking policy defenses to indemnify, and may be liable for judgments or settlements that claimants obtain against the insured – Title Indus. Assurance Co., R.R.G. v. First American Title Ins. Co., Case No. 15-3310 (7th Cir. Dec. 10, 2017) (affirming summary judgment against liability insurer)
  • Duty to Defend/Exclusions: exclusion withholding coverage for “dishonest, fraudulent, criminal, malicious or intentional wrongful acts” of insured title agency is not triggered when title insurance company alleges agency committed errors and omissions that could arise from mere negligence, which allegations were legal conclusions that did not permit insurer to avoid a duty to defend – Title Indus. Assurance Co., R.R.G. v. First American Title Ins. Co., Case No. 15-3310 (7th Cir. Dec. 10, 2017) (affirming summary judgment against liability insurer)
  • Duty to Defend/Exclusions: fraud count against third party with unexplained relationship to insured title agency, without more, does not permit liability insurer to invoke exclusion for “dishonest, fraudulent, criminal, malicious or intentional wrongful acts” under errors and omissions policy – Title Indus. Assurance Co., R.R.G. v. First American Title Ins. Co., Case No. 15-3310 (7th Cir. Dec. 10, 2017) (affirming summary judgment against liability insurer)
  • Duty to Defend/Exclusions: liability insurer not permitted to preemptively decline coverage at outset of litigation based on facts it did not and could not know, where underlying complaints alleged several theories of recovery and any theory was within potential coverage of an errors and omissions policy – Title Indus. Assurance Co., R.R.G. v. First American Title Ins. Co., Case No. 15-3310 (7th Cir. Dec. 10, 2017) (affirming summary judgment against liability insurer)
  • Duty to Defend/Prior Knowledge Provision: liability insurer’s failure to assert prior knowledge provision of title agency’s errors and omissions policy until summary judgment stage required insurer to provide justification for delay in asserting exclusion, in an action brought by insurer seeking declaratory relief where title insurance company appeared as a defendant seeking recovery for insured title agency’s wrongdoing – Title Indus. Assurance Co., R.R.G. v. First American Title Ins. Co., Case No. 15-3310 (7th Cir. Dec. 10, 2017) (affirming summary judgment against liability insurer)
  • Duty to Defend/Waiver: both a long delay in asserting a policy defense and the “mend-the-hold” doctrine in which an insurer changes the basis for denial of a claim may constitute a waiver of the defense upon a showing by a claimant that it has been prejudiced by the delay – Title Indus. Assurance Co., R.R.G. v. First American Title Ins. Co., Case No. 15-3310 (7th Cir. Dec. 10, 2017) (affirming summary judgment against liability insurer)
April 24, 2017 3:25 PM | Permalink

REAL PROPERTY UPDATE

  • Foreclosure/Attorneys’ Fees: mortgage foreclosure plaintiffs seeking attorney’s fees must support their claim with competent, substantial evidence of the number of hours worked and evidence that those hours and hourly rate are reasonable - Henderson v. Onewest Bank FSB, No. 1D16-2670 (Fla. 1st DCA April 18, 2017) (reversed and remanded in part).
  • Foreclosure/Standing: plaintiff failed to provide evidence that indorsee had intent to transfer any interest to plaintiff when note was transferred into trust - Shaffer v. Deutsche Bank National Trust, as Indenture Trustee for American Home Mortgage Investment Trust 2006-1, Mortgage Backed Notes, Series 2006-1, No. 2D14-4205 (Fla. 2d DCA April 19, 2017) (reversed and remanded).
  • HOA/Summary Judgment: trial court erred in entering final summary judgment in favor of homeowners' association, where conflicting affidavits evinced disputed issues regarding owner's property and her compliance with recorded restrictions - Sexton v. Southfield Subdivision Maintenance and Property Owners' Association, Inc., No. 2D16-3567 (Fla. 2d DCA April 19, 2017) (reversed and remanded).
  • Foreclosure/Lack of Prosecution: “close enough” is not “good enough” where plaintiff’s good cause showing was filed 4 days before hearing, as opposed to minimum 5 day requirement under rule 1.420(e) - Held v. U.S. Bank National Association, as Trustee for C-BASS 2007-CB7 Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-CB7, et al., No. 4D15-499 (Fla. 4th DCA April 19, 2017) (reversed and remanded).
  • Foreclosure/Standing: plaintiff, as nonholder in possession, failed to prove series of transactions through which it acquired note starting with first holder of note - Powell v. Wells Fargo Bank, N.A. as Trustee for Structured Asset Mortgage Investments II, Inc., GreenPoint Mortgage Funding Trust 2006-AR2, Mortgage Pass-Through Certificates, Series 2006-AR2, No. 4D15-3013 (Fla. 4th DCA April 19, 2017) (reversed and remanded).
  • Foreclosure/Appeal: order granting summary judgment for borrowers and dismissing case without prejudice to lender’s filing a new foreclosure action was final appealable order - Bank of New York Mellon v. Swain, No. 5D16-139 (Fla. 5th DCA April 21, 2017) (dismissed).
  • Foreclosure/Conditions Precedent: plaintiff’s notice of default substantially complied with notice provision contained in paragraph 22 of mortgage – U.S. Bank Trust, N.A., etc. v. Wellman, No. 3D15-1368 (Fla. 3d DCA Apr. 12, 2017) (reversed and remanded)
  • Dismissal with Prejudice: trial court improperly dismissed with prejudice pro se plaintiff’s complaint against lender for, among other things, unauthorized entry and conversion of personal property, and plaintiff should have been permitted to amend – Hanna-Mack v. Bank of Am., N.A., No. 3D16-1897 (Fla. 3d DCA Apr. 12, 2017) (reversed and remanded to permit amendment of complaint)
  • Foreclosure/Assignment of Rents: where there was no agreement between the parties to assign rents or other basis for sequestering rents, and the rents were not the subject of the litigation, trial court lacked authority to order that rents be deposited into court registry – UV Cite III, LLC v. Deutsche Bank Nat’l Trust Co., as Trustee, No. 3D16-2341 (Fla. 3d DCA Apr. 12, 2017) (reversed and remanded)
  • Foreclosure/Attorneys’ Fees: party that successfully prevailed in obtaining dismissal with prejudice of foreclosure action based on lack of standing pursuant to contract sued upon not entitled to an attorneys’ fees award pursuant to contract’s attorneys’ fee provision – Nationstar Mortg. LLC v. Glass, No. 4D15-4561 (Fla. 4th DCA Apr. 12, 2017) (denying motion for fees, and denying without prejudice request for costs)
  • Foreclosure/Reverse Mortgage: language in reverse mortgage was patently ambiguous regarding whether spouse of decedent was a “borrower” under its terms, and extrinsic evidence was necessary to resolve this factual question – Nationstar Mortg. Co. v. Levine, No. 4D16-615 (Fla. 4th DCA Apr. 12, 2017) (reversing entry of summary judgment)
  • Foreclosure/Business Records Hearsay Exception: bank satisfied predicate necessary for admission of prior servicers’ loan payment histories, having presented detailed testimony regarding the “on-boarding” process utilized by current servicer to verify information received from prior servicers – Bank of New York Mellon f/k/a Bank of New York Successor Trustee v. Vessels, No. 5D15-4248 (Fla. 5th DCA Apr. 13, 2017) (reversed and remanded for new trial on issue of damages)

TITLE INSURANCE UPDATE

  • Duty to Defend: duty to indemnify is a contractual one dictated by title policy provisions, and insurer is required to indemnify insured under Section 9(b) of an ALTA 2006 Extended Lender’s policy where deed was invalid and unenforceable as an unauthorized conveyance in a Ponzi scheme – Banner Bank v. First American Title Ins. Co., Case No. 2:16-CV-00200-BSJ (D. Utah. Apr. 12, 2017)(granting summary judgment in favor of insured)
  • Duty to Defend: title defect not exempt from coverage under Exclusion 6 of an ALTA 2006 Extended Lender’s policy for unauthorized conveyances that violate the Securities Act of 1933 and Exchange Act of 1934, and Rules 10(b) and 10b-5 because the Exclusion only applies to fraudulent conveyances or transfers pursuant to federal bankruptcy, state insolvency or similar creditors’ rights laws – Banner Bank v. First American Title Ins. Co., Case No. 2:16-CV-00200-BSJ (D. Utah. Apr. 12, 2017)(granting summary judgment in favor of insured)
  • Implied Covenant of Good Faith and Fair Dealing: insurer breached implied covenant of good faith and fair dealing when it failed to diligently investigate, fairly evaluate, and promptly and reasonably act in rejecting or settling claim for indemnity as a result of unauthorized conveyances, where insurer took four months to respond and had not investigated or evaluated the insured’s reading of claim documents – Banner Bank v. First American Title Ins. Co., Case No. 2:16-CV-00200-BSJ (D. Utah. Apr. 12, 2017)(granting summary judgment in favor of insured)
  • Paragraph 15(b) – Applicability: summary judgment should not have been entered in favor of insurer based upon paragraph 15(b) of policy when insured also sued for negligent provision of real estate transaction services and policy did not include property at issue. Michael v. Stock, Case No. 1229 EDA 2016 (Pa. Sup. Ct. Apr. 11, 2017) (vacating award of summary judgment in favor of title insurer).
  • Estoppel: insured’s argument that insurer’s failure to properly search title records and properly issue policy insuring entirety of property purchased by insured precluded summary judgment on coverage issue in favor of insurer. Michael v. Stock, Case No. 1229 EDA 2016 (Pa. Sup. Ct. Apr. 11, 2017) (vacating award of summary judgment in favor of title insurer).
  • Bad faith: Pennsylvania’s bad faith statute creates independent cause of action to insured which is not dependent on success of coverage dispute and thus trial court’s reasoning regarding existence of coverage was not determinative of insured’s bad faith claims. Michael v. Stock, Case No. 1229 EDA 2016 (Pa. Sup. Ct. Apr. 11, 2017) (vacating award of summary judgment in favor of title insurer).
  • Defective Description Exception: insurer had no duty to defend because defective description exception – that expressly stated insurer could not insure a description based on acreage – excludes coverage for any claims related to legal description. Fischer Sand & Aggregate, LLP v. Old Republic National Title Ins. Co., Case No. A16-0988 (Minn. Ct. App. Apr. 10, 2017).
  • Survey Exception: insurer was entitled to summary judgment when an accurate survey would have disclosed boundary and insured failed to provide survey to clear exception. Fischer Sand & Aggregate, LLP v. Old Republic National Title Ins. Co., Case No. A16-0988 (Minn. Ct. App. Apr. 10, 2017).
April 12, 2017 11:05 AM | Permalink

