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Case Law Update for December 20, 2014

Manuel Farach | December 20, 2014 in Uncategorized | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 51

December 20, 2014

Manuel Farach

 

Hilton Hotels Corp. v. Anderson, — So.3d —-, 2014 WL 7191042 (Fla. 5th DCA 2014).

Even though the name of the defendant was inserted in the title of the document, the phrase “PLAINTIFF agrees to settle any and all claims asserted against [Defendant]” without entering the name of the specific Defendant to whom the proposal was made rendered the proposal for settlement unenforceable as it was not clear which of the multiple defendants was being addressed in the specific phrase.

 

In re Amendments to Florida Rule of Judicial Admin. 2.420, — So.3d —-, 2014 WL 7178909 (Fla. 2014).

Florida Rule of Judicial Administration 2.420 is amended to permit public access to court records subject to the security matrix outlined in Florida Supreme Court Administrative Order 14-19.

 

Montreux at Deerwood Lake Condominium Ass’n, Inc. v. Citibank, N.A., — So.3d —-, 2014 WL 7183213 (Fla. 1st DCA 2014).

A foreclosing party may not, post-judgment, seek to determine the amounts due a condominium association by moving to “enforce” a foreclosure judgment (which did not mention association assessments) more than six months after judgment.

 

Hound Mounds, Inc. v. Finch, — So.3d —-, 2014 WL 7150482 (Fla. 4th DCA 2014).

A challenge to the entire agreement (which contains an arbitration clause) must be made to the arbitrator; a challenge as to the arbitration clause alone is to the court.

 

Great American Ins. Co. of New York v. 2000 Island Blvd. Condominium Ass’n, Inc., — So.3d —-, 2014 WL 7156894 (Fla. 3d DCA 2014).

A trial judge who tells a defendant to “fork over the money” has abandoned their neutrality, and cannot continue to preside over the case.

 

Deutsche Bank Trust Co. Americas v. Beauvais, — So.3d —-, 2014 WL 7156961 (Fla. 3d DCA 2014).

Dismissal of a foreclosure complaint without prejudice does not decelerate the loan and stop the running of the statute of limitations, distinguishing U.S. Bank Nat. Ass’n. v. Bartram, 140 So.3d 1007 (Fla. 5th DCA 2014) review granted, Bartram v. U.S. Bank Nat. Ass’n, Nos. SC14–1265, SC14–1266, SC14–1305 (Fla. Sept. 11, 2014).

 

Ezem v. Federal Nat. Mortg., — So.3d —-, 2014 WL 7094295 (Fla. 1st DCA 2014).

A husband is permitted to intervene in the foreclosure of his wife’s home, even if he did not sign the note and mortgage, because foreclosure affects his homestead rights.

 

 

U.S. Bank Nat. Ass’n v. Farhood, — So.3d —-, 2014 WL 7095306 (Fla 1st DCA 2014).

A trial court may not sanction a party by altering that party’s lien priorities as doing so impermissibly alters the statutory framework for lien priorities.

 

Kolodziej v. Mason, — F.3d —-, 2014 WL 7180962 (11th Cir. 2014).

A criminal defense attorney’s televised statement that “I challenge anybody to show me—I’ll pay them a million dollars if they can [arrive at the Atlanta airport and travel to a specific hotel all within 28 minutes]” is not, under the circumstances which it was made, an offer that could be accepted.

 

 


Case Law Update for December 13, 2014

Manuel Farach | in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 50

December 13, 2014

Manuel Farach

 

Orange County v. Hewlings, — So.3d —-, 2014 WL 6990570 (Fla. 5th DCA 2014).

A “PCA” opinion has no precedential value, while a “per curiam” opinion does.

 

In re Amendments to Florida Rules of Civil Procedure, — So.3d —-, 2014 WL 6977929 (Fla. 2014).

New rules of procedure for foreclosures, including new Florida Rule of Civil Procedure 1.115 regarding pleading requirements for foreclosure complaints.

 

Moskalenko v. Israel, — So.3d —-, 2014 WL 6910660 (Fla. 4th DCA 2014).

A contemnor may not be held in custody indefinitely if he has no ability to purge, even if his inability to purge is due to his own actions.

 

Jallali v. Knightsbridge Village Homeowners’ Ass’n, Inc., — So.3d —-, 2014 WL 6910686 (Fla. 4th DCA 2014).

A trial court may not enter an amended final judgment while the appeal of the prior final judgment is still pending.

