REAL PROPERTY UPDATE

  • Foreclosure/Statute of Limitations: filing date of amended complaint for purposes of statute of limitations relates back to filing date of original complaint – HSBC Bank USA, National Association as Trustee for Nomura Asset Acceptance Corporation, Mortgage Pass-Through Certificates, Series  2007-1 v. Karzen, No. 1D14-0019 (Fla. 1st DCA February 26, 2015) (reversed and remanded)
  • Foreclosure: error to enter summary judgment in favor of lender when lender has not denied that it failed to send borrower a written notice of default and intent to accelerate, as required under loan documents, and borrower raised failure to comply with those regulations as an affirmative defense. – Laws v. Wells Fargo Bank N.A.,No. 1DE14-620 (Fla. 1st DCA February 27, 2015) (reversed and remanded)
  • Foreclosure/Clerical Mistakes: Rule 1.540(a), which allows for corrections of clerical mistakes, does not authorize a court to supplement a final deficiency judgment by clarifying the party defendants' status in the litigation nearly three years after entry of initial judgment – Lorant v. Whitney National Bank, JOL, LLC et al.,No. 1D14-2757 (Fla. 1st DCA February 24, 2015) (reversed and remanded)
  • Foreclosure: Trial court abused discretion by denying defendants' ore tenus motion to amend answer and affirmative defenses to assert that plaintiff failed to comply with condition precedent by failing to give defendants acceleration notice as required by mortgage – Cobbum and Downey v. CitiMortgage, Inc., et al.,No. 2D13-5615 (Fla. 2nd DCA February 27, 2015) (reversed and remanded)
  • Real Property/Injunctions: trial court erred in issuing temporary injunction without joining indispensable who’s building permits were delayed by the temporary injunction – Two Island Development Corp., et al., v. Clarke et al., No. 3D14-2324 (Fla. 3rd DCA February 25, 2015) (reversed and remanded)
  • Homestead Exemption: homestead exemption obtained by husband alone inures to wife's benefit after his death where property was held as tenancy by the entireties; wife never filed for her own homestead exemption; and wife continuously maintained her permanent residence on the property before and after her husband’s death – Kelly et al., v. Spain, No. 4D14-510 (Fla. 4th DCA February 25, 2015) (final summary judgment affirmed)

TITLE INSURANCE UPDATE

  • Third-Party Beneficiaries: third-party purchasers cannot state a claim against their seller’s title insurance policy because the policy explicitly states it is not intended to benefit such third parties – Hobaica v. First American Title Ins. Co., Case No. 13-55082 (9th Cir. Feb. 23, 2015) (affirming dismissal).
  • Third-Party Beneficiaries: evidence of intent to benefit a third-party after a title insurance policy is issued is not relevant to determination of whether third parties were intended beneficiaries since that inquiry is done at the time the policy is entered – Hobaica v. First American Title Ins. Co., Case No. 13-55082 (9th Cir. Feb. 23, 2015) (affirming dismissal).
  • CPL: contractual limitation in Connecticut CPL  that claims be brought within 1 year of the closing are not subject to statutory tolling period based on agent’s alleged fraudulent concealment – J P Morgan Chase Bank v. Old Republic Nat. Title Ins. Co., Case No. 12-602 90 85 S (CT. Super. Ct. Jan. 22, 2015) (reversing summary judgment).
  • CPL: issues of fact precluded summary judgment as to whether CPL claim survived notice beyond 1 year of the closing and whether closing attorney was acting as title insurer’s liability  – J P Morgan Chase Bank v. Old Republic Nat. Title Ins. Co., Case No. 12-602 90 85 S (CT. Super. Ct. Jan. 22, 2015) (reversing summary judgment).