Real Property and Business Litigation Report
Volume IV, Issue 30
July 23, 2011
Novastar Mortg., Inc. v. Bucknor, — So.3d —-, 2011 WL 2936753 (Fla. 2d DCA 2011).
A trial court must set an evidentiary hearing if there are conflicting affidavits seeking vacation of a judgment under Florida Rule of Civil Procedure 1.540.
Chen v. Whitney Nat. Bank, — So.3d —-, 2011 WL 2937303 (Fla. 1st DCA 2011).
A mortgage foreclosure summary judgment which does not address all factual issues surrounding an affirmative defense of violation of the Equal Credit Opportunity Act, 15 U.S.C. § 1691 (a creditor may not require a spouse without interest in the mortgaged asset to sign on a guaranty when the applicant qualifies for credit without the spouse’s credit) will be overturned.
Mazine v. M & I Bank, — So.3d —-, 2011 WL 2937307 (Fla. 1st DCA 2011).
Absent meeting the business records requirements of Florida Statute § 90.803 (6), an affidavit may not be introduced into evidence to prove the contested matters in the case. Moreover, a foreclosure plaintiff must prove at trial that it possess standing to proceed.
Craigside, LLC v. GDC View, LLC, — So.3d —-, 2011 WL 2937310 (Fla. 1st DCA 2011).
A prospective purchaser who sends the seller a communication that it will not close on the scheduled date has anticipatorily repudiated the contract, and the seller may treat the contract as broken.
Tettamanti v. Opcion Sociedad Anonima, — So.3d —-, 2011 WL 2848625 (Fla. 3d DCA 2011).
After a foreign judgment has been recognized in Florida under the Florida Uniform Out-of-Country Foreign Money-Judgment Recognition Act, collateral attacks on the judgment must be made in the foreign country where the judgment originated. An exception lies, however, for fraud in obtaining recognition of the judgment in Florida.
Barclay Square Associates, Ltd. v. Plantfind.com, — So.3d —-, 2011 WL 2848659 (Fla. 4th DCA 2011).
A lease subject to the statute of frauds may be orally modified in order to avoid injustice when one party relies on the oral modification.
Heritage 5, LLC v. Estrada, — So.3d —-, 2011 WL 2848664 (Fla. 4th DCA 2011).
A landowner is entitled to change surface water flows on her land as she sees fit so long as the change does not unreasonably affect neighboring landowners.
Davis v. Hinson, — So.3d —-, 2011 WL 2752707 (Fla. 1st DCA 2011).
In order to be effective, a deed conveying property owned by co-tenants must be signed by all co-tenants and must adequately describe the property being conveyed. A plaintiff in ejectment who deraigns title based on a deed with these defects does not have standing to pursue the claim of ejectment.
Robertson Group, P.A. v. Robertson, — So.3d —-, 2011 WL 2752762 (Fla. 1st DCA 2011).
An arbitration agreement that compels arbitration for disputes arising out of the operating agreement of a company also compels arbitration regarding the dissolution of the company and payment of creditors.