 

Suntrust Mortg. v. Torrenga, — So.3d —-, 2014 WL 6910693 (Fla. 4th DCA 2014).

Missing a trial because of a calendaring error is excusable neglect as it constitutes “inaction [that] results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.”

 

Jonas v. Jonas, — So.3d —-, 2014 WL 6910820 (Fla. 4th DCA 2014).

A party may not attack a foreign judgment that has been domesticated in Florida based on the operation of the foreign judgment; collateral attacks only go judgment’s validity.

 

Nikooie v. JPMorgan Chase Bank, N.A., — So.3d —-, 2014 WL 6911148 (Fla. 3d DCA 2014).

The Third District distinguishes itself from the Fourth District and holds that failure to pay documentary stamp and intangible taxes under Florida Statute § 201.08(1)(b) prohibits enforcement of the mortgage (and not just future advances under the mortgage). The Third District additionally held a lender may subrogate to its own loans so long as third parties are no prejudiced, and a plaintiff may bring in a new party by amendment and by doing so, amend its lis pendens (even if the amendment is beyond the thirty days of  Florida Statute § 48.23).

 

Reznek v. Chase Home Finance, LLC, — So.3d —-, 2014 WL 6948509 (Fla. 3d 2014).

Neither Florida Stature § 57.105 nor Florida Rule of Appellate Procedure 9.410(b) authorize the filing of a motion for sanctions prior to the opposing party filing any type of paper, claim, contention, allegation or denial in the appeal.

Harris v. Schonbrun, — F.3d —-, 2014 WL 6957937 (11th Cir. 2014).

Requiring a borrower to sign loan documents and post-dated waiver of right to rescind transaction at loan closing violates the Truth In Lending Act, and entitles the borrower to statutory damages, attorney’s fees and costs.


Case Law Update for December 6, 2014

Manuel Farach | in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 49

December 6, 2014

Manuel Farach

 

Beltway Capital, LLC v. The Greens COA, Inc., — So.3d —-, 2014 WL 6834331 (Fla. 5th DCA 2014).

A successor first mortgage (by assignment or transfer from the original first mortgagee) is entitled to the “safe harbor” provisions of Florida Statute § 718.116(1)(b).

 

In re Standard Jury Instructions in Civil, Criminal, Contract & Business Cases-Jurors’ Use  In re Standard Jury Instructions in Civil, Criminal, Contract & Business Cases-Jurors’ Use of Electronic Devices, — So.3d —-, 2014 WL 6802557 (Fla. 2014).

The standard jury instructions regarding juror use and maintenance of cell phones and other electronic devices are revised.

 

Medytox Solutions, Inc. v. Investorshub.com, Inc., — So.3d —-, 2014 WL 6775236 (Fla. 4th DCA 2014).

Interactive website operators are immune from claims of defamation under section 230 of the Communications Decency Act, 47 U.S.C. § 230.

 

Bogdanoff v. Broken Sound Club, Inc., — So.3d —-, 2014 WL 6775259 (Fla. 4th DCA 2014).

An amended complaint alleging the new jurisdictional amounts need not be filed when a suit is transferred from county court to circuit court.

 

Bethany Trace Owners’ Ass’n, Inc. v. Whispering Lakes I, LLC, — So.3d —-, 2014 WL 6778285 (Fla. 2d DCA 2014).

Subdivision covenants must be interpreted so that no section is rendered meaningless.

 

Stein v. Buccaneers Ltd. Partnership, — F.3d —-, 2014 WL 6734819 (11th Cir. 2014).

Offer of full relief to individual class plaintiffs does not moot a putative class action under the Telephone Consumer Protection Act, 47 U.S.C. § 227(b)(1)(C).


Case Law Update for November 29, 2014

Manuel Farach | November 30, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 48

November 29, 2014

Manuel Farach

 

Anakarli Boutique, Inc. v. Ortiz, — So.3d —-, 2014 WL 6674727 (Fla. 4th DCA 2014).

The time period for a covenant not to compete will be extended if the covenant was not enforced during its contracted time period due to an appeal necessitated by the trial court improperly ruling that no enforceable covenant existed.

 

In re Amendments to Florida Rule of Judicial Admin. 2.520, — So.3d —-, 2014 WL 6675417 (Fla. 2014).

Technical revisions to Florida Rule of Judicial Administration 2.520.

 

Medco Data, LLC v. Bailey, — So.3d —-, 2014 WL 6677204 (Fla. 2d DCA 2014).