REAL PROPERTY UPDATE

  • Foreclosure/Deficiency Judgment: where a foreclosing bank acquires in rem jurisdiction via service by publication in underlying foreclosure action, bank may still seek personal service over an individual to pursue deficiency judgment - Dyck-O’Neal, Inc. v. Meikle, Case No. 4D15-3911 (Fla. 4th DCA April 5, 2017) (reversed and remanded)
  • Foreclosure: foreclosing bank’s witness does not need to know when blank indorsement placed on note where copy of already-indorsed note attached to foreclosure complaint; further, bank’s witness does not need to have personal knowledge of acceleration letter being sent where witness may testify that bank’s business records show that acceleration letter was sent - JPMorgan Chase Bank N.A. v. Pierre, Case No. 4D16-1119 (Fla. 4th DCA April 5, 2017) (reversed and remanded)
  • Foreclosure/Intervention: “Whoever purchases property that is the subject of a foreclosure lawsuit in which a mortgagee has previously filed a lis pendens is a purchaser pendent lite . . . [and] is not entitled to intervene or otherwise be made a party to the ongoing lawsuit” - Investor Trustee Services, LLC v. DLJ Mortgage Capital, Inc., Case No. 5D15-3082 (Fla. 5th DCA April 7, 2017) (affirmed)
  • Failure to State Cause of Action: borrower could move for involuntary dismissal for failure to state a cause of action and prove an agreement at close of trial, but was not entitled to relief where mortgage note and short form mortgage provided prima facie evidence of agreement - Khleif v Bankers Trust Co. of California, N.A., as Trustee, Case No. 2D15-4853 (Fla. 2nd DCA March 31, 2017) (affirmed)
  • Jurisdiction: order denying borrower’s motion to quash constructive service was a non-appealable, nonfinal order because order did not determine personal jurisdiction over borrower and only in rem relief was sought - Archer v U.S. Bank National Association, Case No. 5D16-1970 (Fla. 5th DCA March 31, 2017)
  • Foreclosure/Objection to Sale: trial court was required to conduct an evidentiary hearing on borrower’s timely filed objections before clerk of court could issue certificate of title following judicial sale of borrower’s property - McKnight v Chase Home Finance, LLC, Case No. 4D16-2645 (Fla. 4th DCA March 29, 2017)
  • Foreclosure/Lost Note: lender’s witness proved loss of original note and entitlement to reestablish same by testifying that (1) the lender could not locate the note after it was sent to its counsel, (2) its procedure was to contact counsel in an attempt to locate the lost note, (3) it followed the procedure in this case, and (4) a copy of the lost note was presented into evidence - Wells Fargo Bank, N.A. v Ayers, et al., Case No. 4D16-288 (Fla. 4th DCA March 29, 2017) (dismissal reversed)

TITLE INSURANCE UPDATE

  • Duty to Defend: duty to defend under title policy was triggered by filing of complaint challenging invalidity of mortgage rather than filing of summary judgment papers by insured asserting same arguments as to validity of mortgage. Lupu v. Loan City, LLC, Case No. 12-4456 (E.D. Pa. Mar. 27, 2017) (Memorandum Opinion granting summary judgment in favor of Stewart Title Guaranty Company)
  • Duty to Defend (Scope): notwithstanding Massachusetts case law as well as language of policy limiting scope of duty to defend, current Pennsylvania law requires title insurer to defend all the claims in lawsuit if insurer has duty to defend one claim. Lupu v. Loan City, LLC, Case No. 12-4456 (E.D. Pa. Mar. 27, 2017)(Memorandum Opinion)
  • Escrow Agent – Duties: escrow agent had no further duty to search for and disclose recorded documents and was permitted to rely on title commitment and thus escrow agent did not breach any duty to buyers of property for failing to find Declaration of Restrictive Covenants relating to septic tank on property belonging to adjoining lot owner. Eleazer v. First American Title Ins. Co., Case No. 75097-6-I (Wash. Ct. App. Mar. 27, 2017) (Unpublished Opinion)
  • Policy Exclusion 4(a): title insurer properly denied coverage under Exclusion 4(a) when insured owners had pre-closing knowledge of septic tank and had agreed to provide easement for tank to adjoining lot owner - Eleazer v. First American Title Ins. Co., Case No. 75097-6-I (Wash. Ct. App. Mar. 27, 2017) (Unpublished Opinion)
  • Bad Faith: title insurer did not act in bad faith in waiting to defend insured until filing of Fourth Amended Complaint when Court agreed with insurer’s interpretation of when duty arose and when insurer relied on valid precedent from another jurisdiction to argue that duty to defend was limited - Lupu v. Loan City, LLC, Case No. 12-4456 (E.D. Pa. Mar. 27, 2017) (Memorandum Opinion)
  • Third Party Beneficiary: a purchaser of property is not a third party beneficiary entitled to enforce an owner’s title insurance policy lender under Maryland law, where the title policy provides that an “insured” includes successors to the title of the Insured by operation of law as distinguished from purchase . . .” – McRae v. Westcor Land Title Ins. Co., Case No. RWT-16-2332 Case (D. Mar. Mar. 17, 2017)(granting motion to dismiss)
  • Double Recovery Doctrine: FDIC is not precluded from pursuing title agent for damages under Nevada’s double recovery doctrine, where the FDIC settled a separate action with an appraisal company for allegedly inflating property values and the settlement does not apportion any amount recovered by the FDIC to loan at issue – FDIC v. Nevada Title Co., Case No. 2:14-cv-01567-JAD-GWF (D. Nev. Mar. 30, 2017)(denying motion for summary judgment)
  • Breach of Closing Instructions: WAMU’s closing instructions which stated that agent was not authorized to pay fees to a broker or third party were not ambiguous, and required closing agent not to close escrow or disburse funds without contacting WAMU and waiting for further instructions – FDIC v. Nevada Title Co., Case No. 2:14-cv-01567-JAD-GWF (D. Nev. Mar. 30, 2017)(denying motion for summary judgment)
  • Breach of Closing Instructions: FDIC not entitled to summary judgment for breach of closing instructions where title agent failed to inform WAMU regarding involvement of third parties, where the FDIC could not demonstrate that disbursement of $1.2 million to third parties was material – FDIC v. Nevada Title Co., Case No. 2:14-cv-01567-JAD-GWF (D. Nev. Mar. 30, 2017)(denying motion for summary judgment)
  • Breach of Closing Instructions/HUD-1: FDIC not entitled to summary judgment where it was not clear that escrow officer received information on disbursement of closing funds to third parties after estimated HUD-1 was submitted to WAMU – FDIC v. Nevada Title Co., Case No. 2:14-cv-01567-JAD-GWF (D. Nev. Mar. 30, 2017)(denying motion for summary judgment
March 29, 2017 1:37 PM | Permalink

REAL PROPERTY UPDATE

TITLE INSURANCE UPDATE

  • Constructive Trust: a lender is not entitled to a constructive trust or an equitable mortgage to create priority over a federal tax lien, where lender did not have a valid mortgage or protected security interest when federal tax lien was imposed – Bank of New York Mellon v. Ashley, Case No. 14-2914 (D. Mar. March 20, 2017)(denying motion for summary judgment as to constructive trust and equitable mortgage)
  • Equitable Subrogation/Federal Tax Liens: a lender is entitled to a first priority lien over a federal tax lien by reason of equitable subrogation, where borrower refinanced prior to the imposition of the tax lien and proceeds of the lender’s invalid mortgage discharged a prior valid mortgage – Bank of New York Mellon v. Ashley, Case No. 14-2914 (D. Mar. March 20, 2017)(granting motion for summary judgment as to equitable subrogation)
  • Tax Liens: city may not foreclose tax liens, when city records erroneously indicated liens were satisfied at time of purchase and borrower ‘s title search indicated there were no open tax liens – Equity Inv. & Mortg. Co. v. Smith, Case No. 58583/2015 (N.Y. Ct. App. March 21, 2017)(granting motion for summary judgment)
March 20, 2017 12:32 PM | Permalink

