REAL PROPERTY UPDATE

  • Foreclosure/Statute of Limitations: statute of limitations did not bar foreclosure action even though filed more than five years after breach and acceleration of note upon which previous foreclosure action that had been dismissed without prejudice was based where new foreclosure action based not upon prior default, but on subsequent default occurring within five years of new action – Nationstar Mortgage, LLC. v. Brown et al., No. 1D14-4381 (Fla. 1st  DCA August 24, 2015) (reversed and remanded)
  • Foreclosure/Standing: plaintiff failed to establish by competent, substantial evidence it was owner and holder of note at time complaint filed by failing to establish that endorsement had been placed on note prior to filing of complaint. – Fiorito v. JP Morgan Chase Bank, National Association, as purchaser of the Washington Mutual Bank, f/k/a Washington Mutual Bank, P.A., No. 4D13-2813 (Fla. 4th  DCA August 26, 2015) (reversed and remanded)
  • Foreclosure/Reservation of Jurisdiction: trial court did not have jurisdiction to address assessment issue post-judgment because issue was neither litigated nor adjudicated and final judgment of foreclosure contained only general reservation of jurisdiction – Grand Central at Kennedy Condo. Ass’n, Inc. v. Space Coast Credit Union, Case No. 2D14-2740 (Fla. 2d DCA Aug. 19, 2015) (reversed and remanded)
  • Foreclosure/Unpaid Assessments: HOA’s affirmative plea of entitlement to only the lesser of six months’ unpaid assessments or one percent of mortgage debt resulted in a waiver of any claim to a greater assessment figure against foreclosing lender – Bank of Am., Nat’l Ass’n v. The Enclave at Richmond Place Condo. Ass’n, Inc., Case No. 2D14-3643 (Fla. 2d DCA Aug. 21, 2015) (reversed and remanded)
  • Foreclosure/Standing: lender failed to establish standing to enforce note, and therefore, entry of final judgment of foreclosure was improper – Lamb v. Nationstar Mortg., LLC, Case No. 4D13-3125 (Fla. 4th DCA Aug. 19, 2015) (reversed and remanded for entry of involuntary dismissal)
  • Foreclosure/Loan Modification: because issue regarding loan modification not raised in pleadings nor tried by consent loan modification ordered by trial court was improper –Fed. Home Loan Mortg. Corp. v. Beekman, Case No. 4D13-4086 (Fla. 4th DCA Aug. 19, 2015) (reversed and remanded for new trial)
  • Foreclosure/Standing: plaintiff failed to establish standing because no evidence was introduced showing note was transferred to plaintiff prior to commencement of lawsuit and pooling and servicing agreement was insufficient to establish standing – Perez v. Deutsche Nat’l Trust Co., as Trustee, Case No. 4D13-4812 (Fla. 4th DCA Aug. 19, 2015) (reversed and remanded with instructions to enter involuntary dismissal)
  • Foreclosure/Business Records: trial court erred in entering final judgment of foreclosure because plaintiff’s employee’s testimony regarding standing was based on business records that were never introduced into evidence – Cardona v. Nationstar Mortg. LLC, Case No. 4D14-1609 (Fla. 4th DCA Aug. 19, 2015) (reversed and remanded for new trial)
  • Foreclosure/Summary Judgment: material issues of fact regarding whether certain properties were meant to secure two mortgages precluded entry of summary judgment in lender’s favor – Fowler v. TD Bank, N.A., etc., Case No. 5D14-4134 (Fla. 5th DCA Aug. 21, 2015) (affirmed in part, reversed in part, and remanded)

TITLE INSURANCE UPDATE

  • Class Action: individual inquiry into whether purchase price of ownership interest in captive title agencies exceeds fair market value not necessary to determine class –Edwards v. First American Corp., Case No. 13-55542 (9th Cir. August 24, 2015) (affirming in part and vacating in part order denying class certification)
  • Class Action: plaintiff need only prove an exchange involving a referral agreement and that does not require inquiry into the acquisition of each title agency –Edwards v. First American Corp., Case No. 13-55542 (9th Cir. August 24, 2015) (affirming in part and vacating in part order denying class certification)
  • Class Action: ownership interests in captive title agencies are not goods, services or facilities within the meaning of 12 U.S.C.  § 2607(c)(2) – Edwards v. First American Corp., Case No. 13-55542 (9th Cir. August 24, 2015) (affirming in part and vacating in part order denying class certification)
  • Escrow: depositor does not lose title to funds merely by depositing them in escrow pursuant to an agreement; escrow agent is not required to follow one party to the escrow agreement’s unilateral instructions to transfer funds; and escrow agent does not breach the escrow agreement or its duties to that party by returning the funds to the depositor –Tribeca Companies, LLC v. First American Title Ins. Co., Case No. A142430 (Cal. Super. Ct. August 26, 2015) (affirming judgment)