A court reviewing a covenant not to compete under Florida Statue § 542.335 must apply the statutory presumption of irreparable injury once it finds covenant to be valid.

 

Sea Coast Fire, Inc. v. Triangle Fire, Inc., — So.3d —-, 2014 WL 6679018 (Fla. 3d DCA 2014).

A trial court must conduct an in camera inspection or evidentiary hearing and must find reasonable necessity before requiring the production of trade secrets.

 

Cassedy v. Hofmann, — So.3d —-, 2014 WL 6611749 (Fla. 1st DCA 2014).

Whether a party has waived the right to arbitrate a matter is for the trial court, not the arbitrator, to decide.


Case Law Update for November 22, 2014

Manuel Farach | November 23, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 47

November 22, 2014

Manuel Farach

 

Azco Realty, Inc. v. Village at Culfstream Park, — So.3d —-, 2014 WL 6465540 (Fla. 3d DCA 2014).

Summary judgment for seller is proper in suit for real estate commission when claimant fails to hold a valid real estate agent or broker’s license at time of sale.

 

Clay County Land Trust No. 08-04-25-0078-014-27, Orange Park Trust Services, LLC v.  Clay County Land Trust No. 08-04-25-0078-014-27, Orange Park Trust Services, LLC v. JPMorgan Chase Bank, Nat. Ass’n, — So.3d —-, 2014 WL 6478787 (Fla. 1st DCA 2014).

Only a party to a mortgage may claim defenses that arise from the mortgage. Additionally, a party need not have a formal assignment of note and mortgage so long as it can prove it had possession (and therefore standing) at time of filing suit.

 

Finnegan v. Compton, — So.3d —-, 2014 WL 6460627 (Fla. 4th DCA 2014).

Florida Rule of Civil Procedure 1.525 is satisfied by one of two scenarios: a final judgment granting entitlement to attorney’s fees to one party or the filing of a motion for fees within thirty days of the judgment. A settlement agreement which provides for fees upon enforcement does not create an exception to Rule 1.525’s requirements.

 

 Jelic v. CitiMortgage, Inc., — So.3d —-, 2014 WL 6460763 (Fla. 4th DCA 2014).

Claiming affirmative defenses of “everything but the kitchen sink” is not sufficient, the defenses (including unclean hands) must be factually and legally sufficient.

 

U.S. Bank Nat. Ass’n v. Whyte, — So.3d —-, 2014 WL 6464638 (Fla. 3d DCA 2014).

Dismissal is too extreme a sanction for a discovery violation when the opposing party has suffered no prejudice; dismissal based upon failure to timely respond to discovery and failure to promptly pay a $500 discovery sanction reversed.

 

Racetrac Petroleum, Inc. v. Sewell, — So.3d —-, 2014 WL 6465509 (Fla. 3d DCA 2014).

It is not error for a trial court to allow further Florida Rule of Civil Procedure 1.310(b)(6) depositions if the person designated as the company representative testifies in deposition that others in the company have knowledge regarding the 1.310(b)(6) issues.

 

Zaki Kulaibee Establishment v. McFliker, — F.3d —-, 2014 WL 6434857 (11th Cir. 2014).

Consignment agreement imposes fiduciary obligation to account for sale of sold goods.

 

 


Case Law Update for November 15, 2014

Manuel Farach | in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 46

November 15, 2014

Manuel Farach

 

Hussey v. Collier County, — So.3d —-, 2014 WL 5900018 (Fla. 2d DCA 2014).

The Bert Harris Act, Florida Statute § 70.001, only compensates for “as applied” claims of inordinate government regulation and contains a one year tolling provision so that the claim does not ripen until the exhaustion of administrative remedies. Inverse condemnation claims, on the other hand, do not have the same tolling provision and may be barred by the statute of limitations before the Bert Harris claims ripen.

 

Lefkowitz v. Quality Labor Management, LLC, — So.3d —-, 2014 WL 5877850 (Fla. 5th DCA 2014).

Post-judgment intervention is seldom granted, but will be permitted when the interests of justice require such as when a creditor with a recorded security interest seeks to protect its interest against levy by a later judgment creditor.

 

Martins v. Oaks Master Property Owners Ass’n, Inc., — So.3d —-, 2014 WL 5877856 (Fla. 5th DCA 2014).

An affidavit of diligent search and service by publication are ineffective if the serving party does not attempt service at those addresses reflected in its own records.

 

Boca Stel 2, LLC v. JPMorgan Chase Bank Nat. Ass’n, — So.3d —-, 2014 WL 5877937 (Fla. 5th DCA 2014).