REAL PROPERTY UPDATE

  • Coequal Liens: trial court properly authorized tax collector to issue tax certificates subject to community development district’s assessment liens – Villages of Avignon Community Dev. Dist. v. Manatee Cnty. Tax Collector, No. 2D16-1048 (Fla. 2d DCA Mar. 17, 2017) (affirmed but question of great public importance certified)
  • Foreclosure/Association’s Lien: because association’s claim of lien dated back to 1989 declaration, its recorded interest predated bank’s 2009 lis pendens, and therefore association’s 2011 lien foreclosure action was not barred by bank’s mortgage foreclosure action (although association’s action inferior to foreclosure of first mortgage) – Fountainspring II Homeowners Ass’n, Inc. v. Veliz, No. 4D15-3408 (Fla. 4th DCA Mar. 15, 2017) (reversed and remanded)
  • Code Enforcement Liens/Statute of Limitations: applicable statute of limitations for filing suit to foreclose code enforcement lien is twenty years; trial court erred in ruling otherwise – City of Riviera Beach v. J & B Motel Corp., No. 4D16-0174 (Fla. 4th DCA Mar. 15, 2017) (reversed and remanded)
  • Foreclosure/Standing: because JPMorgan’s indorsement was an anomalous indorsement, plaintiff’s possession of note did not make it a holder and, therefore, plaintiff needed to, but did not, establish standing by showing it was a nonholder in possession of note with rights of a holder – PennyMac Corp. v. Frost, No. 4D16-262 (Fla. 4th DCA Mar. 15, 2017) (affirmed)
  • Foreclosure/Original Note: trial court erred (1) in denying original note’s admissibility because placement of undated blank endorsement on note after filing of complaint did not affect note’s authenticity and enforceability, and (2) by involuntarily dismissing bank’s action before bank completed its presentation of evidence – U.S. Bank Nat’l Ass’n as Trustee v. Roseman, No. 4D16-876 (Fla. 4th DCA Mar. 15, 2017) (reversed and remanded)
  • Foreclosure/Condition Precedent: HUD regulation requiring face-to-face meeting prior to foreclosure is condition precedent to foreclosure - Harris v. U.S. Bank National Association, a Trustee for the Certificate Holders of the LXS 2007-16N Trust Fund, No. 1D15-2022 (Fla. 1st DCA March 10, 2017) (affirmed).
  • Foreclosure/Condition Precedent: affidavit in opposition to summary judgment created a genuine issue of material fact where there was a factual issue as to applicability of exception to HUD regulation requiring face-to-face meeting when mortgaged property not within 200 miles of Lender, its servicer, or branch office of either - ARC HUD I, LLC v. Ebbert et al., No. 2D15-4848 (Fla. 2d DCA March 8, 2017) (reversed and remanded)
  • Ejectment: trial court erred in entering order of ejectment, which operated as de facto grant of summary judgment, without Plaintiff filing proper summary judgment motion establishing entitlement to relief sought in pleadings, and that disproves conclusively defendant's entitlement to relief - Abundant Living Citi Church, Inc., v. Abundant Living Ministries, Inc., et al., No. 3D16-2649 (Fla. 3d DCA March 10, 2017) (reversed)
  • Equitable lien/Homestead exemption: plaintiff entitled to foreclose equitable lien imposed to prevent unjust enrichment of defendant in that it secured monies paid to satisfy pre-existing mortgage on homestead property - Flinn v. Doty, as Personal Representative of the Estate of Robert Flinn, deceased, No. 4D-2424 (Fla. 4th DCA March 8, 2017) (affirmed in part and reversed in part)

TITLE INSURANCE UPDATE

  • Res Judicata: title insurer barred from re-litigating equitable subrogation and reformation claims in its own name where it had controlled prosecution of first action brought by loan servicer that lacked standing to bring first suit, resulting in judgment in favor of borrower - The Bank of New York Mellon, Trustee v. Heinz Otto Georg, Case No. 2396 (Md. Ct. Spec. App. March 10, 2017)(unreported)
  • Duty to Defend: duty to defend not triggered under policy based upon mere assertions of public right of way when there was no third party claiming interest against title of insured or any specified loss caused by hypothetical encumbrance - Osprey Landing, LLC v. First American Title Ins. Co., Case No. Lin-16-298 (Me. March 9, 2017)
  • Marketability of Title: mere possibility of future claims for public easements does not render title unmarketable and thus trigger insurer’s duty to defend - Osprey Landing, LLC v. First American Title Ins. Co., Case No. Lin-16-298 (Me. March 9, 2017)
March 7, 2017 8:54 AM | Permalink

REAL PROPERTY UPDATE

  • Foreclosure: foreclosing bank’s allegation that borrowers were in a continuing state of default sufficient to satisfy five-year statute of limitations even though stated initial default date was more than five years prior to foreclosure complaint - Desylvester v. Bank of New York Mellon, Case No. 2D15-5053  (Fla. 2d DCA February 22, 2017) (affirmed)
  • Appellate Jurisdiction:  denial of motion to vacate writ of possession not an appealable non-final order because not set forth in Rule 9.130(a)(3) - Nacius v. One West Bank, FSB, Case No. 4D16-2853 (Fla. 4th DCA February 22, 2017) (appeal dismissed)
  • Foreclosure; Intervention: intervention by purchaser of real property after final judgment of foreclosure entered should not have been allowed; trial court departed from essential requirements of law in permitting purchaser to intervene - Federal National Mortgage Association v. Gallant, Case No. 4D16-3152  (Fla. 4th DCA February 22, 2017) (quashing order and remanding)
  • Foreclosure; Paragraph 22: summary judgment improper where foreclosing bank failed to include mention of its paragraph 22 acceleration letter in affidavit in support of summary judgment to show it complied with conditions precedent to foreclose - Galloway v. Suntrust Bank, et al., Case No. 5D14-2878  (Fla. 5th DCA February 24, 2017) (reversed and remanded)

TITLE INSURANCE UPDATE

  • Damages/Statute of Limitations:  under Kansas law, causes of action for negligence and breach of fiduciary duty against title company accrue and are “reasonably ascertainable” only when plaintiff first claims ownership interest in mineral rights and defendant stops receiving royalty payments for such mineral rights, even though plaintiff suffered legal injury when title company recorded deed six years earlier without reserving mineral rights – LCL, LLC. V. Falen, Case No. 115,434 (Kan. Dist. Ct. App. Feb. 17, 2017)(reversing summary judgment)
  • Offer of Judgment/Attorneys’ Fees: title insurer entitled to attorneys’ fees based upon rejected offer of judgment because real issue in case was money damages despite count for injunctive relief - Kahama VI, LLC v. HJH, LLC, Case No. 11-CV-2029-T-30TBM (M.D. Fla. Feb. 13, 2017)
  • Equitable of Subrogation: Corporation that pledged property as security for corporate officer’s personal loan entitled to equitable subrogation to enforce lien of officer’s lender because corporation paid officer’s loan involuntarily based upon reasonable belief that payment was necessary for corporation’s protection - Holley v. Holley & Taylor, Inc., Case No. 11-15-00046 (Tex. Ct. App. Feb. 10, 2017)
February 14, 2017 1:12 PM | Permalink

REAL PROPERTY UPDATE

  • Foreclosure: where foreclosing bank, who purchased debt from original mortgagee, failed to establish standing to enforce lost note “through evidence of a valid assignment, proof of purchase of the debt, or evidence of an effective transfer,” summary judgment in favor of foreclosing bank improper Houk v. PennyMac Corp. , Case No. 2D15-2583  (Fla. 2d DCA February 10, 2017) (reversed and remanded).
  • Foreclosure/Standing:  where foreclosing bank filed original note bearing blank indorsement with original complaint, it sufficiently established standing to enforce note -U.S. Bank, N.A. v. Becker, Case No. 4D15-4615 (Fla. 4th DCA February 8, 2017) (reversed and remanded).
  • Foreclosure/Removal: trial court lacked jurisdiction to render final summary judgment where defendants had filed a notice of removal to federal court and federal court had not yet remanded case back to trial court - Mawhinney v. 998 SW 144th Court Rd, LLC, Case Nos. 5D15-2185; 5D15-2819  (Fla. 5th DCA February 10, 2017) (reversed and remanded).

