REAL PROPERTY UPDATE

  • Foreclosure/Standing: because plaintiff was not original lender, plaintiff failed to prove standing to foreclose on mortgage loan where plaintiff failed to submit note with blank or special indorsement, assignment of note, or affidavit otherwise proving status of plaintiff as holder of note - J-H Home Mortg. Rescue, LLC v. Fed. Nat’l Mortg. Ass’n, No. 2D14-3398 (Fla. 2d DCA Dec. 16, 2015) (reversed)
  • Foreclosure/Standing: property owner lacked standing to challenge foreclosure sale because property owner purchased property after a lis pendens had been filed regarding the property and therefore took property subject to outcome of lawsuit - Whitburn, LLC v. Wells Fargo Bank, N.A., No. 2D14-5563 (Fla. 2d DCA Dec. 18, 2015) (affirmed)
  • Lost note: plaintiff, by documentary and witness testimony, satisfies statutory requirements to reestablish lost note by proving (1) at time plaintiff lost note, it was entitled to enforce it; (2) loss of possession was not the result of a transfer by plaintiff or a lawful seizure; and (3) plaintiff cannot reasonably obtain lost note - Nationstar Mortg., LLC, v. Marquez, No. 3D13-2990 (Fla. 3d DCA Dec. 16, 2015) (reversed and remanded)
  • Foreclosure/Standing: bank’s status as holder of note relied on blank indorsement, but because Bank failed to show it had possession of original note, indorsed in blank, at time complaint was filed, it lacked standing - Calvo v. U.S. Bank Nat’l Ass’n, No. 4D14-1424 (Fla. 4th DCA Dec. 16, 2015) (reversed and remanded)

TITLE INSURANCE UPDATE

  • Constructive Notice: purchaser of a residence was charged with constructive notice of an alleged defect because the court found that the alleged defect was listed in the record at the time of the purchase - Hachem v. Chicago Title Ins. Co., No. 1-14-3188 (Ill. App. Ct. Dec. 14, 2015) (affirming various rulings of the lower court)
  • RESPA/Kickbacks: no violation of RESPA § 2607(b), which prohibits fee-splitting, can be found if the attorney-agent provides some services in return for the fee from the title company, and it is irrelevant whether the attorney-agent was overpaid in relation to the services rendered - Chultem v. Ticor Title Ins. Co., Nos. 1-14-0808 (Ill. App. Ct. Dec. 9, 2015) (affirming trial court’s judgment in favor of defendants)