REAL PROPERTY UPDATE

  • Standing: parent entity has no right to enforce note and mortgage owned by subsidiary entity absent evidence that parent entity acquired such right – Wright v. JPMorgan Chase Bank, N.A., Case No. 4D14-565 (Fla. 4th DCA July 1, 2015) (foreclosure judgment reversed).
  • Deficiency: deficiency motion is a continuation of foreclosure action and, therefore, final judgment of foreclosure upon which deficiency is based does not need to be introduced into evidence – TD Bank, N.A. v. Graubard, et al., Case No. 5D14-1505 (Fla. 5th DCA July 2, 2015 (reversed and remanded).
  • Condo Association/Statute of Limitations: statute of limitation began to run when control of association turned over to unit owners – Silver Shells Corp. v. St. Maarten at Silver Shells Condo Ass'n, Inc., No. 1D14-4766 (Fla. 1st DCA June 24, 2015) (reversed).
  • Foreclosure/Business Records: error to admit plaintiff’s loan transaction records where there was no testimony as to whether the prior servicer’s records had been checked or verified for accuracy and no evidence the plaintiff’s witness had any knowledge of prior servicer’s recordkeeping system – Channell v. Deutsche Bank Nat. Trust Co., No. 2D14-2318 (Fla. 2d DCA June 24, 2015) (affirmed in part; reversed in part; remanded).
  • Foreclosure/Standing: plaintiff failed to prove standing at the time complaint was filed when original complaint included lost note count, and copy of note attached to complaint lacked endorsement. – Eagles Master Ass', Inc. v. Bank of America, N.A., No. 2D14-1047 (Fla. 2d DCA June 26, 2015) (reversed).
  • Contract/Sale of Real Property: time was not of the essence for obtaining non-monetary condition (rezoning of property) where contract did not contain a time is of the essence provision – Blue Lagoon Development, LLC v. Maury, No. 3D12-3072 (Fla. 3rd DCA June 24, 2015) (reversed and remanded).
  • Landlord/Tenant: trial court is required to hold evidentiary hearing to determine if amount of rent a tenant was collecting from a sublessee was in excess of what was owed under triple net lease – Double Park, LLC v. Kaine Parking, No. 14-3135 (Fla. 3rd DCA June 24, 2015) (reversed and remanded).

TITLE INSURANCE UPDATE

  • Subrogation: title insurer subrogated to insured’s rights stands in the shoes of the insured, and, if the insured is not a bona fide purchaser, then title insurer is not entitled to enforce warranty of title against seller – Chicago Title Ins. Co. v. Bass, Case No. 0-14-0948 (Ill. App. April 27, 2015) (affirming summary judgment).
  • Attorney-Client Privilege: title insurer’s communications with counsel retained to represent the interest of its insured and its own interests are not discoverable in the title insurer’s indemnification action as the privilege belongs to the title insurer and the communications are not at issue simply because attorney’s fees are sought –Commonwealth Land Title Ins. Co. v. Funk, Case No. 14C-04-199 (Del. Super. June 17, 2015) (memorandum opinion denying motion to compel).
  • Diminution in Value: where a defect in title frustrates the intended use of the property, the date of the loan, as opposed to the date of the foreclosure, is the proper date to measure diminution in value under a lender’s title insurance policy – First Am. Title Ins. Co. v. Johnson Bank, Case No. 1 CA-CV 14-0190, 2015 WL 3965740 (Ariz. Ct. App. June 30, 2015) (reversing grant of summary judgment in favor of title insurer).
  • Limitation on Liability: title insurer who cures a defect in title is not liable for diminution in value of the property that occurred during the period it takes to cure the defect where the policy provides that if the title insurer “establishes the title . . . by any method . . . [then] it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby” – Premier Cmty. Bank v. First Am. Title Ins. Co., Case No. C14-5776 BHS, 2015 WL 3949327 (W.D. Wash. June 29, 2015) (order on motion for summary judgment).
  • Coverage: an action for declaratory judgment as to coverage under a title insurance policy does need not allege that the insured made misrepresentations when applying for the insurance – Houston Speciality Ins. Co. v. Titleworks of Sw. Florida, Case No. 2:15-CV-219-FtM-29DNF, 2015 WL 3852955 (M.D. Fla. June 22, 2015) (order denying motion to dismiss).