A verified motion to quash service entitles movant to a full evidentiary hearing.

 

Empire Beauty Salon v. Commercial Loan Solutions IV, LLC, — So.3d —-, 2014 WL 5877947 (Fla. 5th DCA 2014).

Service of process on corporation’s officers or employees is not valid if there has not been compliance with Florida Statute § 48.091 regarding attempts to first serve the corporation’s registered agent during the statutorily required times.

 

In re Florida Rule of Appellate Procedure 9.130, — So.3d —-, 2014 WL 5856302 (Fla. 2014).

Florida Rule of Civil Procedure 9.130 (non-final appeals) is amended to authorize non-final appeals of denials to an individual of a sovereign immunity defense.

 

Beach Community Bank v. City of Freeport, — So.3d —-, 2014 WL 5856331 (Fla. 2014).

Ensuring that a real estate developer posts adequate security for infrastructure installation is a policy level decision of a governmental agency, and agency is entitled to sovereign immunity from claims agency was negligent for failure to ensure compliance.

 

 

 

Citrus County Hosp. Bd. v. Citrus Memorial Health Foundation, Inc..

— So.3d —-, 2014 WL 5856370 (Fla. 2014).

The Contracts Clause of the Florida Constitution, Article 1, § 10, applies to and protects the contracts of not-for-profit corporations.

 

Sunsplash Events Inc. v. Robles, — So.3d —-, 2014 WL 5834388 (Fla. 4th DCA 2014).

Arbitration is compelled for an agreement without an arbitration provision if the agreement is substantially related to a different agreement that has a broad arbitration provision.

 

Green Earth Technology Solutions, Inc. v. Geltech Solutions, Inc., — So.3d —-, 2014 WL 5834408 (Fla. 4th DCA 2014).

An arbitration award finding that neither party us the prevailing party cannot be reversed on the ground the arbitrator made an error of law.

 

Sample v. Wells Fargo Bank, N.A., — So.3d —-, 2014 WL 5834512 (Fla. 4th DCA 2014).

An affidavit in support of a motion for summary judgment cannot establish the parties were mutually mistaken as to the legal description attached to a mortgage as one person cannot attest as to another’s knowledge.

 

American Business USA Corp. v. Department of Revenue, — So.3d —-, 2014 WL 5834619 (Fla. 4th DCA 2014).

Florida’s tax on the internet sale of products ordered by out-of-state customers for out-of-state delivery violates the Commerce Clause of the United States Constitution.

 

Taxi USA of Palm Beach, LLC v. City of Boca Raton, Florida, — So.3d —-, 2014 WL 5834856 (Fla. 4th DCA 2014).

A reviewing governmental board is not limited to “strict appeal” (no further introduction of evidence) on first-tier certiorari review from agency action.

 

N302DP, LLC v. Chardan Aero Corp., — So.3d —-, 2014 WL 5836181 (Fla. 3d DCA 2014).

A lease agreement, whether of real or personal property, may create, defeat or amend the right to damages either party may have.

 

 


Case Law Update for November 8, 2014

Manuel Farach | November 9, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 45

November 8, 2014

Manuel Farach

 

Holt v. Calchas, LLC, — So.3d —-, 2014 WL 5614374 (Fla. 2d DCA 2014).

A witness must be sufficiently familiar with the procedures at the company where a business record was prepared that she can meet the foundation requirements of the Business Records Exception to the Hearsay Rule; it is not necessary to call the person who prepared the document to testify to admit the document under the Rule.

 

Scherer Const. & Engineering of Cent. Florida, LLC v. Scott Partnership Architecture, Scherer Const. & Engineering of Cent. Florida, LLC v. Scott Partnership Architecture, Inc., — So.3d —-, 2014 WL 5782033 (Fla. 5th DCA 2014).

A voluntary dismissal without prejudice does not entitle a party to an award of attorney’s fees as the “prevailing party” under Florida Statute § 768.79.

 

In re Amendments to Florida Rules of Appellate Procedure, — So.3d —-, 2014 WL 5714099 (Fla. 2014).

Mostly technical changes to the appellate rules, including clarification that post-judgment motions are not abandoned upon the filing of a notice of appeal.

 

Pennington v. Ocwen Loan Servicing, LLC, — So.3d —-, 2014 WL 5740990 (Fla. 1st DCA 2014).

The assignment of a mortgage does not necessarily assign or transfer the note.

