REAL PROPERTY UPDATE: 

  • Tax Deed Sale/Due Process: after certified letter notifying property owner of tax deed sale returned unopened and unclaimed, due process required clerk of court take reasonable steps to notify owner, if practicable to do so – Thompson v. Markham, Case No. 1D14-3648 (Fla. 1st DCA June 18, 2015) (reversing summary judgment and remanding because material issues of fact existed)
  • Foreclosure/Standing: lender failed to present sufficient evidence it had standing to foreclose, and court erred in allowing lender to substitute in as plaintiff – Creadon v. U.S. Bank N.A., as Successor Trustee, Case No. 2D13-5700 (Fla. 2d DCA June 19, 2015) (reversing and remanding with directions for entry of involuntary dismissal)
  • Foreclosure:  trial court erred in entering final judgment in borrower’s favor finding enforceable agreement to modify loan where such relief not pled or tried by consent –Wachovia Mortg. Corp. v. Posti, Case No. 4D14-419 (Fla. 4th DCA June 17, 2015) (reversed and remanded)
  • Foreclosure/Standing: plaintiff failed to prove standing at commencement of foreclosure action; fact note was transferred into trust prior to filing complaint does not, by itself, establish standing – Jarvis v. Deutsche Bank Nat’l Trust Co., as Trustee, Case No. 4D14-991 (Fla. 4th DCA June 17, 2015) (reversed and remanded with directions for entry of involuntary dismissal)
  • Foreclosure/Standing: plaintiff failed to prove standing because servicer for trust did not testify when special endorsement placed onto note, and transfer of note into PSA insufficient because no evidence that depositor under PSA intended to transfer any interest to trustee – Balch v. LaSalle Bank N.A., as Trustee, Case No. 4D14-2057 (Fla. 4th DCA June 17, 2015) (reversed and remanded with directions for entry of involuntary dismissal)
  • Foreclosure; Rule 1.540(b): dismissal of foreclosure action based on failure of parties to attend trial should have been vacated because trial court failed to notify parties of scheduled trial date – Wells Fargo Bank, N.A. v. Michaels, Case No. 5D14-1743 (Fla. 5th DCA June 19, 2015) (reversed and remanded with instructions) 

TITLE INSURANCE UPDATE:

  • Escrow Agent: agent not liable for damages in negligence, breach of fiduciary duty or breach of contract arising out of a sale that was lost due to the insured lacking title due to error in preliminary title report and a corresponding error in the deed where the insurer promptly corrected the defect – K Corp. Ent., Inc. v. Fidelity National Financial, Inc., Case No. F069098 (Cal. App. June 16, 2015) (affirming judgment after bench trial)
  • Title Search: a preliminary title report is not an abstract of title, but only reflects the terms under which the insurer is willing to issue title insurance, which may or may not reflect the true condition of record title – K Corp. Ent., Inc. v. Fidelity National Financial, Inc., Case No. F069098 (Cal. App. June 16, 2015) (affirming judgment after bench trial)
  • Reinsurance: claim of breach of duty of good faith and fair dealing based on  accusations of misrepresentations and omissions in connection with a reinsurance agreement are not sufficiently connected to breach of reinsurance agreement for failure to pay – Old Republic National Title Ins. Co. v. First American Title Ins. Co., Case No. 18:15-cv-126-T-30EAJ (M.D. Fla. June 8, 2015) (order granting in part motion to dismiss)
  • Payoff Letter: lender who issues a short-sale payoff letter with conditions is not required to accept the short sale amount absent the conditions being met, and title insurer who could have conditioned issuance of policy on conditions in the letter, but did not, and who ends up, as a result, paying off full amount of lender’s loan to protect its insured is not entitled to damages against lender for breach of contract, unjust enrichment, or equitable subrogation – Jafari v. FDIC, Case No. 12-cv-2982 (S.D. Cal. June 8, 2015) (order denying motion to dismiss and granting summary judgment)