Real Property & Title Insurance Update: Weeks Ending November 4 & 11, 2016

Author:Ms Sarah Cortvriend, Scott D. Feather, Jourdan R. Haynes, Cynthia Morales, Ilan A. Nieuchowicz, Christopher Smart and Matthew J. Tyson
Profession:Carlton Fields


Foreclosure/Constitutional Challenge: record title owner's argument that Florida Statutes section 702.035, governing "Legal notice concerning foreclosure proceedings," is an unconstitutional special law was improper where record title owner failed to comply with Florida Rule of Civil Procedure 1.071, governing constitutional challenges to state statutes - Shelton v. The Bank of NY Mellon, Case No. 2D16-952 (Fla. 2d DCA November 9, 2016) (Affirmed). Foreclosure/Voluntary Dismissal: where foreclosing bank filed a notice of voluntary dismissal, the trial court was instantaneously divested of jurisdiction and trial court was in error for subsequently entering amended final judgment and order denying defendant's motion for attorneys' fees and costs - The Bank of NY Mellon v. Poker Run Acquisitions, Inc., Case Nos. 3D13-2607, 3D13-2379 (Fla. 3d DCA November 9, 2016) (Reversed and remanded). Foreclosure/Rule 1.540(b)(4) Motion: borrower's verified motion to vacate final judgment of foreclosure under Rule 1.540(b)(4) was improper where it raised for the first time that foreclosing bank lacked standing - Rincon v. Bank of Am., N.A,, Case No. 3D16-76 (Fla. 3d DCA November 9, 2016) (affirmed). Foreclosure: final judgment of foreclosure in favor of lender was proper where at the time it acquired its mortgage interest, lender lacked constructive or actual notice of the existence of an unrecorded agreement allegedly bestowing a previously-acquired interest in the property - White v. Greymar Associates, LLC, Case No. 3D16-617 (Fla. 3d DCA November 9, 2016) (Affirmed). Foreclosure/Statute of Limitations: bank's prior acceleration in foreclosure action that was involuntarily dismissed did not trigger statute of limitations to bar future foreclosure based on a separate default and filed within 5 years thereof - Bartram v. U.S. Bank National Assoc., etc., et al., Case No. SC14-1265 (Fla. Nov. 3, 2016) (affirmed) Foreclosure/Standing: bank proved standing by presenting evidence of pooling and servicing agreement and corresponding mortgage loan schedule that expressly reflected borrower's loan - Bolous v U.S. Bank National Assoc., etc., et al., Case No. 4D15-2608 (Fla. Nov. 2, 2016) (affirmed; distinguishing Lewis v U.S. Bank Nat's Ass'n., 188 So. 3d 46 (Fla. 4th DCA 2016)) TITLE INSURANCE UPDATE

Class Action/Bipolar Arbitration: district court did not err in...

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