 TITLE INSURANCE UPDATE

  • Full Credit Bid: Section 2 of the 1992 ALTA lender’s policy applies when a lender purchases property by full or partial-credit bid at a trustee’s sale – Equity Income Partners, LP v. Chicago Title Ins. Co., Case No. CV-16-0162-CQ (Ariz. Feb. 7, 2017)(answering certified question from 9th Circuit Court of Appeals)
  • Full Credit Bid: a lender’s full or partial-credit bid at a trustee’s sale is not a “payment”  or “payment made” under a 1992 ALTA lender’s policy because to do so would render Section 2 meaningless and contravene Arizona public policy of protecting debtors – Equity Income Partners, LP v. Chicago Title Ins. Co.,, Case No. CV-16-0162-CQ (Ariz. Feb. 7, 2017)(answering certified question from 9th Circuit Court of Appeals)
  • Full Credit Bid: a lender’s full or partial-credit bid at a trustee’s sale does not terminate coverage under Section 2(a)(i), reduce coverage under Section 2, or any possible liability under Section 7 of a 1992 ALTA lender’s policy – Equity Income Partners, LP v. Chicago Title Ins. Co.,, Case No. CV-16-0162-CQ (Ariz. Feb. 7, 2017)(answering certified question from 9th Circuit Court of Appeals)
February 10, 2017 11:40 AM | Permalink

REAL PROPERTY UPDATE:

  • Foreclosure/Sufficiency of Notice: although lender’s notice of default did not expressly state that property could be sold in foreclosure, it substantially complied with notice provision (paragraph 22) of mortgage because it advised mortgagors they would lose their interest in and rights to property in event of foreclosure and notice contained the other necessary disclosures - Wells Fargo Bank, N.A. v Guess, Case No. 2D15-4222 (Fla. 2d DCA February 1, 2017)(summary judgment reversed).
  • Foreclosure: promissory note need not be attached to complaint to state claim on note and for foreclosure of mortgage, where mortgage and material terms of note were attached or incorporated in complaint - Garron, LLC v Buchwald, Case No. 5D15-2279 (Fla. 5th DCA February 3, 2017) (reversed and remanded)
  • Foreclosure/Standing: lender required to prove it was authorized by lender’s predecessor to sign assignment of mortgage to itself, as attorney-in-fact for predecessor-lender, when borrower had asserted standing defense challenging lender’s authority and validity of assignment - Bonafide Properties, LLC v E-Trade Bank, et al., Case No. 5D16-136 (Fla. 5th DCA Feb. 3, 2017) (reversed and remanded) 

TITLE INSURANCE UPDATE:

  • CPL/Damages: court did not abuse discretion in awarding damages that used value of property at time of foreclosure as offset against outstanding loan amount - Aurora Loan Services v. Hirsch, 170 Conn. App. 439 (Conn. Ct. App. Jan. 31, 2017) (judgment affirmed)
  • CPL/Damages: court properly refused to award attorneys’ fees because CPL only provides for recovery of actual losses incurred in connection with closing - Aurora Loan Services v. Hirsch, 170 Conn. App. 439 (Conn. Ct. App. Jan. 31, 2017) (judgment affirmed)
  • CPL/Prejudgment Interest:  court did not abuse discretion in awarding prejudgment interest from date of filing of complaint rather than date of closing - Aurora Loan Services v. Hirsch, 170 Conn. App. 439 (Conn. Ct. App. Jan. 31, 2017) (judgment affirmed)
  • Bona Fide Purchaser: void judgment in chain of title has effect of nullifying subsequent transfer to bona fide purchaser and thus bona fide purchaser took title to property subject to prior lien that had been cancelled via judgment that was set aside after transfer of title - OC Interior Services, LLC v. Nationstar Mortgage, LLC, Case No. D070680 (Cal. Ct. App. Jan. 31, 2017) (reversed and remanded)
February 3, 2017 1:40 PM | Permalink

REAL PROPERTY UPDATE

  • Foreclosure/Lis Pendens: a proper reading of Florida Statute section 48.23(1)(d) is that “when a foreclosure action is prosecuted to a judicial sale, that sale discharges all liens, whether recorded before the final judgment or after, if the lienor does not intervene in the action within 30 days” after the recording of the notice of lis pendens - Ober v. Town of Lauderdale-by-the-Sea, No. 4D14-4597 (Fla. 4th DCA January 25, 2017) (reversed and remanded). 
  • Foreclosure/Deficiency: Florida Statute section 559.715 of the Florida Consumer Collection Practices Act’s requirement that notice must be given “at least 30 days before any action to collect the debt” does not apply in deficiency actions because it is not an action to collect consumer debt - Dyck O’Neal, Inc., v. Ward, No. 2D15-2989 (Fla. 2d DCA January 27, 2017) (reversed and remanded). 
  • Foreclosure: it is necessary to surrender the original note into evidence to remove it from the stream of commerce and prevent the negotiation of the note to another person as the promissory note is a negotiable instrument - Heller v. Bank of America, NA, No. 2D14-3530 (Fla. 2d DCA January 27, 2017) (reversed and remanded). 
  • Foreclosure/Deficiency: guarantors are not collaterally estopped from challenging the amount of deficiency in subsequent deficiency actions, where guarantors were not named in the underlying foreclosure action - Romagnoli v. SR Acquisitions − Homestead, LLC, etc., et al., No. 3D16-386 (Fla. 3d DCA January 25, 2017) (reversed). 
  • Eminent Domain: expert appraisal testimony offered by owner under “development approach” method for determination of fair and just value was appropriate as it was based on the actual value of the property at the time of the taking if sold for its highest and best use - City of Sunny Isles Beach, etc, v. Cavalry Corp., etc., et al., No. 3D15-1420 (Fla. 3rd DCA January 25, 2017) (affirmed).

TITLE INSURANCE UPDATE

  • Collateral Estoppel: where issue of validity of plaintiff’s title to property was decided in her favor as a result of previous construction defect litigation, plaintiff is collaterally estopped from arguing validity of title in a breach of contract and bad faith action against title insurer in a new action, where title insurer was not a party to previous litigation and plaintiff is attempting a second bite at the apple by re-litigating the same issue – Gillard v. Fidelity Nat’l Title Ins. Co., Case No. D067604, (Cal Ct. App., Jan. 24, 2017) (unpublished opinion) (reversing trial court opinion)
  • Statute of Limitations: claims against title insurer barred by the statute of limitations because insurer addressed insured’s claim eight years earlier and thus plaintiff had discovered the loss or damage suffered – Grill v. Ticor Title Ins. Co., Case No. C070730, (Cal Ct. App., Jan. 24, 2017) (unpublished opinion) (affirming dismissal)
  • Collateral Estoppel: where trial court took judicial notice of claims in current litigation that were adjudicated adversely to plaintiff in prior litigation, issues decided in prior litigation bar subsequent action against title insurer – Edwards v. First American Title Ins. Co., Case No. B264490 (Cal Ct. App. Jan. 19, 2017) (unpublished opinion) (affirming judgment and awarding fees)
  • Administrative Review: title insurer must exhaust administrative remedies concerning Insurance Commissioner’s investigatory hearing before seeking relief in Indiana’s courts – First American Title Ins. Co. v. Robertson, 65 N.E. 3d 1045 (In. Ct. App. 2016) (affirming dismissal)
  • Claim Preclusion: title insurer not permitted to pursue an action for declaratory relief and for prohibition and mandate after receiving an unfavorable result in a prior appeal of a proceeding pertaining to an administrative order and procedures act – First American Title Ins. Co. v. Robertson, 65 N.E. 3d 1045 (In. Ct. App. 2016) (affirming dismissal)
  • Created, Suffered or Assumed: title insurer is not liable to insured where insured entrusted insurer’s policy issuing agent for disbursement of loan funds and the agent misappropriated funds and failed to satisfy prior mortgages, because the insured assumed or agreed to the prior mortgages and also failed to make a claim for vicarious liability – Northwest Savings Bank v. Fidelity Nat’l Title Ins. Co., Case No. 451 WDA 2016 (Pa. Ct. App., Jan. 20, 2017) (non-precedential, unreported opinion) (affirming dismissal)
  • MRTA: Ohio’s Marketable Title Act operates to extinguish interests and claims in existence prior to effective date of root of title unless properly noted subsequent to root of title, where the root of title is the most recent conveyance to be recorded as of a date forty years prior to the time when marketability is being determined – Spellman Outdoor Advertising Serv., LLC v. Ohio Turnpike and Infrastructure Comm., Case No. 2015–P–0081, --- N.E.3d ---- (Oh. Ct. App. Sep. 30, 2016) (affirming summary judgment)
January 25, 2017 3:21 PM | Permalink

REAL PROPERTY UPDATE

  • Foreclosure/Vacating Judgment: estate failed to either allege or prove any basis under Rule 1.540 to vacate final judgment of foreclosure to which it had consented – The Bank of N.Y. Mellon v. Estate of Peterson, No. 2D16-2405 (Fla. 2d DCA Jan. 18, 2017) (reversing and remanding for reinstatement of final judgment).
  • Foreclosure/Claim for Surplus Funds: sec. 45.031, Fla. Stat. requires that any person claiming a right to surplus funds file a claim with the clerk no later than sixty days after the foreclosure sale itself, not within sixty days of the certificate of sale, and, therefore, bank’s claim for surplus funds untimely  – The Bank of N.Y. Mellon, as Trustee v. Glenville, No. 2D15-5198 (Fla. 2d DCA Jan. 20, 2017) (affirmed)
  • Foreclosure/Vacating Judgment: trial court lacked jurisdiction to entertain borrower’s motion to vacate foreclosure judgment, which asserted lender’s counsel committed fraud on court in representing that borrower and her counsel were not present in the court room for trial when their case was called, because borrower’s motion was filed over a year after entry of judgment and, therefore, was untimely under rule 1.540(b)(3) – Romero v. Wells Fargo Bank, N.A., as Trustee, No. 2D15-5270 (Fla. 2d DCA Jan. 20, 2017) (vacating and remanding with instructions)
  • MRTA/Attorneys’ Fees: court properly awarded attorneys’ fees under sec. 712.08, Fla. Stat., providing for costs, fees, and damages where any person has filed a false preservation notice under MRTA, where HOA  had no authority to file preservation notice, regardless of HOA’s lack of intent to file false claim –Sand Lake Hills Homeowners Ass’n, Inc. v. Busch, No. 5D16-21 (Fla. 5th DCA Jan. 20, 2017) (affirming in part, reversing in part, and remanding)

TITLE INSURANCE UPDATE

  • No Updates This Week
January 19, 2017 11:16 AM | Permalink

REAL PROPERTY UPDATE

  • Foreclosure: where a valid mortgage properly encumbers the subject property, an incorrect deed and a reformation of deed count are not fatal to a foreclosure action - Heartwood 2, LLC v. Dori, Case No. 3D15-2576  (Fla. 3d DCA January 11, 2017) (reversed and remanded).
  • Affirmative Defenses: where tenant raised affirmative defenses to enforcement of lease action, and landlord failed to reply to said affirmative defenses, landlord’s affidavit in support of summary judgment was insufficient where it failed to factually refute the affirmative defenses - Genuinely Loving Childcare, LLC v. Bre Mariner Conway Crossings, LLC, Case No. 5D15-4168 (Fla. 5th DCA January 13, 2017) (Reversed in part, affirmed in part).

