News & Publications

Jul 1st, 2019

Business Litigation & Real Property Case Update, June 2019

June 27, 2019

Knick v. Township of Scott, Case No. 17–647 (2019).

The state litigation requirement of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985) (parties must first sue in state court when seeking just compensation for a Fifth Amendment claim under 42 U. S. C. §1983) is overruled. A property owner may bring Fifth Amendment claims in federal court when government takes property without just compensation without first seeking relief in state court.

Braden Woods Homeowners Association, Inc. v. Mavard Trading, Case No. 2D17-3795 (Fla. 2d DCA 2019).

A plaintiff challenging a development permit decision need not exhaust administrative remedies prior to filing suit if the government action is ultra vires, i.e., the government lacks the authority to take the action under governing law.

YS Catering Holdings, Inc. v. Attollo Partners LLC, Case No. 3D18-1790 (Fla. 3d DCA 2019).

A party who enters into a settlement agreement and release after having asserted prior to settlement that the opposing party had defrauded them cannot argue oral misrepresentations of the opposing party to set aside the settlement.

Laptopplaza, Inc. v. Wells Fargo Bank, NA, Case No. 3D18-131 (Fla. 3d DCA 2019).

A lender, under Florida Statute section 701.04(1)(a), can be held responsible for “deliberate inflation of the amounts ‘properly due under or secured by a mortgage.’”

Hurchalla v. Lake Point Phase I, LLC, Case Nos. 4D18-1221 & 4D18-1632 (Fla. 4th DCA 2019).

Citizens have a qualified privilege under both the United State Constitution and Florida common law to speak with government requesting the discontinuation of a real estate development project, but the privilege may be overcome by a showing of “actual malice” (knowledge of falsity or reckless disregard of truth, or falsity as shown by clear and convincing evidence) in cases under the First Amendment, and by “express malice” (where the primary motive, as shown by a preponderance of the evidence, is shown to be an intention to injure the plaintiff) under Florida common law.

June 25, 2019

Landau v. Roundpoint Mortgage Servicing Corporation, Case No. 17-11151 (11th Cir. 2019).

A motion to reschedule (as opposed to cancel) a foreclosure sale after a borrower submits a complete loss mitigation package does not violate the prohibition under 12 C.F.R. § 1024.41(g) of Regulation X, 12 C.F.R. § 1024.1, et seq. that a lender may not schedule a foreclosure sale after a borrower has submitted a complete package.

Deutsche Bank Trust Company Americas v. Page, Case No. 4D18-816 (Fla. 4th DCA 2019) (en banc).

A borrower who prevails on a “no standing” defense is not entitled to an award of attorney’s fees; conflict certified with Madl v. Wells Fargo Bank, N.A., 244 So. 3d 1134 (Fla. 5th DCA 2017) and Harris v. Bank of New York Mellon, 44 Fla. L. Weekly D141 (Fla. 2d DCA Dec. 28, 2018).

Perera v. Diolife LLC, Case No. 4D18-892 (Fla. 4th DCA 2019).

On rehearing and upon applying Professional Insurance Corp. v. Cahill, 90 So. 2d 916 (Fla. 1956), the Fourth District holds that "no oral modification" clauses are enforceable as written unless the oral modification "has been accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it." Moreover, a seller of stock in a corporation has three options upon breach by a buyer: treat the stock as belonging to the buyer and recover the contract price; resell the stock as an agent of the buyer and recover the difference between the contract price and the actual selling price; or keep the stock and recover as damages the difference between the contract price and the value of the stock on date of breach.

Ricci v. Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC, Case No. 4D18-1111 (Fla. 4th DCA 2019).

Parties should not take any action on state court orders after a removal notice has been filed until a remand order is issued. If remand order is entered, the state trial court should promptly vacate the order sua sponte, or on motion of a party, and then the immediately re-enter the vacated order with notice.

Hoch v. Loren, Case No. 4D18-1407 (Fla. 4th DCA 2019).

