REAL PROPERTY UPDATE

  • Service of Process: return of service is not required to expressly list the factors defining the “manner of service” contained in Section 48.031(1)(a), Florida Statutes, not included in the requirements of Section 48.21, Florida Statutes, to be valid  Koster v Sullivan, No. SC13-159 (Fla. Feb. 5, 2015) (affirmed).
  • Ad Valorem Tax Challenge: owner of real property being held for the benefit of the University of Florida was property of the state and therefore exempt from the 60 day appeal period imposed by Section 194.171(2), Florida Statutes  Provident Group-Continuum Properties, L.L.C., Trustee v Alachua County Property Appraiser, Case No. 1D14-2655 (Fla. 1st DCA Feb. 3, 2015) (reversed and remanded).
  • Redemption:  if final judgment of foreclosure provides that the property owner’s right of redemption shall be extinguished upon the filing of the certificate of sale, per Section 45.0315, Florida Statutes, any payment made after the filing of the certificate of sale does not entitle the owner to have the foreclosure sale set aside – Waterview Towers Yacht Club – The Ultimate, Owner’s Association, Inc. v Givianpour, et al., Case No. 1D14-3478 (Fla. 1st DCA Feb. 5, 2015) (reversed and remanded).
  • Bankruptcy – Stay of Appeal:  filing of bankruptcy within period for filing appeal stays filing of notice of appeal until 30 days of order lifting bankruptcy stay  AmMed Surgical Equipment, LLC v Professional Medical Billing Specialists, LLC, et al., Case No. 2D14-4968 (Fla. 2d DCA Feb. 6, 2015).
  • Eminent Domain: attorneys’ fees are not recoverable with respect to legal issues concerning the validity and enforceability of liens because such issues did not arise from or directly relate to eminent domain proceedings  Ryan v City of Boynton Beach, Case No. 4D13-3167 (Fla. 4th CA Feb. 4, 2015) (reversed and remanded).
  • Marketable Record Title Act (MRTA): owners of property could not use MRTA to eliminate restrictions in favor of association when the deeds specifically stated the property is subject to such restrictions  Barney, et al. v Silver Lakes Acres Property, etc., Case No. 5D14-137 (Fla. 5th DCA Feb. 6, 2015) (affirmed).
  • Restrictive Covenants: restrictive covenants that run with land must be strictly construed in favor of free and unrestrictive use of the property – Bendo v Silver Woods Community Association, Inc., Case 5D14-1086 (Fla. 5th DCA Feb. 6, 2015) (reversed).
  • Foreclosure: judgment of foreclosure was improper because bank failed to attach a copy of its acceleration letter to its affidavit in support of summary judgment and, as a result, failed to address borrower’s defense of lack of condition precedent  Colon v JP Morgan Chase Bank, Case No. 5D14-1191 (Fla. 5th DCA Feb. 6, 2015) (reversed and remanded).

TITLE INSURANCE UPDATE

  • Insurer-Insured: interests of title insured and its insurer are aligned in defending claim against validity of the insured mortgage and no conflict of interest when title insurer retained counsel to defend against counterclaim  First Clover Leaf Bank v. National Land Title Ins. Co., Case No. 5-12-0442 (Ill. App. Jan. 27, 2015) (affirming summary judgment)
  • Coverage: where title insurer retains counsel to defend counterclaim and insured lender successfully forecloses, insurer has discharged its obligations to insured and was not obligated to provide counsel to prosecute foreclosure  First Clover Leaf Bank v. National Land Title Ins. Co., Case No. 5-12-0442 (Ill. App. Jan. 27, 2015) (affirming summary judgment)
  • Title Insurance Agent: insurer failed to allege fraud and breach of fiduciary duty with the required specificity as to sibling of owner of title company  Fidelity National Title Ins. Co. v. Worthington, Case No. 20130799 (Ut. App. Jan. 29, 2015) (affirming order granting motion to dismiss)
  • Title Insurance Agent: insurer is entitled to claim conversion and constructive trust based on title insurance premiums held in its independent title insurance agent’s escrow account  United General Title Ins. Co. v. Malone, Case No. S-13-1002 (Neb. Jan. 30, 2015) (affirming in part and reversing in part summary judgment)
  • CPL: title insurer lacks prudential standing to challenge FDIC-R’s standing under purchase and assumption agreement to which the insurer is not a party to bring a CPL claim  FDIC-R (WaMu) v. First American Title Ins. Co., Case No. 14-cv-13624 (E.D. Mich. Jan. 30, 2015) (order granting motion to strike defenses)
  • CPL: under Michigan law, negligence may be covered under an indemnity agreement even if no specific reference is made to the negligence of the indemnitee in the agreement and thus negligence of the indemnitee is not a defense to a claim for indemnification  FDIC-R (WaMu) v. First American Title Ins. Co., Case No. 14-cv-13624 (E.D. Mich. Jan. 30, 2015) (order granting motion to strike defenses)