News & Publications

Feb 28th, 2019

Business Litigation & Real Property Case Update, February 2019

February 25, 2019 |  February 18, 2019  |  February 11, 2019February 4, 2019

Week ending February 25, 2019

Timbs v. Indiana, Case No. 17–1091 (2019).

The Constitution's prohibition against excessive fines applies to the States.

Perez v. Deutsche Bank National Trust Company, Case No. 2D17-1043 (Fla. 2d DCA 2019).

Merely introducing a default letter without introducing evidence the letter was actually sent does not satisfy the condition precedent requirement of a mortgage.

Papunen v. Bay National Title Company, Case No. 3D17-938 (Fla. 3d DCA 2019).

A buyer of foreclosed property from a lender, which buyer has signed a general release running to the lender for the purchase, may bring suit against the title company that missed post-foreclosure matters that diminished buyer's title, notwithstanding the release to the lender.

Obermeyer v. Bank of New York, Case No. 3D18-1637 (Fla. 3d DCA 2019).

A prevailing foreclosure defendant may not be awarded "fees for fees," i.e., for litigating the amount of attorney's fees to be awarded.

Breger v. Robshaw Custom Homes, Inc., Case No. 5D18-376 (Fla. 5th DCA 2019).

An offeree defendant may not bind all three joint tenant plaintiffs by accepting the offer of only one offering plaintiff, and conditioning the acceptance upon dismissal of the lawsuit by all three joint tenant plaintiffs, including requiring dismissal by the two offerors whose proposal for settlement it did not accept.

Winter Green at Winter Park Homeowners Association, Inc. v. Ware, Case No. 5D18-804 (Fla. 5th DCA 2019).

A trial court, under its inherent power to sua sponte reconsider its own rulings, may dissolve a temporary injunction regarding board elections without a motion to dissolve being filed.

February 18, 2019

Amalgamated Transit Union, Local 1579 v. City of Gainesville, Case No. 1D17-4382 (Fla. 1st DCA 2019).

A trial court’s order vacating an arbitration award and remanding the case for a new arbitration constitutes irreparable harm and entitles the aggrieved party to petition for certiorari; conflict certified with the Third, Fourth, and Fifth District Courts of Appeal. 

Socarras v. Vassallo, Case No. 3D17-2579 (Fla. 3d DCA 2019).

A home equity line of credit does not convert a non-marital asset into a marital asset such that a former spouse is entitled to 50% of the value of the asset. 

Benzrent 1, LLC v. Wilmington Savings Fund Society, FSB, Case No. 3D18-817 (Fla. 3d DCA 2019).

Because the holding of Pealer v. Wilmington Trust National Ass’n, 212 So. 3d 1137 (Fla. 2d DCA 2017) on the issue of standing was a special concurrence, trial courts are required to follow 3709 N. Flagler Drive Prodigy Land Trust v. Bank of America, N.A., 226 So. 3d 1040 (Fla. 4th DCA 2017), and allow a subsequent title owner to challenge a foreclosing plaintiff’s lack of standing to foreclose on a mortgage. 

Asset Recovery Group, LLC v. Wright, Case No. 3D18-2351 (Fla. 3d DCA 2019).

A receiver appointed by a trial court arising out of an apartment complex foreclosure may not be sued for personal injury arising out of management of the complex, unless the receiver acted outside the scope of the receivership. 

Deutsche Bank National Trust Company v. Viteri, Case Nos. 4D17-3689 and 4D18-388 (Fla. 4th DCA 2019).

A lender does not have to prove when a loan was placed into a pool if it holds the original note at trial and the note placed into evidence at trial is the same as attached to the complaint.

 

February 11, 2019

Al-Rayes v. Willingham, Case Nos. 18-11059, 18-11539 (11th Cir. 2019).
A judgment debtor husband and his non-debtor wife can form an "association in fact" under Boyle v. United States, 556 U.S. 938, 944 (2009) (individuals in an association-in-fact enterprise are “associated together for a common purpose of engaging in a course of conduct”) for R.I.C.O. liability purposes.
 
Verizon Wireless Personal Communications, LP v. Bateman, Case No. 2D18-161 (Fla. 2d DCA 2019).
An arbitration agreement survives a bankruptcy discharge because the arbitration provision is not a "debt" or "claim" as defined under the Bankruptcy Code. 
 
Zurich American Insurance Company v. Puccini, LLC, Case No. 3D17-0690 (Fla. 3d DCA 2019).
The Third District employs the "case by case" approach in determining whether a tenant is a co-insured under an insurance policy covering a landlord, and as a result, whether the tenant is immune from insurer subrogation actions by the insurer.
 
Yost-Rudge v. A to Z Properties, Inc., Case No. 4D17-3204 (Fla. 4th DCA 2019).
A homestead is not "abandoned" (thus permitting one spouse to sell without the signature of both spouses) when the non-consenting spouse is involuntarily forced off the property. 
 
Chaudhry v. Pedersen, Case No. 5D18-709 (Fla. 5th DCA 2019).
All parties having an interest in a disputed property are required to be joined to determine the true ownership of the property. In other words, when a plaintiff alleges he entered into an agreement to purchase property in name of one spouse to then be transferred to plaintiff, but instead that husband transferred property to himself and his wife, the other spouse (wife) who owns disputed property with her spouse is required to be joined.

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