TITLE INSURANCE UPDATE

  • Exclusion: mortgagee’s loss under title insurance policy properly denied because such loss was “created, suffered, assumed or agreed to” by the insured, where mortgagee wired funds to escrow account for attorney for borrowers with instructions to perform certain duties on its behalf as settlement agent and agent misappropriated funds – Plaza Home Mortgage, Inc. v. Fidelity Nat’l Title Ins. Co., Case No. 2015-00930, Dec. 28, 2016, __ N.Y.S.3d __ (N.Y. App. Div.) (affirming summary judgment).
January 10, 2017 5:08 PM | Permalink

REAL PROPERTY UPDATE

  • Foreclosure – Involuntary Dismissal: although lender’s witnesses failed to explain lender’s loan payment history statement, the statement reflected the principal amount due and had been admitted into evidence, which was sufficient to establish a prima facie case on damages and avoid involuntary dismissal. Bayview Loan Servicing, LLC v Luciano del Lupo, Case No. 4D15-1088 (Fla. 4th DCA Jan. 4, 2017)(dismissal reversed and remanded).
  • Lis Pendens: section 48.23, Florida Statutes, does not bar an Association from filing separate action to foreclose claim of lien for unpaid assessments even though mortgage lender had already filed suit and recorded lis pendens because the Declaration of Covenants, which included provisions with respect to the Association’s right to lien and foreclose on the property, was a recorded “interest” at the time of the filing of lis pendens. Jallali v Knightsbridge Village Homeowners Association, Inc., Case No. 4D15-2036 (Fla. 4th DCA Jan. 4, 2017)(affirmed).
  • Note Indorsement - Standing: lender is not required to prove the validity of the indorsement on the note through a chain of transfers because indorsement was presumed to be both authentic and made by an authorized party, and the borrower failed to make any showing to the contrary. Mere possession of the note indorsed in blank was sufficient for standing. Pennymac Corp. v Frost, Case No. 4D16-262 (Fla. 4th DCA Jan. 4, 2017) (reversed and remanded).
  • Rule 1.540(b): Rule 1.540(b)(4) authorizes a court to relieve a party from a void final “order” in addition to a void final “judgment or decree.” De La Osa v. Wells Fargo Bank, N.A., Case No. 3D14-1455 (Fla. 3d DCA December 14, 2016) (Vacating panel opinion and affirming trial court’s order).
  • Rule 1.540(b): The trial court was within its discretionary right to relieve foreclosing bank from involuntary dismissal pursuant to Rule 1.540(b)(1) where the foreclosing bank filed its motion for relief within a reasonable time, not exceeding one year. Fields v. Beneficial Florida, Inc., Case Nos. 5D15-4091 (Fla. 5th DCA December 16, 2016) (Affirmed).

TITLE INSURANCE UPDATE

  • Closing Protection Letter (CPL) -- Causation: Issue of fact as to causation of lender’s losses precluded entry of summary judgment in favor of FDIC despite fact that FDIC may be entitled to adverse inference from closing agent’s assertion of Fifth Amendment privilege against self-incrimination. FDIC v. Fidelity National Title Insurance Group, Case No. 14-13706 (E.D.Mich. Jan. 3, 2017)
  • Closing Protection Letter (CPL)—Prompt Notice: Title insurer’s inability to explain how missing evidence, caused by long passage of time prior to receiving CPL claim, prejudiced its ability to defend claim, and thus precluded entry of summary judgment in favor of title insurer on issue of timely notice . FDIC v. Fidelity National Title Insurance Group, Case No. 14-13706 (E.D.Mich. Jan. 3, 2017)
  • Closing Protection Letter (CPL) – Impairment of Subrogation Rights: When FDIC could not discover that closing agent may have been aware of fraud until deposition occurring shortly before claim was submitted, . FDIC v. Fidelity National Title Insurance Group, Case No. 14-13706 (E.D.Mich. Jan. 3, 2017)
  • Closing Protection Letter (CPL) – Limit of Liability: Lender need not retain interest in mortgage to recover under CPL. Terms of CPL more reasonably interpreted to limit amount of liability to loan amount under title policy to avoid double recover under CPL and title policy. FDIC v. Fidelity National Title Insurance Group, Case No. 14-13706 (E.D.Mich. Jan. 3, 2017).
  • Closing Protection Letter (CPL)--Damages: FDIC failed to sustain burden on summary judgment when it failed to explain why proceeds from insurance claims or foreclosure sales were not included in calculation of damages. FDIC v. Fidelity National Title Insurance Group, Case No. 14-13706 (E.D.Mich. Jan. 3, 2017)
  • Title Insurer’s Duty: Ambiguous deed description, prepared by escrow agent, precluded summary judgment on issue of whether insurer breached duty as an escrow agent, when insurer allegedly failed to discover and disclose to insured that City had right to maintain a waterline across insured’s property. Evans v. City of Warrenton, 283 Or. App. 256 (Or. Ct. App. Dec. 29, 2016).
December 14, 2016 4:09 PM | Permalink

REAL PROPERTY UPDATE

  • Deficiency/Subject Matter Jurisdiction: approving the 3d DCA’s opinion that an assignee of a foreclosure judgment can maintain a separate action for deficiency under Florida Statutes, Section 702.06, even when foreclosure court retains jurisdiction to adjudicate deficiency in foreclosure action - Dyck-O’Neal, Inc. v Konstantino, Case No. 2D15-4064 (Fla. 2d DCA Dec. 9, 2016) (reversed and remanded; certifying conflict with Higgins v. Dyck-O'Neal, Inc., 41 Fla. L. Weekly D1376 (Fla. 1st DCA June 9, 2016), certified)).
  • Default: Florida Rule of Civil Procedure 1.500 precludes entry of default when defendant has served response to complaint, even if response was not filed within the time granted by the trial court - Sansbury v Wells Fargo Bank, N.A., Case No. 5D15-1956 (Fla. 5th DCA Dec. 9, 2016) (reversed and remanded).
  • Landlord-Tenant/Self-Help/Wrongful Eviction: landlord that removed Tenant pursuant to self-help provisions in lease agreement was liable for wrongful eviction for violating Section 83.05(2), Florida Statutes, which provides that Landlord may only recover possession of a rented premises (a) In an action for possession under s. 83.20, or other civil action in which the issue of right of possession is determined; (b) When the tenant has surrendered possession of the rented premises to the landlord; or (c) When the tenant has abandoned the rented premises - Palm Beach Florida Hotel and Office Building Limited Partnership, et al. v Nantucket Enterprises, Inc., Case No. 4D14-3450 (Fla. 4th DCA Dec. 7, 2016) (affirmed, in part, reverse, in part and remanded).
  • Landlord-Tenant/Conversion: landlord could not convert Tenant’s newly remodeled space because real property cannot be converted - Palm Beach Florida Hotel and Office Building Limited Partnership, et al. v Nantucket Enterprises, Inc., Case No. 4D14-3450 (Fla. 4th DCA Dec. 7, 2016) (affirmed, in part, reverse, in part and remanded).
  • Foreclosure/Conditions Precedent: a breach of a condition precedent does not preclude the enforcement of an otherwise valid contract, absent some prejudice - Liberty Home Equity Solutions, Inc. v Raulston, et al., Case No. 4D15-3652 (Fla. 4th DCA Dec. 7, 2016)
  • Foreclosure/Standing: attaching a copy of the note to the complaint and presenting the original note in the same condition at trial creates an inference that the plaintiff was in actual possession of the note at the time the complaint was filed, which, absent evidence to the contrary, is sufficient to establish standing - The Bank of NY Mellon v Milford, et al., Case No. 4D15-4813 (Fla. 4th DCA Dec. 7, 2016).
  • Foreclosure/Lack of Jurisdiction: trial court lacked jurisdiction to impose sanction against bank for filing allegedly frivolous foreclosure action because bank had voluntarily dismissed the case within the safe harbor period under section 57.105(4), Florida Statutes – Bank of Am. v. Turkanovic, No. 1D16-3416 (Fla. 1st DCA Dec. 1, 2016) (granting bank’s petition for writ of prohibition)
  • Foreclosure/Improper Expert Testimony: trial court, in finding that trust lacked standing, relied solely on improper legal conclusions of borrower’s expert that trust documents did not allow for trust to acquire subject note and that trust was not the holder of the note – Citibank, N.A., etc. v. Olsak, No. 3D15-1032 (Fla. 3d DCA Nov. 30, 2016) (reversing involuntary dismissal, and remanding for further proceedings)
  • Commercial Landlord-Tenant/Voluntary Deposit of Rents: in tenant’s lawsuit against landlord based on alleged noise pollution from neighboring tenant, trial court did not abuse its discretion by allowing tenant to voluntarily deposit rent money into court registry pursuant to Rule 1.600 because purpose of tenant’s lawsuit was, in part, to determine entitlement to base rent from the date of the alleged construction eviction onward – Tixe Designs, Inc. v. Green Ice, Inc., No. 3D15-2419 (Fla. 3d DCA Nov. 30, 2016) (affirmed)
  • Foreclosure/Authenticity of Signature: even though borrower failed to place bank on notice in her pleadings that she was challenging the authenticity or validity of her signature, trial court allowed borrower to present testimony on that issue, and trial court’s ultimate determination that borrower signed the loan documents was supported by competent, substantial evidence – Polonsky v. HSBC Bank USA, N.A., etc., No. 3D16-371 (Fla. 3d DCA Nov. 30, 2016) (affirmed)
  • Foreclosure/Attorneys’ Fees: because defendants ultimately placed plaintiff bank on notice of their unpled claim for attorneys’ fees, and bank failed to timely object to defendants’ failure to plead entitlement, trial court’s judgment awarding attorneys’ fees to defendants was proper – BankUnited, N.A. v. Ajabshir, No. 3D16-872 (Fla. 3d DCA Nov. 30, 2016) (affirmed)
  • Foreclosure/Damages: bank provided competent, substantial evidence of some, but not all, of its damages in foreclosure action – Tervil v. U.S. Bank, Nat’l Ass’n, as Trustee, No. 4D15-2561 (Fla. 4th DCA Nov. 30, 2016) (affirmed in part, reversed in part, and remanded with instructions)
  • Foreclosure/Condition Precedent: trial court erred by requiring borrower to raise bank’s noncompliance with condition precedent, specifically the HUD regulation’s requirement under 24 C.F.R. § 203.604 concerning face-to-face counseling, as an affirmative defense where borrower specifically denied the bank’s compliance with that HUD regulation in her answer, thereby shifting burden back to bank to prove such compliance at trial – Palma v. JPMorgan Chase Bank, Nat’l Ass’n, et al., No. 5D15-3358 (Fla. 5th DCA Dec. 2, 2016) (reversed, and remanded with instructions to enter an involuntary dismissal)

