Real Property and Business Litigation Report
Volume IV, Issue 48
November 26, 2011
Fortune Intern. Hospitality, LLC v. M Resort Residences Condominium Ass’n, Inc., — So.3d —-, 2011 WL 5864545 (Fla. 3d DCA 2011).
A receiver may not release disputed property under the care of the receiver to a party in the dispute unless the trial court determines doing so preserves and/or benefits the receivership estate. Accordingly, releasing funds to one party to pay one side’s attorneys’ fees when the funds are in dispute is prohibited.
Duke v. HSBC Mortg. Services, LLC, — So.3d —-, 2011 WL 5864572 (Fla. 4th DCA 2011).
Material issues of fact are created when allegations of the complaint contradict attachments to the complaint, and accordingly, summary judgment is not proper.
Venture Holdings & Acquisitions Group, LLC v. A.I.M. Funding Group, LLC, — So.3d —-, 2011 WL 5864656 (Fla. 4th DCA 2011).
A party who assigns a note as collateral for a loan no longer has standing to foreclose the note and mortgage. A defendant who has been defaulted does not have the ability to raise standing as a defense, but does not waive the defense of ownership of the promissory note at judgment stage.
MHB Const. Services, L.L.C. v. RM-NA HB Waterway Shoppes, L.L.C., — So.3d —-, 2011 WL 5864801 (Fla. 4th DCA 2011).
An owner landlord signing a Notice of Commencement for a tenant does not, without more, subject the owner’s estate to construction liens if the tenant does not pay the contractor.
KJB Village Property, LLC v. Craig M. Dorne, P.A., — So.3d —-, 2011 WL 5864817 (Fla. 3d DCA 2011).
Former client could not prove malpractice against attorney when client abandoned claim against developer for failure to deliver marketable title to unit; failure to proceed against the developer resulted in former client failing to prove redressable harm as the result of attorneys’ work.
Gessa v. Manor Care of Florida, Inc., — So.3d —-, 2011 WL 5864823 (Fla. 2011).
Shotts v. OP Winter Haven, Inc., — So.3d —-, 2011 WL 5864830 (Fla. 2011).
Courts (not arbitrators) must determine whether arbitration provisions violate public policy, limitation of liability provisions in nursing home contracts undermine statutorily granted remedies and are unenforceable, and limitation of remedies provisions are not severable if there is no delegation provision.
Gorrin v. Poker Run Acquisitions, Inc., — So.3d —-, 2011 WL 5865968 (Fla. 3d DCA 2011).
Unless there is an express waiver of obligations, the lender remains charged with the responsibility to dispose of collateral in a fashion so as not to harm the borrower.