Real Property, Financial Services & Title Insurance Update: Weeks Ending October 10 & October 17, 2014

21 Oct

from JDSupra Business Advisors

REAL PROPERTY CASES

  • Sinkhole Loss/Statute of Limitations: homeowners’ lawsuit was barred by the one-year statute of limitations, even though lawsuit was filed promptly after FIGA processed the claim and made a payment – Betancourt v. Fla. Ins. Guar. Ass’n, Inc., Case No. 2D13-265 (Fla. 2d DCA Oct. 10, 2014) (affirming summary final judgment).
  • Foreclosure/Summary Judgment: plaintiff’s non-participation in separate foreclosure lawsuit brought by junior lienor did not warrant finding of equitable estoppel or laches against plaintiff in plaintiff’s foreclosure action, and material issues of fact existed concerning obligor’s signature on loan documents – Wells Fargo, as Trustee v. Rutledge, Case No. 2D13-3192 (Fla. 2d DCA Oct. 10, 2014) (reversed and remanded).
  • Easement:  final judgment construing deed granting easement over property reversed where trial court failed to determine whether a valid easement existed in the first place – The William W. Zeigler Trust v. Cofran Sunday Sunshine Cannon, etc, Case No. 3D12-2605 (Fla. 3d DCA Oct. 8, 2014).
  • Class Action/Denial of Class Certification: affirming denial class certification premised upon alleged devaluation of properties due to unexploded WWII bomb in the area, and determining that individualized findings on each of the eight causes of action need not be contained in order denying certification –Bawtinhimer v. D.R. Horton, Inc., Case No. 5D13-2580 (Fla. 5th DCA Oct. 10, 2014) (affirming denial of certification).
  • Quiet Title/Wild Deed: owner of property entitled to quiet title against interlopers in chain of title who recorded wild deed (quitclaiming property to themselves), took possession, paid delinquent taxes, and began renting out property – Frazier v. Goszczynski, Case No. 5D14-265 (Fla. 5th DCA Oct. 10, 2014) (affirming final judgment quieting title)
  • Business Records Exception to Hearsay: loan payment history must be authenticated by records custodian or qualified witness with knowledge of record keeping system to be admissible as business record, otherwise it is inadmissible hearsay – Burdeshaw v Bank of New York Mellon, Case No. 1D13-2703 (Fla. 1st DCA Oct. 13, 2014) (judgment after trial reversed and remanded).
  • Standing/Foreclosure: to prove standing to foreclose plaintiff must prove it is a holder of note and mortgage as of time of trial and also that initial plaintiff (if different) had standing to enforce note at time foreclosure commenced –  Kiefert v Nationstar Mortg., LLC, Case No. 1D13-5998 (Fla. 1st DCA Oct. 13, 2014) (reversed).
  • Preservation of Error/Foreclosure: per rule 1.530(e), specific contemporaneous objections not required to preserve error for appeal on final judgment of foreclosure entered after bench trial and, therefore, issue of standing subject to challenge after judgment – Lacombe v Deutsche Bank Nat. Trust Co., Case No. 1D13-4094 (Fla. 1st DCA Oct. 14, 2014) (reversed and remanded).
  • Hearsay/Foreclosure: testimony based on business record not admitted into evidence is hearsay and cannot support amounts due under judgment of foreclosure – Beauchamp v Bank of New York, Case No. 4D13-3841 (Fla. 4th DCA Oct. 15, 2014) (affirmed in part, reversed in part and remanded).
  • Adequate Protection for Lost Note: section 702.11, Florida Statutes, requires plaintiff in mortgage foreclosure to provide adequate protection to mortgagor when note secured by mortgage lost, destroyed or stolen – Delia v GMAC Mortg. Corp., Case No. 5D14-78 (Fla. 5th DCA Oct. 17, 2014) (reversed and remanded).

FINANCIAL SERVICES CASES – NONE

TITLE INSURANCE CASES

  • Termination of Coverage: lender’s full release of its mortgage lien terminates coverage under title insurance policy – RNT Holdings, LLC v. United General Title Ins. Co., Case No. BC470486 (Cal. App. Oct. 7, 2014) (affirming summary judgment).
  • Exclusion 3(a): where lender is aware that its borrower is going to transfer property to a non-borrower trust after its deed of trust is executed, any claims arising out of the title to the property being held in the trust are excluded as created, suffered, assumed or agreed to by the lender – RNT Holdings, LLC v. United General Title Ins. Co., Case No. BC470486 (Cal. App. Oct. 7, 2014) (affirming summary judgment).
  • Class Action: borrowers, putative class plaintiffs, sufficiently they alleged suffered damages under Kentucky statute by paying the premiums for lender’s policies in excess of the promulgated rates – Knight v. Stewart Title Guaranty Co., Case No. 07-87 (E.D. Ky. Oct. 6, 2014) (order granting in part and denying in part motion to dismiss and denying motion for partial summary judgment).
  • Class Action: borrowers, putative class plaintiffs, failed to allege claims under Kentucky statute because they were not insureds and thus not within the class of persons protected by the statute – Knight v. Stewart Title Guaranty Co., Case No. 07-87 (E.D. Ky. Oct. 6, 2014) (order granting in part and denying in part motion to dismiss and denying motion for partial summary judgment).
  • Class Action: even though borrowers were not party to the lender’s policies, they sufficiently alleged implied-in-fact contracts such as to withstand a motion to dismiss – Knight v. Stewart Title Guaranty Co., Case No. 07-87 (E.D. Ky. Oct. 6, 2014) (order granting in part and denying in part motion to dismiss and denying motion for partial summary judgment).
  • Class Action: putative class plaintiffs stated cause of action for misrepresentation as to the promulgated rate based on the rate listed on the HUD-1s for the  transactions – Knight v. Stewart Title Guaranty Co., Case No. 07-87 (E.D. Ky. Oct. 6, 2014) (order granting in part and denying in part motion to dismiss and denying motion for partial summary judgment).
  • Class Action: denying motion for summary judgment on whether a title insurance commitment constitutes temporary insurance in violation of Kentucky statute – Knight v. Stewart Title Guaranty Co., Knight v. Stewart Title Guaranty Co., Case No. 07-87 (E.D. Ky. Oct. 6, 2014) (order granting in part and denying in part motion to dismiss and denying motion for partial summary judgment).
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