TITLE INSURANCE UPDATE

  • Breach of Title Insurance Policy: Under Florida’s Marketable Record Title to Real Property Act, title insurer has no duty to discover a customary right for public beach access which accrued prior to an undisputed date of root title, the date the last transaction purporting to create or transfer the estate being claimed provided the transaction was recorded at least 30 years prior to the date marketability is being determined – Kahama VI, LLC v. HJH, LLC, Case No. 8:11-cv-2029-T-30TBM (M. D. Fla., Dec. 6, 2016) (granting summary judgment)
  • Land Use Regulations: Unless specifically noted in the policy, title insurance policy does not insure against future changes to land use regulations made after city discovered its interest in the property at issue, which interest was not discovered or disclosed by title insurer in the policy, even if those regulations cause an economic loss – Kahama VI, LLC v. HJH, LLC, Case No. 8:11-cv-2029-T-30TBM (M. D. Fla., Dec. 6, 2016) (granting summary judgment)
December 2, 2016 10:50 AM | Permalink

REAL PROPERTY UPDATE

  • Settlement/Waiver: borrowers permitted to raise affirmative defenses and counterclaims against lender where subject Loan Modification Agreement failed to include waiver of claims, affirmative defenses, or counter claims - Rodriquez, et al., v. Ocean Bank, etc., No. 3D15-1802 (Fla. 3rd DCA November 23, 2016) (summary final judgment reversed and remanded).
  • Temporary Injunctions: trial court’s order attempting to maintain status quo between parties was, in fact, a temporary injunction and failed to satisfy requirements of Florida Rule of Civil Procedure 1.610 - Aligned Bayshore Marina, LLC, v. American Watersports Coconut Grove, LLC, No. 3D16-1435 (Fla. 3rd DCA November 23, 2016) (order is reversed and remanded).
  • Exclusion of Evidence: remedy for erroneously excluded evidence is new trial; not consideration of excluded evidence to reach a different result - Willson et. al, v. Big Lake Partners, LLC, No. 4D15-1782 (Fla. 3rd DCA November 23, 2016) (order is reversed and remanded).
  • Foreclosure/Liability for Assessments: HOA entitled to seek entire amount of unpaid assessments because first mortgage holder failed to “initially join” HOA in mortgage foreclosure action - Federal National Mortgage Association v. Mirabella at Mirasol Homeowners’ Association, Inc., No. 4D15-4792 (Fla. 4th DCA November 23, 2016) (affirmed).

TITLE INSURANCE UPDATE

  • Breach of Contract: Lender could not sue for breach of contract because title policy was never issued due to title agents failure to advance funds to satisfy prior mortgage, which was condition precedent listed on title commitment.  The Bank of New York Mellon v. Commonwealth Land Title Ins., Case No. 2708 EDA 2015 (Pa. Super. Ct. November 18, 2016)(Memorandum)
  • Agent Liability: title insurer stated cause of action for breach of agency agreement against independent title insurance agent even though none of the provisions in the agreement specifically required the agent to record the insured deed of trust – Stewart Title Guaranty Co. v. Lewis, Case No. 16-1372 (D.D.C Nov. 2, 2016) (memorandum opinion n& order denying motion to dismiss)
  • Agent Liability: whether employee was acting within the scope of his employment for title insurance agent for alleged conversion of funds was a question of fact for the jury – Roman v. Sage Title Group, LLC, Case No. 40 (Md. App. Sept. 27, 2016) (affirming in part, reversing in part judgment and remanding case for further proceedings)
  • Agent Liability: expert testimony required to show that title company’s standard of care to require a title insurance policy as well as what the policy should provide – Roman v. Sage Title Group, LLC, Case No. 40 (Md. App. Sept. 27, 2016) (affirming in part, reversing in part judgment and remanding case for further proceedings)
November 17, 2016 10:01 AM | Permalink

REAL PROPERTY UPDATE

  • Foreclosure/Constitutional Challenge: record title owner’s argument that Florida Statutes section 702.035, governing “Legal notice concerning foreclosure proceedings,” is an unconstitutional special law was improper where record title owner failed to comply with Florida Rule of Civil Procedure 1.071, governing constitutional challenges to state statutes - Shelton v. The Bank of NY Mellon, Case No. 2D16-952  (Fla. 2d DCA November 9, 2016) (Affirmed).
  • Foreclosure/Voluntary Dismissal: where foreclosing bank filed a notice of voluntary dismissal, the trial court was instantaneously divested of jurisdiction and trial court was in error for subsequently entering amended final judgment and order denying defendant’s motion for attorneys’ fees and costs - The Bank of NY Mellon v. Poker Run Acquisitions, Inc., Case Nos. 3D13-2607, 3D13-2379 (Fla. 3d DCA November 9, 2016) (Reversed and remanded).
  • Foreclosure/Rule 1.540(b)(4) Motion: borrower’s verified motion to vacate final judgment of foreclosure under Rule 1.540(b)(4) was improper where it raised for the first time that foreclosing bank lacked standing - Rincon v. Bank of Am., N.A,, Case No. 3D16-76 (Fla. 3d DCA November 9, 2016) (affirmed).
  • Foreclosure: final judgment of foreclosure in favor of lender was proper where at the time it acquired its mortgage interest, lender lacked constructive or actual notice of the existence of an unrecorded agreement allegedly bestowing a previously-acquired interest in the property - White v. Greymar Associates, LLC, Case No. 3D16-617 (Fla. 3d DCA November 9, 2016) (Affirmed).
  • Foreclosure/Statute of Limitations: bank’s prior acceleration in foreclosure action that was involuntarily dismissed did not trigger statute of limitations to bar future foreclosure based on a separate default and filed within 5 years thereof -  Bartram v. U.S. Bank National Assoc., etc., et al., Case No. SC14-1265 (Fla. Nov. 3, 2016) (affirmed)
  • Foreclosure/Standing: bank proved standing by presenting evidence of pooling and servicing agreement and corresponding mortgage loan schedule that expressly reflected borrower’s loan - Bolous v U.S. Bank National Assoc., etc., et al., Case No. 4D15-2608 (Fla. Nov. 2, 2016) (affirmed; distinguishing Lewis v U.S. Bank Nat’s Ass’n., 188 So. 3d 46 (Fla. 4th DCA 2016))

