REAL PROPERTY UPDATE

  • Foreclosure/Standing: party whose motion to intervene in foreclosure action was denied did not have standing to appeal final judgment of foreclosure – Market Tampa Investments, LLC. V Stobaugh, Case No. 2D13-5126 (Fla. 2nd DCA September 2, 2015) (affirmed, in part, dismissed, in part)
  • Foreclosure/Standing: judgment of foreclosure in favor of lender reversed when lender failed to prove standing to enforce and foreclose mortgage before the action was filed –Tomlinson and Crump v GMAC, Case No. 2D13-6030 (Fla. 2nd DCA September 2, 2015) (foreclosure judgment reversed)
  • Foreclosure/Deficiency: deficiency judgment in favor of an alleged assignee, who purportedly received assignment of right to pursue deficiency post foreclosure, was improper where alleged assignee failed to present any evidence of the assignment – Barry and Ruff v Vantium Capital, Inc, Case No. 2D14-3200 (Fla. 2nd DCA September 4, 2015) (deficiency judgment revered)
  • Ratification: lender did not prove ratification to support an equitable lien against the interests of co-tenant owners of real property that did not sign mortgage or note because lender could not prove the loan proceeds were received by the co-tenants or used in connection with the property and could not prove co-tenants had acquired full knowledge of the material details of the mortgage loan entered into by the co-tenant – Wells Fargo Bank, N.A. v. Clavero, et al., Case No. 3D14-520 (Fla. 3d DCA September 2, 2015) (affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion)
  • Consent Judgment: failure to include reservation of right to appeal in consent judgment rendered the judgment non-appealable where appellant failed to produce record of hearing, failed to prove it did not actually consent to the judgment and could not show lack of subject matter jurisdiction – Pacific National Bank, N.A. v. Home Tower Condominium, Inc., et al., Case No. 4D13-2491 (Fla. 4th DCA September 2, 2015) (judgment affirmed)
  • Recusal: order of dismissal entered simultaneously with order of recusal was void as a matter of law – Cheshire v Wells Fargo Bank, N.A., Case No. 1D15-113 (Fla. 1st DCA September 3, 2015) (dismissal reversed and remanded)

TITLE INSURANCE UPDATE

  • Exclusion 3: insured who claimed various transactions were fraudulent conducted in his name is barred under any policies he might have purchase as such claims were (i) created, suffered, assume or agreed to by the insured, (ii) were based on matters that were not recorded but known to the insured, and (iii) did not give rise to any loss to insured – Howard v. Fidelity National Title Ins. Co., Case No. 4:10cv2368 (E.D. Mo. Aug. 24, 2015) (vacating previous order granting defendant summary judgment)
  • Mechanics Liens: damages agreed to by insured in settlement of mechanics’ lien claims pursuant an agreement with an entity controlled by insured that had purchased the lien claims for less than the settlement amount do not constitute insurer’s liability under policy – Fidelity National Title Ins. Co. v. Centerpoint Mechanic Lien Claims LLC, Case No. 12-0721 (Az. App. Aug. 27, 2015) (reversing, vacating judgment, and remanding for further proceedings)
  • Employees: title insurer, whose employee who dispursed construction escrow funds to family members, associates and businesses he owned or owed money to, entitled to summary judgment on breach of fiduciary duty, unjust enrichment, accounting claims, punitive damages, and a constructive trust – Chicago Title Ins. Co. v. Sinikovic, Case No. 11 C 2504 (N.D. Ill. Aug. 28, 2015) (opinion and order)
  • Covered Loss: to prove loss under mortgagee policy of title insurance, the insured lender must show (i) devaluation due to title defect and (ii) loss of value reduced equity that lender would have been able to recover – Twin Cities Metro-Certified Dev. Co. v. Stewart Title Guaranty Co., Case No. A14-1714 (Mn. App. Aug. 10, 2015) (opinion reversing and remanding summary judgment)
  • Covered Loss: if a junior mortgagee has no equity to recover due to a senior mortgage that is excluded from coverage, it does not suffer an actual loss covered under a lender’s policy of lender's title insurance even if an otherwise covered defect is present Twin Cities Metro-Certified Dev. Co. v. Stewart Title Guaranty Co., Case No. A14-1714 (Mn. App. Aug. 10, 2015) (opinion reversing and remanding summary judgment)
  • Coverage: title insurance policy does not cover liens arising from improvement assessments levied after the date of the policy –BV Jordanelle, LLC v. Old Republic National Title Ins. Co., Case No. 2:14-cv-00351 (C.D. Utah Aug. 5, 2015) (granting motion for judgment on pleadings and dismissing with prejudice)
  • Duty of Care/Negligent Recording: legal question of whether title company owes a duty of care to third parties to refrain from negligently recording legal instruments certified to Washington Supreme Court - Centurion Propertoes III, LLC v. Chicago Title Ins. Co., Case Nos. 13-35692,13-35725 (9th Cir. July 16, 2015) (certifying question)
  • Covenant of Good Faith & Fair Dealing: developers must indemnify title insurer under indemnity agreement giving title insurer unfettered right to determine whether a tendered claim is covered because title insurer’s determination that claim is covered under title policy can never violate implied covenant of good faith and fair dealing - First Am. Title Ins. Co. v. Spanish Inn, Inc., Case No. D067137 (Cal. Ct. App. July 16, 2015) (affirming grant of summary judgment to title insurer)