Real property, financial services & title insurance update - September 22, 2014 . . . A collection of national "reverse and remands"

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Real property, financial services & title insurance update – September 22, 2014 . . . A collection of national “reverse and remands”

Real property, financial services & title insurance update – September 22, 2014 . . . A collection of national “reverse and remands”

REAL PROPERTY UPDATE

  • Parol Evidence: trial court erred by considering extrinsic evidence to determine parties’ intent because contract for sale of property that provided certain prior deposits be paid to seller as consideration for buyer’s extensions of closing date was clear and unambiguous – Dirico v. Redland Estates, Inc., No. 3D12-3132 (Fla. 3d DCA Sept. 10, 2014) (substitute opinion on rehearing, reversed and remanded)
  • Jurisdiction: trial court lacked subject matter jurisdiction and erred by entering summary judgment in favor of lender after action had been dismissed for lack of prosecution – Magloire v. The Bank of New York, No. 4D11-4540 (Fla. 4th DCA Sept. 10, 2014) (reversed and remanded)
  • Foreclosure: trial court erred by entering judgment of foreclosure without taking testimony or considering evidence – Muhammad v. BAC Home Loans Servicing, LP, No. 4D13-1580 (Fla. 4th DCA Sept. 10, 2014) (reversed and remanded)
  • Email Service: summary judgment improper where plaintiff failed to serve pleadings on defendant at designated e-mail address – Charles v. H&R Block Bank, No. 4D13-2895 (Fla. 4th DCA Sept. 10, 2014) (reversed and remanded)
  • Trial Notice: judgment based on defendants’ failure to appear at trial set within less than 30 days from notice was improper per Florida Rule of Civil Procedure 1.440(c) – BAC Home Loans Servicing L.P. v. Parrish, No. 1D13-4150 (Fla. 1st DCA 2014) (reversed and remanded)
  • Foreclosure/Standing: plaintiff failed to demonstrate it had standing at lawsuit’s commencement and, further, assigned note after lawsuit but never received assignment of note back – Pennington v. Ocwen Loan Servicing, LLC, No. 1D13-3072 (Fla. 1st DCA Sept. 16, 2014) (reversed and remanded for further proceedings).
  • Foreclosure/Contractor’s Lien: reversing final judgment of foreclosure in favor of entity that purchased loans because fact issue remained regarding whether entity created investors that controlled developers for improper purpose of extinguishing contractor’s liens – CDC Builders, Inc. v. Biltmore-Sevilla Debt Investors, LLC, No. 3D13-603 (Fla. 3d DCA Sept. 17, 2014) (reversing summary judgment and remanding for further proceedings).
  • Foreclosure/Striking Pleadings: affirming striking of pro se defendant’s pleadings for willful and deliberate failure to comply with multiple orders – Ledo v. Seavie Resources, LLC, No. 3D14-21 (Fla. 3d DCA Sept. 17, 2014).
  • Quiet Title/Amendment of Pleadings: property owners should have been permitted leave to amend before dismissal of their quiet title claim with prejudice – Ledo Unrue v. Wells Fargo Bank, N.A., No. 5D13-3443 (Fla. 5th DCA Sept. 19, 2014).
  • Sinkhole/Appraisal Clause: appraiser could determine method or scope of necessary repairs when determining “amount of loss” where insurer admitted insured sustained covered loss, but appraiser had to be disinterested – Fla. Ins. Guar. Ass’n, etc v. Branco, No. 5D13-2929 (Fla. 5th DCA Sept. 19, 2014) (reversing order allowing party’s attorney to serve as appraiser, but affirming in all other respects)

FINANCIAL SERVICES UPDATE – NONE

TITLE INSURANCE UPDATE

  • Duty to Defend: where insurer knew of existing litigation against insured, insurer had duty to provide defense; thus, insurer liable for pre-tender costs of defense even before insured requested defense – CH Properties, Inc. v. First American Title Ins. Co., Case No. 13-1354 (D. Puerto Rico Sept. 9, 2014) (granting in part, denying in part cross motions for summary judgment)
  • Duty to Defend: where allegations of complaint do not directly contest or otherwise affect validity of insured interest, insurer has no duty to defend pursuant to eight corners rule – CH Properties, Inc. v. First American Title Ins. Co., Case No. 13-1354 (D. Puerto Rico Sept. 9, 2014) (granting in part, denying in part cross motions for summary judgment)
  • Coverage: presence of trespassers does not give rise to coverage under leasehold title insurance policy – CH Properties, Inc. v. First American Title Ins. Co., Case No. 13-1354 (D. Puerto Rico Sept. 9, 2014) (granting in part, denying in part cross motions for summary judgment)
  • Coverage: title insurance does not insure against imposition of taxes assessed after date policy issued and a pending tax appeal did not render title unmarketable or constitute a defect in title – Princeton South Investors, LLC v. First American Title Ins. Co., Case No. A-0850-12T3 (N.J. App. Sept. 8, 2014)(affirming summary judgment)
  • Economic Loss Rule: claim based on failure to properly carry out title search undertaken pursuant to written contract sounds in contract and not tort, no matter how plead – Dawkins v. First American Title Co., LLC, Case No. 07-12-00437-CV (Tex. App. Sept. 11, 2014)(affirming summary judgment)
  • Release: where insured is paid pursuant to a title insurance policy and signs a release of all claims relating to the defect and the insurer issues an endorsement excepting the instrument creating the defect from coverage, insured’s future claims are barred – Chorches v. Stewart Title Guar. Co., Case No. 3:13-cv-01182 (D. Conn. Sept. 10, 2014) (order granting motion to dismiss and summary judgment)

source: Carlton Fields

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