REAL PROPERTY UPDATE

  • Property Damage/Breach of Contract: insurer failed to prove that it provided insured with notification of its right to mediate at the time insured made his claim pursuant to Florida Statutes, Section 627.7015(2), but Insurer’s payment of appraisal award was not a confession of judgment as a matter of law under the circumstances – State Farm Fla. Ins. Co. v. Lime Bay Condo., Inc., No. 4D13-4802 (Fla. 4th DCA Nov. 18, 2015) (reversed and remanded to determine whether insured was forced to file lawsuit)
  • Condo Fees/Jurisdiction: court lacked jurisdiction to rule on motion to determine amounts due to a condominium association following final judgment of foreclosure because the time to amend or alter judgment had passed and judgment did not reserve jurisdiction – PLC Condo. Ass’n v. AmTrust-NP SFR Venture, LLC, No. 4D14-2186 (Fla. 4th DCA Nov. 18, 2015) (reversed and remanded for trial court to dismiss motion)
  • Landlord-Tenant/Settlement: commercial landlord failed to demonstrate the existence of an enforceable settlement agreement with its tenant or that tenant’s attorney had authority to settle case – E Qualcom, Corp. v. Global Commerce Center Ass’n, Inc., No. 4D14-4108 (Fla. 4th DCA Nov. 18, 2015) (reversed and remanded for further proceedings)
  • Foreclosure/Lost Note: original plaintiff allegedly lost note and successor sought to reestablish under Fla. Sta. §673.391 but successor failed to prove original plaintiff was entitled to enforce the note at the time possession was lost as required under statute, and thus had no standing to foreclose – Seidler v. Wells Fargo Bank, N.A., No. 1D14-2569 (Fla. 1st DCA Nov. 12, 2015) (reversed)
  • Foreclosure/Statute of Limitations: trial court should have dismissed foreclosure complaint based on alleged default that occurred outside five-year statute of limitations –Hicks v. Wells Fargo Bank, N.A., No. 5D14-1748 (Fla. 5th DCA Nov. 13, 2015) (reversed and remanded with directions to dismiss)
  • Note Collection/Summary Judgment: mere fact plaintiff sued on note without foreclosing on mortgage is not a proper basis to grant summary judgment against plaintiff because a note and a mortgage are distinct agreements, and thus plaintiff could elect to sue under either – Zander v. Cima, No. 2D14-5866 (Fla. 2d DCA Nov. 13, 2015) (reversed and remanded)

TITLE INSURANCE UPDATE

  • Recoupment: complaint for breach of purchase and sale agreement by title insurer who paid off lien to protect insured purchaser against seller was based on contract, and not the validity of the lien, and motion to stay discovery pending resolution of motion to dismiss is thus denied – First American Title Ins. Co. v. Commerce Assoc’s, LLC, No. 2:15-cv-832 (D. Nev. Nov. 13, 2015) (order on motion to stay discovery)
  • Tort: title insurer acting within the terms of the title insurance policy in disbursing insured lender’s proceeds to owner’s contractor is not is not liable in tort to owner for alleged negligent disbursal – Elsebaei v. Philip R. Seaver Title Co., Inc., No. 323620 (Mich. App. Nov. 12, 2015) (reversing denial of summary judgment)
  • Continuation of Coverage: coverage under title insurance policy is terminated pursuant to condition 10(b) where insured lender fails to bid at its own foreclosure sale and allows third-party to acquire the property – Vasa v. Chicago Title Ins. Co., No. LC102481 (Cal. Super. Nov. 6, 2015) (granting demur without leave to amend)
  • Agent Liability: declaratory action as to coverage under professional liability policy is not properly stayed pending resolution of underlying equitable lien action where carrier is defending the insured closing agent in the underlying action – Houston Specialty Ins. Co. v. Titleworks of Southwest Florida, Inc., No. 2:15-cv-219 (M.D. Fla. Nov. 10, 2015)(opinion and order denying motion to stay)
  • Claim File: insurer’s claim file is not discoverable in insured’s suit for coverage unless and until bad faith claim is ripe and determination of whether attorney client privilege and work product protection apply or have been waived is not properly determined until that time – Travelers Ind. Co. of Connecticut v. Attorney’s Title Ins. Fund, Inc., No. 2:13-cv-670 (M.D. Fla. Nov. 9, 2015) (order on motion to compel)
  • Duty to Defend: title insurer not required to defend claims to title to the insured property based on allegation that the insured verbally agreed to share title with plaintiff because those claims would, even if true, would be excluded from coverage under 3(a) –Carrington v. Chicago Title Ins. Co., No. A-5926-13 (N.J. Super. Nov. 6, 2015) (affirming summary judgment)
  • Duty to Defend: suit claiming insured’s paving of easement area would be inconsistent with plaintiff’s use of that area potentially affects access to the property and marketability of title and thus creates a duty to defend – Perry v. Fidelity Nat. Title Ins. Co., No. 2-15-0168 (Ill. App. Nov. 6, 2015)(reversing judgment on pleadings)
  • Experts: qualified expert who applies his experience to the facts of the case to explain closing documents and the standard of care for a closing agent is reliable and relevant, put portions of expert’s testimony that go to knowledge, intent, motive, whether a breach of a duty has occurred and what a fiduciary duty are properly handled via a motion in limineprior to trial – FDIC v. Attorney’s Title Ins. Fund, Inc., No. 6:14-cv-1105 (M.D. Fla. Nov. 4, 2015) (order denying Daubert motion to strike plaintiff’s expert and motion in liminewithout prejudice)