TITLE INSURANCE UPDATE

  • Class Action/Bipolar Arbitration: district court did not err in compelling bipolar arbitration of class claims for overcharges of recording fees because title insurers did not waive right to arbitration despite not seeking to enforce arbitration provision until two years after litigation was initiated -  Chassen v. Fidelity National Financial, Inc., 836 F.3d 291 (3rd Cir. Sept. 8, 2016)
  • Diversity Jurisdiction/Removal: title insurer, with burden to show grounds for diversity jurisdiction in federal court, could not simply rely upon purchase price of property or policy limits to counter insured’s claim that losses fell below policy limits and jurisdictional amount - David & Sheri Elter, LLC v. Stewart Title Guarantee Co., Case No. 16-CV-1036 (W.D. La. Sept. 20, 2016) (Report and Recommendations)
  • Economic Loss Rule: plaintiff’s breach of fiduciary duty claim should be dismissed because title insurer only owes fiduciary duty when it undertakes duty to defend insured and absent trigger of duty to defend, relationship between plaintiff and insurer was purely contractual - Johnsen and Allphin Props., LLC. v. First American Title Ins. Co., Case No. 12-CV-740-DN-PMW (D.Utah Oct. 31, 2016) (memorandum decision)
  • Punitive Damages: plaintiff could not seek punitive damages against title insurer when it had no viable tort claims against title insurer and could only proceed on claims for breach of contract and breach of implied covenant of good faith and fair dealing - Johnsen and Allphin Props., LLC. v. First American Title Ins. Co., Case No. 12-CV-740-DN-PMW (D.Utah Oct. 31, 2016)(memorandum decision)
  • Statute of Limitations: to avoid being time barred under New Jersey’s statute of limitations, plaintiff had to bring claim within six years of knowledge of injury, rather than knowledge of identity of title insurer as potential defendant in claim arising from alleged mortgage foreclosure rescue scam - Kretz v. Hernandez, Case No. 12-3152 (D.N.J. Oct. 31, 2016) (Memorandum Opinion)
November 2, 2016 11:11 AM | Permalink

REAL PROPERTY UPDATE:

  • Condominium: allocation of square footage within the declaration controls where there is lack of clarity in both the perimetrical boundaries definition and the diagram of the lobby area in question - Shores of Panama Club, LLC, v. Shores of Panama Resort Community Association Inc., et al., No. 1D16-0920 (Fla. 1st DCA October 28, 2016) (reversed and remanded).
  • Foreclosure/Intervenor: intervenor cannot inject an unpled, waived defense of a defaulted party for the court’s adjudication - Ventures Trust 2013-I-H-R, as successor in interest to JPMorgan Chase Bank, National Association. v. Asset Acquisitions and Holdings Trust, No. 2D15-1923 (Fla. 2d DCA October 28, 2016) (reversed and remanded).
  • Foreclosure/Default Notice/Summary Judgment Evidence: defendants’ summary judgment and dismissal of complaint reversed where defendants’ affidavits were insufficient on their face to establish entitlement to judgment as a matter of law, where affidavits did not address whether plaintiff fulfilled the notice requirement by sending the notice via first class mail - JPMorgan Chase Bank N.A. v. Ostrander, No. 2D15-3935 (Fla. 2d DCA October 28, 2016) (reversed and remanded).
  • Foreclosure/Standing: plaintiff failed to establish it had standing to foreclose, where only proof of standing was a screen shot of a computer-generated document referred to as a Loan Transfer History - Miller v. Bank of America, N.A., et al, No. 5D15-780 (Fla. 5th DCA October 28, 2016) (reversed and remanded).
  • Offers of Judgment/Attorneys’ Fees: offers for settlement that failed to state whether they included attorneys’ and whether attorneys’ fees were part of the legal claim were not invalid where attorneys’ fees were not sought in the pleadings; accordingly, the Florida Supreme Court declined to invalidate offers of judgment solely for violating a requirement of rule 1.442 of the Florida Rules of Civil Procedure that section 768.79, Florida Statutes, does not require – Kuhajda v. Borden Dairy Co. of Alabama, LLC., No. SC15-1682 (Fla. Oct. 20, 2016)
  • Foreclosure/Standing: plaintiff failed to present sufficient proof showing it had standing to enforce a note containing an undated blank endorsement at the time it commenced foreclosure action – Walton v. Deutsche Bank Nat’l Trust Co., as Trustee, No. 1D15-3761 (Fla. 1st DCA Oct. 19, 2016) (reversed and remanded for entry of an order of dismissal)
  • Foreclosure/Subject Matter Jurisdiction: trial court’s jurisdiction in foreclosure action expired prior to entry of summary final judgment because court had previously dismissed bank’s complaint for failure to comply with court order requiring it to file original documents and no rehearing, notice of appeal, or motion for relief was filed – Franklin v. Bank of America, N.A., No. 1D15-4296 (Fla. 1st DCA Oct. 19, 2016) (reversed and remanded for entry of an order of dismissal)
  • Foreclosure/Service of Process: borrower did not waive objection to service of process by making an appearance in case by filing a motion for extension of time to respond to complaint – Keeter v. The Bank of New York Mellon f/k/a The Bank of New York, as Trustee, No. 1D15-1814 (Fla. 1st DCA Oct. 21, 2016) (reversed and remanded for further proceedings)
  • Foreclosure/Jurisdiction: trial court erred in granting motion for leave to amend filed by bank’s successor, which sought to assert counts for breach of promissory note and equitable lien, because a final judgment of foreclosure had already been entered and could not be reversed nor reopened – Garcia v. Christiana Trust, etc., No. 3D16-735 (Fla. 3d DCA Oct. 19, 2016) (granting petition for writ of certiorari and quashing order)

TITLE INSURANCE UPDATE:

  • No cases of interest.
October 18, 2016 5:12 PM | Permalink

REAL PROPERTY UPDATE

  • Foreclosure/Standing: foreclosing bank did not establish standing where it failed to submit evidence it was in possession of original note with blank endorsement at time of filing of foreclosure complaint - Powers v. HSBC Bank USA, N.A., Case No. 2D14-4857 (Fla. 2d DCA October 14, 2016) (Reversed and remanded).
  • Foreclosure/Statute of Limitations: where foreclosing bank asserted a 2008 payment default date as basis for acceleration in action filed in 2014, defendant homeowner entitled to dismissal due to 5-year-long statute of limitations found in section 95.11(2)(c) - Collazo v. HSBC Bank USA, N.A., Case No. 3D14-2208 (Fla. 3d DCA October 13, 2016) (Reversed and remanded).
  • Foreclosure/Statute of Limitations: where foreclosing bank’s complaint specifically alleged that defendant failed to make a date-certain payment and all subsequent payments, and action was filed within five years of a default payment, lawsuit was timely under section 95.11(2)(c) - Dhanasar v. JPMorgan Chase Bank, N.A., Case No. 3D15-10 (Fla. 3d DCA October 13, 2016) (affirmed).
  • Foreclosure/Section 559.715 Notice: notice requirement of section 559.715 does not operate as condition precedent to bringing mortgage foreclosure suit - Bank of Am., N.A. v. Siefker, Case No. 4D14-1923 (Fla. 4th DCA October 13, 2016) (reversed and remanded).
  • Foreclosure: trial court was within its discretion to not allow intervening third-party purchaser to challenge standing where purchaser obtained legal title after lis pendens had been recorded and a clerk’s default had been entered against original homeowner - State Trust Realty, LLC v. Deutsche Bank Nat’l Trust Co. Americas, Case No. 4D15-1667 (Fla. 4th DCA October 13, 2016) (Affirmed).
  • Foreclosure/Notice of Default: where plaintiff-lender at trial unable to provide copy of paragraph 22 letter sent to borrower to prove it complied with mortgage, involuntary dismissal proper - Hall v. ALS VII RVC, LLC, Case No. 5D15-765 (Fla. 5th DCA October 14, 2016) (Reversed and remanded).
  • Rule 1.540(b) Motion to Vacate: appellant-bank’s 1.540(b) motion to vacate brought four years after final judgment entered in favor of appellee-borrower untimely where bank could not show that court lacked subject-matter jurisdiction to enter final order - U.S. Bank Nat’l Ass’n v. Anthony-Irish, Case No. 5D15-3153 (Fla. 5th DCA October 14, 2016) (affirmed).
  • Foreclosure/Regulation X: lender had no duty to evaluate borrower’s loss mitigation application submitted two days prior to scheduled foreclosure sale, and fact that foreclosure sale was postponed and actually transpired more than 37 days after loss mitigation application was submitted was immaterial; timeliness of borrower’s application is measured on date that complete application is submitted - Lage v. Ocwen Loan Servicing LLC, Case No. 15-15558 (11th Cir. October 7, 2016) (affirmed).

TITLE INSURANCE UPDATE

  • Agency/Tort Liability: title insurer could not be held vicariously liable to mortgage lender, for conduct of title agent, when title agent served as dual agent for insurer and lender - James B Nutter & Co. v. Old Republic National Title Ins. Co., Case No. 15-CV-1979-TWT (N.D. Ga. Oct. 3, 2016) (Memorandum Opinion and Order).
  • CPL: title insurer entitled to summary judgment on breach of CPL claim when mortgage lender admitted it could not demonstrate defect in title or inability to enforce mortgages after successfully conducting foreclosures on four out of ten loans at issue - James B Nutter & Co. v. Old Republic National Title Ins. Co., Case No. 15-CV-1979-TWT (N.D. Ga. Oct. 3, 2016) (Memorandum Opinion and Order).
October 13, 2016 1:42 PM | Permalink

REAL PROPERTY UPDATE

  • Foreclosure: debtor that agreed to “surrender” property in bankruptcy was required to surrender the property to the bankruptcy trustee and secured creditor, and lost right to defend secured creditor’s foreclosure action pending in state court - Failla v Citibank, N.A., Case No. 15-15626 (11 Cir. Oct. 4, 2016) (affirmed)
  • Standing: borrower lacked standing to sue lender for violating statute that required timely recording of satisfaction of mortgage where satisfaction was recorded before borrower filed suit and borrower failed to allege he had suffered damages as a result of the delay - Nicklaw v Citimortgage, Inc., Case No. 15-14216 (11 Cir. Oct. 6, 2016) (appeal dismissed for lack of jurisdiction)
  • Foreclosure/Safe Harbor Limitation on Condo Assessments: holder of note and mortgage, who was not also owner, having foreclosed mortgage on property and purchased it at foreclosure sale, is entitled to the safe harbor limitation of liability on condominium assessments applicable to first mortgagees under section 718.116, Fla. Stat. - Brittany’s Place Condominium Assoc., Inc. v U.S. Bank, N.A., Case No. 2D15-3444 (Fla. 2d DCA Oct. 5, 2016) (affirmed)

