REAL PROPERTY UPDATE

  • Eminent Domain: property owners forced to defend against excessive litigation caused by condemning authority entitled to attorneys’ fees: (1) for hours defending excessive litigation, fees should be calculated using standard set forth in section 73.092(2) and (2) remainder of fee should be calculated based on benefits achieved formula in section 73.092(1) - Doerr Trust v Central Florida Expressway Authority, et al., No. SC14-1007 (Fla. Nov. 5, 2015) (quashing decision of 5th DCA).
  • Easement: summary judgment granting movant easement improper where no evidence owner took title to property with notice of easement and documents purporting to create easement were ambiguous - Hagelin v U.S. Funding Group, LLC, et al., No. 2D14-2871 (Fla. 2d DCA Nov. 6, 2015) (reversed and remanded).
  • Business Records Exception (Prior Servicer): former servicer’s records admissible under business records exception if new note holder can put forth testimony concerning record-keeping process and procedures of former note holder/servicer and that new note holder/servicer had procedures in place to check accuracy of information it received -Deutsche Bank Trust Co., Trustee v Frias, et al., No. 4D13-4818 (Fla. 4th DCA Nov. 4, 2015) (reversed and remanded).
  • Standing: lender failed to prove standing to foreclose mortgage because indorsement on note undated, appeared for first time after complaint filed, and failed to present evidence to support a finding that indorsement made prior to complaint’s filing -  Jelic v BAC Home Loans Servicing, LP, No. 4D14-516 (Fla. 4th DCA Nov. 4, 2015) (reversed).
  • Surplus Proceeds: subordinate lienholders entitled to surplus funds resulting from sale of property at foreclosure because claims for surplus filed within sixty days of clerk’s issuance of certificate of title -  Strah v. Wells Fargo Bank, N.A, et al., No. 4D14-2604 (Fla. 4th DCA Nov. 4, 2015) (affirmed).
  • Homestead: summary judgment improper where material issues of fact existed as to whether defendant, who did not sign mortgage, had homestead interest in property prior to creation of mortgage lien - Vera v Wells Fargo Bank, N.A., No. 4D14-565 (Fla. 4th DCA July 1, 2015) (summary judgment reversed and remanded).
  • Foreclosure/Statute of Limitations: mortgagor not entitled to declaratory judgment that promissory note and mortgage were beyond the statute of limitations for bringing any action thereon when there was no actual controversy over enforceability of the note and mortgage at the time mortgagor filed complaint – Countrywide Home Loans, Inc., v. Burnette, Nos. 1D14-728, 1D14-4044 (Fla. 1st DCA Oct. 30, 2015) (reversing order granting declaratory relief as to enforceability of note and mortgage, and affirming order that mortgage lien was still in effect)
  • Foreclosure/Voiding Fraudulent Transfers: successor in interest to judgement creditor bank did not have the burden of proving spousal transfer under § 56.29(6) was made to delay, hinder, or defraud creditor.  Instead, such a transfer should be voided unless defendant can prove the transfer was not made to delay, hinder, or defraud creditors – RREF SNV-FL SSL, LLC. v. Shamrock Storage, LLC., No. 1D14-4257 (Fla. 1st DCA Oct. 26, 2015) (reversed and remanded for further proceedings)
  • Foreclosure/Stipulation: it was improper for trial court to set aside a settlement agreement and stipulations between mortgagor and mortgagee due to mortgagor’s mistake of law regarding mortgagee’s standing – Eagle FL VI SPE, LLC v. T&A Family P’ship Ltd., No. 2D14-870 (Fla. 2d DCA Oct. 30, 2015) (reversing and remanding with instructions to enforce settlement agreement as well as stipulations)
  • Foreclosure/Attorneys’ Fees: borrower was timely in filing its motion for attorneys’ fees where the record was not clear as to whether borrower’s or lender’s motion for dismissal terminated the case as lender’s motion for voluntary dismissal contained conditional language to which borrower did not agree – Wells Fargo Bank, N.A. v. Mailloux, No. 2D14-5116 (Fla. 2d DCA Oct. 30, 2015) (affirmed)
  • Foreclosure/Inadmissible Hearsay: when a mortgage service transfer occurs prior to trial and the new servicer witness has only ever worked for the new servicer and not for the original servicer, the business records of the original servicer constitute inadmissible hearsay – Ensler v. Aurora Loan Servs., LLC, No. 4D14-351 (Fla. 4th DCA Oct. 28, 2015) (reversed and remanded for further proceedings)
  • Foreclosure/Loan Modification: where borrower was late in accepting loan modification offer, his late payments in accordance with the terms of the offer constituted a counteroffer which was accepted by the lender when it accepted nine monthly payments in the amount due under the loan modification – Kuehlman v. Bank of America, N.A., Etc., No. 5D14-2131 (Fla. 5th DCA Oct. 30, 2015) (reversed)
  • Tenants’ Opportunity to Purchase Act (TOPA) (D.C. Code § 42-3404.03): organization of tenants formed to purchase residential property from seller lost right to purchase afforded by TOPA when it failed to close in accordance with the terms of its contract for purchase.  As a result, third-party contract was restored to priority over tenant contract and third-party was entitled to purchase property.  Davis v The Tuxedo LLC and Tuxedo Tenants Association, Inc., No. 14-CV-59 (DC Ct. App. Sept. 24, 2015) (reversed).
  • Rental Housing Act: landlord complied with Rental Housing Act, and related law, by issuing tenant notice of intent to increase rent, where notice stated (i) current rent, (ii) amount of increase, (iii) explanation in support of increase, (iv) summary of tenant’s rights, and (v) the date the increase would take effect. There was no requirement notice be signed and, therefore, District of Columbia Rental Housing Commission’s decision that notice was proper would be upheld - Carpenter v DC Rental Housing Commission, et al., No. 13-AA-703 (DC Ct. App. Dec. 10, 2014).