An attorney who copies his client on an allegedly defamatory cease and desist letter sent to an opposing party has not “published” a defamatory statement, as the client and attorney’s interests are considered unified.

Green Tree Servicing, LLC v. Simms, Case No. 5D17-725 (Fla. 5th DCA 2019).

Collection notes in a foreclosure action should be admitted into evidence upon the proper laying of a predicate.

June 19, 2019

Taggart v. Lorenzen, Case No. 18–489 (2019).

“A [bankruptcy] court may hold a creditor in civil contempt for violating a discharge order if there is no fair ground of doubt as to whether the order barred the creditor’s conduct.” In other words, contempt is appropriate when a creditor violates a discharge order based on their objectively unreasonable view of the order.

Fountainbleau, LLC v. Hire Us, Inc., Case No. 2D18-4068 (Fla. 2d DCA 2019).

An order compelling parties to attend arbitration is not an order determining a party’s “entitlement” to arbitration, and thus is not an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).

Green Emerald Homes, LLC v. 21st Mortgage Corporation, Case No. 2D17-2192 (Fla. 2d DCA 2019).

A titleholder to real property, who purchased before litigationand before a lis pendens was filed, is entitled to defend a foreclosure suit including questioning the amounts due on the note and mortgage.

Rokosz v. Haccoun, Case No. 3D18-2459 (Fla. 3d DCA 2019).

A trial court cannot deny a party their right to have an evidentiary hearing on their Motion to Discharge Lis Pendens by reconsidering a prior order establishing a lis pendens.

Goodenow v. Nationstar Mortgage LLC, Case No. 3D18-1480 (Fla. 3d DCA 2019).

A loan servicer entitled to enforce a note can enforce the jury trial waiver contained in the mortgage.

MBlock Investors, LLC v. Bovis Lend Lease, Inc., Case No. 3D18-501 (Fla. 3d DCA 2019).

A lender that acquired property through foreclosure is a “successor and assign” of its borrower and bound by a pre-foreclosure release signed by its borrower that ran to successors and assigns.

Fassy v. The Bank Of New York Mellon, Case No. 4D18-1548 (Fla. 4th DCA 2019).

A plaintiff whose suit is dismissed for lack of standing is still liable for taxable costs, as costs are awarded pursuant to Florida Rule of Civil Procedure 1.420(d) and not the prevailing party provisions of the mortgage.

Deutsche Bank Trust Company Americas v. JB Investment Realty, LLC, Case No. 4D18-3240 (Fla. 4th DCA 2019).

A foreclosing lender need only prove the loan is in default and need not introduce a loan payment history “from the beginning” in order to prove default.

June 4, 2019

The School District of Escambia County v. Santa Rosa Dunes Owners Association, Inc., Case No. 1D18-91 (Fla. 1st DCA 2019).

The Public Official Standing Doctrine (“a public official may not defend his nonperformance of a statutory duty by challenging the constitutionality of the statute”) applies to keep a school district from disputing a property owner’s tax assessment challenge.

Toscano Condominium Association, Inc. v. DDA Engineers, P.A., Case No. 3D18-1762 (Fla. 3d DCA 2019).

An order denying a motion to amend that does not dismiss the action is an interlocutory order that cannot be appealed until the conclusion of the case.

City of Pembroke Pines v. Corrections Corporation of America, Inc., Case No. 4D18-3168 (Fla. 4th DCA 2019).

Claims against a municipality for declaratory judgment, promissory estoppel, tortious interference with contract, and tortious interference with an advantageous businessrelationship are barred by Florida Statute section 768.28.

Avila v. HMC Assets, Case No. 5D18-1929 (Fla. 5th DCA 2019).

A trial court may not reserve jurisdiction to enter a deficiency judgment in a foreclosure final judgment when the borrowers have not been personally served.

Nazia, Inc. v. Amscot Corporation, Case No. 5D18-2502 (Fla. 5th DCA 2019).

Whether an instrument is a lease or a license, and whether it is revocable or non-revocable, is determined from the terms of the instrument and not its title.