TITLE INSURANCE UPDATE

  • Timely Notice: where lender named in prior lienholder’s foreclosure action did not give notice to insurer because it did not know that the subordination prior lender’s lien had not been recorded, a question of fact as to whether subsequent notice to insurer was timely precluded dismissal of action –Greentree Servicing, LLC v. Chicago Title Ins. Co., Case No. ED103906 (Mo. App. Oct. 4, 2016) (reversing order dismissing two counts of complaint)
  • Attorney Fees: under Commonwealth law, insured is entitled to costs and fees for successfully establishing title insurer’s breach of the duty to defend – CH Properties, Inc. v. First American Title Ins. Co., Case No. 13-1354 (D. Puerto Rico Oct. 4, 2016) (memorandum and order granting entitlement to fees)
October 3, 2016 10:35 AM | Permalink

REAL PROPERTY UPDATE

  • Foreclosure/Hearsay/Business Records: trial court abused its discretion by excluding the mortgage records, which included records from a prior servicer, where plaintiff’s witness demonstrated sufficient familiarity with the boarding process to testify about it - Ocwen Loan Servicing, LLC, v. Gundersen, No. 4D15-2809 (Fla. 4th DCA September 28, 2016) (reversed and remanded).
  • Foreclosure/Default Notice: final summary judgment of foreclosure reversed where plaintiff failed to address, in its motion for summary judgment or at the hearing on the motion, defendants’ affirmative defense that default notice did not comply with paragraph 22 - Young v. Nationstar Mortgage LLC, No. 2D15-1023 (Fla. 2d DCA September 28, 2016) (reversed and remanded).
  • Statute of Limitations: trial court erred in dismissing amended complaint as barred by statute of limitations, where claims asserted in amended complaint arose from same “conduct, transaction, or occurrence” as initial timely complaint - Anderson v. Epstein et al., No. 3D15-1050 (Fla. 3d DCA September 28, 2016) (dismissed in part, reversed in part and remanded).
  • Foreclosure/Amendment of Pleadings: trial court abused discretion in denying motion to amend answer filed by borrower’s counsel shortly before trial and alleging failure to comply with conditions precedent and standing as defenses where borrower’s first attorney never filed an answer on her behalf and borrower’s pro se answers did not raise any affirmative defenses – Morgan v. The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee, No. 1D15-2401 (Fla. 1st DCA Sept. 19, 2016) (reversing and denying motion for rehearing en banc).
  • Duty to Disclose/Sale of Residential Property: trial court erred in granting summary judgment on buyers’ Johnson v. Davis claim because buyers should have been allowed a continuance to provide time to depose agents; court also erred in dismissing buyers’ claims against agents for fraudulent misrepresentation, fraudulent concealment, and breach of duties of honesty, candor, and fair dealing because language in residential sale and purchase contract did not extinguish buyers’ causes of action premised on alleged violations of statutory obligations – Kjellander v. Abbott, No. 1D15-5475 (Fla. 1st DCA Sept. 19, 2016) (reversed and remanded)
  • Foreclosure/Conditions Precedent: lender’s default letter substantially complied with requirements of paragraph 22 of mortgage, making trial court’s order of summary judgment in borrowers’ favor improper – Deutsche Bank Nat’l Trust Co., as Trustee v. Pappa, No. 2D14-6029 (Fla. 2d DCA Sept. 23, 2016) (reversed and remanded)
  • Reverse Mortgage/Conditions Precedent: appellant was a co-borrower as that term was contemplated under a reverse mortgage, and therefore, a condition precedent to appellee’s right to foreclose (appellant’s death) had not occurred – Smith v. Reverse Mortg. Solutions, Inc., etc., No. 3D13-2261 (Fla. 3d DCA Sept. 21, 2016) (reversed and remanded)
  • Foreclosure/Conditions Precedent: trial court erred in granting involuntary dismissal on grounds of failure to comply with conditions precedent because default notice substantially complied with language required by mortgage – Fed. Nat’l Mortg. Ass’n v. Linares, No. 3D14-2815 (Fla. 3d DCA Sept. 21, 2016) (reversed and remanded)
  • Foreclosure/Due Process: trial court erred in involuntarily dismissing plaintiff’s foreclosure action for lack of standing because trial court had previously struck the defense upon which dismissal was premised, and plaintiff proceeded at trial as if defendants had been defaulted and its standing to enforce note had been established – LNV Corp. v. Gonzalez, No. 3D15-1813 (Fla. 3d DCA Sept. 21, 2016) (reversed and remanded for new trial at which issue of standing, as well as any other issues properly framed by parties’ pleadings, can be litigated)
  • Real Estate Development: dismissal of appellant’s challenge to development order, which alleged that development order was inconsistent with town’s comprehensive growth management plan, was improper because the comprehensive plan required that the project include residential uses, the project did not contain any residential uses, and thus, the development order was inconsistent with the comprehensive plan – The Realty Associates Fund IX, L.P. v. Town of Cutler Bay, etc., No. 3D15-2407 (Fla. 3d DCA Sept. 21, 2016) (reversed and remanded)
  • Foreclosure/Damages: because evidence of total indebtedness amount was insufficient, judgment reversed on damages issue and matter remanded for further proceedings – Ottawa Properties 2 LLC v. Central Mortg. Co., No. 4D15-406 (Fla. 4th DCA Sept. 21, 2016) (reversed and remanded)
  • Foreclosure/Mortgaged Property: newly formed land adjacent to original parcel was part of original property from moment of its creation and, thus, was subject to mortgage in bank’s favor encumbering original property, as adjacent land was not carved out – Accardi v. Regions Bank, No. 4D15-3213 (Fla. 4th DCA Sept. 21, 2016) (affirmed)
  • Foreclosure/Lack of Jurisdiction: trial court lacked jurisdiction to enter final judgment after notice of removal to federal court filed and before case was remanded back to trial court – Cole v. Wells Fargo Bank Nat’l Ass’n, etc., No. 5D15-2118 (Fla. 5th DCA Sept. 23, 2016) (reversed)

TITLE INSURANCE UPDATE

  • Termination of liability: lender’s settlement agreement satisfying the debt obligation imposed by the mortgage notes terminated liability pursuant to Section 9(c) of the Conditions and Stipulations of the lender’s title insurance policies – Joglor, LLC v. First Am. Title Ins. Co., Case No. 15-1088 (D. Puerto Rico Sept. 27, 2016) (opinion and order granting summary judgment)
  • Bad Faith: disputed question of fact about whether a particular risk was covered or not provided insurer “reasonable grounds” to contest liability, even though court ultimately found liability, and thus precluded bad faith claim and entitled insurer to summary judgment – First Am. Title Ins. Co. v. Silbiger, Case No. 1:15-cv-546 (N.D. Ga. Sept. 27, 2016) (opinion and order granting in part and denying in part summary judgment)
  • Enforcement of subdivision regulations: Insured not entitled to loss caused by municipality’s foreclosure based upon unpaid assessment because insured failed to allege facts showing a recording of notice of an intention to enforce subdivision regulations. BV Jordanelle, LLC v. Old Republic Nat’l Title Ins. Co., Case No. 15-4127 (10th Cir. July 26, 2016).
  • Governmental Taking: Because municipal lien occurred after issuance of policy, and even assuming municipal assessment was a governmental taking, there was no covered loss.  BV Jordanelle, LLC v. Old Republic Nat’l Title Ins. Co., Case No. 15-4127 (10th Cir. July 26, 2016).
  • Right of Access: 30 year revocable right of way purchased by title insurer for insured property constitutes “right of access” as phrase is used in title insurance policy and insured failed to show that policy required insurer to provide permanent irrevocable access to remote parcel.  Fidelity Nat’l Title Ins. Co. v. Woody Creek Ventures, LLC, Case No. 14-1274 (10th Cir. July 26, 2016).
  • Statutory liens: Even if municipal assessment arguably would benefit insured property, the resulting lien secured payment of assessment, not services, labor, or material used in construction and thus, municipal lien was not covered risk under policy.  BV Jordanelle, LLC v. Old Republic Nat’l Title Ins. Co., Case No. 15-4127 (10th Cir. July 26, 2016).
  • Title Defect: Municipal assessment made after title policy was issued and after lender acquired title to property after foreclosure did not constitute covered risk under policy and thus municipality’s foreclosure of insured’s interest was not a covered loss.  BV Jordanelle, LLC v. Old Republic Nat’l Title Ins. Co., Case No. 15-4127 (10th Cir. July 26, 2016).
  • Unmarketability of Title: Unmarketability of title in policy relates to defects affecting rights of ownership rather than defects affecting physical condition or use of covered property. Thus, insurer’s failure to obtain permanent irrevocable right of way for insured did not render property unmarketable under the terms of policy.  Fidelity Nat’l Title Ins. Co. v. Woody Creek Ventures, LLC, Case No. 14-1274 (10th Cir. July 26, 2016).