TITLE INSURANCE UPDATE

  • Title Insurance Issuing Agent: claim under agency agreement is one for breach of contract of indemnification and not tort event though contractual standard of care was as to negligent, willful, or reckless conduct – Fidelity National Title Ins. Co. v. B&G Abstractors, Inc., No. 2:15-cv-835 (W.D. Pa. Oct. 27, 2015) (memorandum opinion granting in part and denying in part motion to dismiss)
  • Escrow Agent: purchasers failed to state a cause of action for breach of fiduciary duty as to escrow agent’s failure to follow lender’s instructions – Sarnecky v. Fidelity National Title Co., No. D064968 (Cal. App. Oct. 23, 2015)(affirming judgment on the pleadings)
  • Title Agent: attorney and title agent’s conviction and sentencing affirm for his part in scheme to recruit straw buyers, submit false loan applications, and disburse loan proceeds for unapproved uses – United States of America v. Ubieta, No. 13-12018 (11th Cir. Nov. 3, 2015) (affirming convictions and sentences)
  • Title Agent: attorney who issues an incorrect legal opinion to title insurer as to status of property is liable for that and the court did not err in dismissing the attorney’s third party claims seeking contribution and indemnification from abstractor – Hines v. Holland, No. A15A1068 (Ga. Oct. 30, 2015) (affirming judgment)
  • Escrow Agent: cause of action by seller against escrow agent for “indemnity hold” that was evident on face of settlement statement, accrued at the time of the closing and not delayed by the discovery rule, and was barred when filed 20 years after closing – Capous v. Foley, No. B253867 (Cal. App. Oct. 30, 2015) (affirming judgment)
  • Unjust Enrichment: statute of limitations for unjust enrichment by title insurer against agent begins to run when the insurer discovers or reasonably should have discovered the injury not, as with indemnity claim, when the insurer pays under the policy – In re Leone, No. 1:14-BK-03891 (M.D. Pa. Bk. Oct. 29, 2015)(denying motion for reconsideration)