Real Property and Business Litigation Report

Volume V, Issue 19

May 12, 2012

Manuel Farach

Give Kids the World, Inc. v. Sanislo, — So.3d —-, 2012 WL 1645607 (Fla. 5th DCA 2012).

Exculpatory clauses are disfavored under the law, but unambiguous exculpatory contracts are enforceable unless they contravene public policy. The wording of the exculpatory clause must be clear and understandable so that an ordinary and knowledgeable person will know what he or she is contracting away. In examining exculpatory clauses, courts will review the unequal bargaining power of the parties only in the public utility or public function context.

Heck v. Bank Liberty, — So.3d —-, 2012 WL 1623518 (Fla. 1st DCA 2012).

A party’s “usual place of abode” for purposes of valid service under section 48.031(1)(a) is the place where the defendant is actually living at the time of service. The word “abode” means one’s fixed place of residence for the time being when service is made. If a person has more than one residence, he must be served at the residence in which he is actually living at the time of service.

Velasquez v. Ettenheim, — So.3d —-, 2012 WL 1605239 (Fla. 3d DCA 2012).

The statutory process for distribution of surplus funds after a foreclosure sale, Fla. Stat. § 197.582 (2), does not permit a third party creditor of the foreclosed property owner to receive the surplus funds even if the foreclosed property owner does not object. Per the statute, unclaimed funds go first to governmental units holding lien claims against the property, then non-governmental lienholders in order of priority, and then to the foreclosed property owners.

Bank of Montreal, Harris, N.A. v. Estate of Antoine, — So.3d —-, 2012 WL 1605248 (Fla. 4th DCA 2012).

A deposition may be used in court even though the deposition was not complete as the witness died before cross-examination.

Taplin v. Taplin, — So.3d —-, 2012 WL 1605253 (Fla. 3d DCA 2012).

The statute of limitations is inapplicable to shield trustees from claims of breach of duty by the beneficiaries of the trust.

Suarez v. Benihana Nat. of Florida Corp., — So.3d —-, 2012 WL 1605268 (Fla. 3d DCA 2012).

Contradictions and discrepancies in depositions typically do not rise to the high level needed to dismiss a suit on the basis of fraud on the court.

Becker v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2012 WL 1605432 (Fla. 4th DCA 2012).

Mortgagee did not violate Florida Rule of Civil Procedure 1.110 (b) (foreclosure complaints must be verified) by attaching the verification as a separate sheet to the foreclosure complaint rather than incorporating it into the foreclosure complaint.

Younessi v. Recovery Racing, LLC, — So.3d —-, 2012 WL 1605483 (Fla. 4th DCA 2012).

If the agreement of the parties indicates that American Arbitration Association rules apply, it is error for a trial court to direct the parties to select an arbitrator in a fashion inconsistent with AAA rules.

Figueroa v. MERSCORP, Inc., Slip Copy, 2012 WL 1648879 (11^th Cir. 2012).

The Rooker-Feldman Doctrine applies to foreclosure actions that were conclusively litigated in state court.

In re McNeal, Slip Copy, 2012 WL 1649853 (11^th Cir. 2012).

A debtor may “strip down” a wholly unsecured lien on their home under 11 U.S.C. § 502; Dewsnup v. Timm, 502 U.S. 410, (1992) applies only to partially unsecured liens.

Insurance Co. of the West v. Island Dream Homes, Inc., — F.3d —-, 2012 WL 1588799 (11^th Cir. 2012).

Regardless of whether defendants are considered “professionals” under Moransais v. Heathman, 744 So.2d 973 (Fla.1999), a plaintiff must demonstrate a defendant’s actions fell below the standard of care required for that particular trade or industry.