Real Property Update:
Deed Restriction: genuine issue of material facts remains concerning whether original parties to deed with restrictions contemplated future unilateral amendments to restrictions that would bind successors in title - Fiore v. Hilliker, No. 2D14-1872 (Fla. 2d DCA March 13, 2015) (reversed and remanded)
Sinkhole Claim: homeowners waived right to appraisal regarding scope and method of repair for sinkhole claim by engaging in active litigation against insurer for two-and-half-years before requesting appraisal - Florida Insurance Guaranty Association, Inc. v. Hunnewell, No. 2D14-397 (Fla. 2d DCA March 13, 2015) (reversed and remanded)
Federal Immunity: properties, where true equitable ownership though not legal title, lies in the United States Navy, are immune from Florida ad valorem taxes - Russel v. Southeast Housing, LLC, No. 3D14-746 (Fla. 3d DCA March 11, 2015) (affirmed).
Foreclosure: trial court abused discretion by denying short sale property purchaser's motion to intervene in foreclosure action between homeowners and bank - Bymel v. Bank of America, No. 3D13-3099 (Fla. 3d DCA March 11, 2015) (reversed and remanded)
Homestead Protection: judgment debtor who invested part of proceeds of sale of homestead into mutual funds and unit investment trusts does not lose homestead protection for those investments - JBK Associates, Inc. v. Sill Bros., Inc., No. 4D14-3049 (Fla. 4th DCA March, 11 2015) (affirmed).
Foreclosure: genuine issue of material fact remained whether plaintiff had standing to enforce note at inception of lawsuit because undated blank endorsement on original note filed over a month after commencement of suit insufficient to prove standing at inception of suit - Tilus v. As Michai LLC, No. 4D13-3616 (Fla. 4th DCA March 11, 2015) (reversed and remanded)
Condition Precedent: lender's failure to prove it provided notice required under paragraph twenty of mortgage required reversal of judgment of foreclosure and dismissal of action - Blum v. Deutsche Bank Trust, Trustee, Case No. 4D13-4271 (Fla. 4th DCA March 4, 2015) (reversed and remanded).
Condition Precedent: notice waiver in forbearance agreement only applied during forbearance period such that lender was required to provide borrower notice of default and opportunity to cure when default occurred after forbearance period ended because agreement provided that "[a]ll other terms and conditions of the original Note and Mortgage remain in full force and effect other than the change in terms of payment during the forbearance period as provided in this agreement" - Hatadis and Esperanza v Achieva Credit Union, Case No. 2D13-5349 (Fla. 2d DCA March 4, 2015) (reversed and remanded).
Summary Judgment: trial court erred by entering summary judgment on grounds not raised in motion in violation of Florida Rule of Civil Procedure 1.510(c). HSBC Mortgage Corp. v Mullan, et al., Case No. 2D13-2004 (Fla. 2d DCA March 4, 2015) (reversed and remanded).
Title Insurance Update:
Date of Valuation: lender's policy that does not state date of valuation of property for purposes determining loss is ambiguous and is interpreted in favor of the insured – Commonwealth Land Title Ins. Co. v. Sun Valley Credit LLC, Case No. 1:13-cv-00113 (D. Idaho Feb. 26, 2015) (memorandum decision and order on summary judgment)
Date of Valuation: the majority approach to valuing the lender's loss is that the loss to a lender under a title insurance policy is determined at the date of foreclosure – Commonwealth Land Title Ins. Co. v. Sun Valley Credit LLC, Case No. 1:13-cv-00113 (D. Idaho Feb. 26, 2015) (memorandum decision and order on summary judgment)
RESPA: mere allegation that title agency, law firm, and lawyer split a settlement fee, fails to state a cause of action for violation of RESPA, even though (i) the services provided by the title agency may have been required to have been performed by an attorney and were thus in violation of Georgia law, (ii) the only service the law firm and lawyer provided was arranging for a third party contractor to perform a service, and (iii) the title agency marked up the price of recording charges – Clements v. LSI Title Agency, Inc., Case No. 14-11636 (11th Cir. March 2, 2015) (affirming dismissal for failure to state a claim)
CPL: closing protection letters are independent contracts separate from title insurance policies and may be assigned or retained when the corresponding mortgages are assigned, depending on the language of the agreement – First American Title Ins. Co. v. Citizens Bank, Case No. E2014-0115-COA-R3-CV (Tenn. App. Feb, 25, 2015) (affirming summary judgment)
Attorney Agent: attorney who continued to issue commitments and policies and to collect title insurance premiums long after his agency had been cancelled is disbarred – In re Davis, Case No. 27480 (S.C. Jan. 21, 2015)
Policy Construction: the rule of construction that a title insurance policy is to be interpreted against the insurer in favor of the insured may not have application to situations, such as the construction loan context, where the lender (insureds) are involved in the process of drafting and revising the policy – BB Syndication Services, Inc. v. First American Title Ins. Co., Case No. 13-2785 (7th Cir. March 12, 2015)(affirming summary judgment)
Exclusion 3(a): where liens arise from insufficient funds, the insured lender "creates" those liens by failing to discover and prevent cost over runs and thus such liens are excluded from coverage under a policy of title insurance pursuant to Exclusion 3(a) – BB Syndication Services, Inc. v. First American Title Ins. Co., Case No. 13-2785 (7th Cir. March 12, 2015)(affirming summary judgment)