Case Law Update February 19, 2011 (Volume IV, Issue

Manuel Farach

One of the groups hardest hit by the mortgage foreclosure crisis are community associations, both condominium and homeowner. The Second District Court of Appeal may just have given the associations a silver bullet in South Bay Lakes Homeowners Ass’n, Inc. v. Wells Fargo Bank, N.A., — So.3d —-, 2011 WL 561188 (Fla. 2d DCA 2011). Many homeowners are not represented in foreclosure proceedings, but community associations often are and their efforts are frustrated by foreclosing lenders who file and then do not prosecute the case forward. The lenders are able to do so because their exposure to association dues are limited by Fla. Stat. §§ 718 (1)(b) and 720.3085. The problem is, of course, that if a delinquent homeowner is not paying association dues and the lender is not foreclosing (and also not paying association dues during the foreclosure process), the paying members of the association have to pick up the slack for the non-paying member. Some associations have tried inventive ways to try to get lenders to foreclose their loan such as filing a motion for summary judgment against themselves and asking the property be sold or having a receiver appointed for all non-paying members. The jury is out on these methods, but the South Bay Lakes opinion gives association lawyers an additional method to employ, i.e., moving for summary judgment and seeking § 57.105 fees if the lender did not have standing to sue when it filed suit. As recent events have demonstrated, many lenders did not have standing to sue when they filed suit, so this is no idle threat and it is anticipated many association lenders will start using this method.

This week’s full Case Law Update can be found here Issue 8

Case Law Update for February 12, 2011 (Volume IV, Issue 7)

Manuel Farach

The First District Court of Appeal expanded on the Florida Supreme Court’s opinion in Butler v. Yusem and discussed the differences between fraudulent and negligent misrepresentations, the need for justifiable reliance in negligent misrepresentation cases but not in fraudulent misrepresentation cases. Moreover Judge Van Nortwick’s well written opinion clarified how an investigation or other due diligence does not preclude a party from claiming representations were made to induce it into a contract. The key, the court explained, is whether there was justifiable reliance by the offeree, and that is there is no need to prove the misrepresentation was the only or the substantial part of the representation. Specialty Marine & Industrial Supplies, Inc. v. Venus, — So.3d —-, 2011 WL 479912 (Fla. 1st DCA 2011).

In a closely watched case, the First District Court of Appeal permitted a class action against title companies permitted to proceed despite objections of individualized legal issues based on a pure legal argument put forth by the class members. The First District may have, however, given with one hand and taken away with another in that its opinion stated that motions for summary judgment are proper in class actions, even after class certification. This was apparently a statement to the trial court that it should review the legal basis for the certification, perhaps on a motion for summary judgment basis. Commonwealth Land Title Ins. Co. v. Higgins, — So.3d —-, 2011 WL 362415 (Fla. 1st DCA 2011).

In a strange twist, it may be the federal courts that begin to un-muddle the morass of uncertainty that plagues practice under offers of judgments/proposals for settlement. Confronted with a complex case that involved several proposal for settlement issues, the Eleventh Circuit certified not one, but three, questions to the Florida Supreme Court:
Does an offer carry over to a second trial?
Does conditioning an offer on a release to a third party make that offer a “joint proposal” under the Rule?
Does section 768.79 apply to cases governed by the substantive law of a state other than Florida?
Answering these questions will not completely distill Florida law on proposals for settlement, but will got a long way to removing some of the confusion. Auto-Owners Ins. Co. v. Southeast Floating Docks, Inc., — F.3d —-, 2011 WL 383973 (11th Cir. 2011).

The full Case Law Update can be found here Issue 7

Business and Casel Law Update for February 5, 2011 (Volume IV, Issue 6)

Manuel Farach

Debtor-creditor cases, including mortgage foreclosures, dominate this week’s Update. First, the Florida Supreme Court, upon a certified question from the Eleventh Circuit Court of Appeals, held that a bankruptcy debtor who waives the benefits of the homestead protections of Article X, Section 4 of the Florida Constitution, can increase their personal property exemption up to $4,000. This decision resolves a dispute amongst several bankruptcy courts. Osborne v. Dumoulin, — So.3d —-, 2011 WL 320986 (Fla. 2011). Then, the Florida Supreme Court held that state law claims are tolled during bankruptcy irrespective of whether the claim was dismissed for lack of jurisdiction in bankruptcy court. Krause v. Textron Financial Corp., — So.3d —-, 2011 WL 320989 (Fla. 2011).

The Fourth District Court of Appeal also issued two opinions of particular note, beginning with a decision which held that a court may not strike a notice of voluntary dismissal, even in the face of allegations there was fraud on the court, unless the defendant is seriously harmed by the notice of voluntary dismissal. Pino v. Bank of New York Mellon, — So.3d —-, 2011 WL 309441 (Fla. 4th DCA 2011). The court also held that arbitration cannot be compelled if doing so impacts the determination of remedial statutes such as the Florida Deceptive and Unfair Trade Practices Act. McKenzie v. Betts, — So.3d —-, 2011 WL 309318 (Fla. 4th DCA 2011).

This week’s Update can be found here: Issue 6