 

Cook v. Fernandina Seafood Co., — So.3d —-, 2014 WL 5769097 (Fla. 1st DCA 2014).

A court should dismiss a premature appeal (as opposed to relinquishing jurisdiction to obtain a final order or judgment) when an indeterminate amount of trial work remains.

 

Harllee v. Procacci, — So.3d —-, 2014 WL 5653103 (Fla. 2d DCA 2014).

A claim is not barred by res judicata just because it could have been raised in a prior case; the four identities must also be present.

 

Bull Motors, LLC v. Brown, — So.3d —-, 2014 WL 5654266 (Fla. 3d DCA 2014).

A mandatory injunction specifying the conduct a party must take in order to avoid future violations of the Florida Deceptive and Unfair Practices Act is overbroad.

 

Katline Realty Corp. v. Avedon, — So.3d —-, 2014 WL 5654292 (Fla. 3d DCA 2014).

A party cannot contract away violations of the Home Ownership Equity Protection Act’s protections of high interest loans.

 

 


Case Law Update for November 1, 2014

Manuel Farach | in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 44

November 1, 2014

Manuel Farach

 

Lovette v. National Collegiate Student Loan Trust 2004-1, — So.3d —-, 2014 WL 5478134 (Fla. 5th DCA 2014).

Standing may be raised without a formal affirmative defense, and failure to prove ownership (or enforcement rights) at time of filing suit precludes judgment for lender.

 

In re Amendments to Florida Rules of Judicial Admin., — So.3d —-, 2014 WL 5470638 (Fla. 2014).

The time period for preservation of criminal records is extended and the pro hac vice rules for out of state attorneys are relaxed.

 

Lehmann v. Cocoanut Bayou Ass’n, — So.3d —-, 2014 WL 5461970 (Fla. 2d DCA 2014).

A valid deed recorded after a “wild deed” is not, pursuant to the exception at Florida Statute §712.03(4), extinguished by the Record Marketable Title Act.

 

Citibank, N.A. v. Konigsberg, — So.3d —-, 2014 WL 5461972 (Fla. 2d DCA 2014).

A notice filed by lead counsel during the sixty-day grace period merely stating that all counsel were “to forward further pleadings, motions, correspondence and other papers to the lead counsel” is sufficient “record activity” to avoid dismissal under Florida Rule of Civil Procedure 1.420 (e).

 

Smith v. Bruster, — So.3d —-, 2014 WL 5462468 (Fla. 1st DCA 2014).

An action for return of real property procured by fraud is governed by the four year statute of limitations of Fla. Stat. § 95.11(3)(j), but the statute of limitations does not begin to run until the victim knew or should have known of the fraud.

 

Anderson v. North Port Services of Florida, LLC, — So.3d —-, 2014 WL 5462514 (Fla. 1st DCA 2014).

A party bringing an appeal has a duty to “make error clearly appear” and the reviewing court has no obligation to answer appellant’s perfunctorily raised questions.

 

Goslin v. Preisser, — So.3d —-, 2014 WL 5462517 (Fla. 1st DCA 2014).

An order denying discovery is typically not reviewable by certiorari because the order denying discovery, unlike an improper order compelling discovery which creates the proverbial “cat out of the bag scenario,” can be reviewed on plenary appeal.

 

REWJB Dairy Plant Associates v. Bombardier Capital, Inc., — So.3d —-, 2014 WL 5462520 (Fla. 3d DCA 2014).

A new trial on both liability and damages is required if the plaintiff seeks additur under Florida Statute § 768.74(4) and the jury verdict makes it impossible for the reviewing court to determine on which claims and defenses the jury made its determination.

 

Sweetapple, Broeker & Varkas, P.L. v. Simmon, — So.3d —-, 2014 WL 5462531 (Fla. 3d DCA 2014).

Funds and financial information are not privileged in the hands of a client, and do not become privileged by depositing the funds into an attorney’s trust account.

 

U.S. Nutraceuticals, LLC v. Cyanotech Corp., — F.3d —-, 2014 WL 5471913 (11th Cir. 2014).

Arbitrability is issue for judicial determination unless parties clearly and unmistakably provide otherwise. Under the rules of the American Arbitration Association, parties agree the arbitrator decides whether the arbitration clause applies to the claims.

 

Palm Beach Golf Center-Boca, Inc. v. Sarris, — F.3d —-, 2014 WL 5471916 (11th Cir. 2014).

Sending of a “junk fax” is a violation of the Telephone Consumer Protection Act, 47 U.S.C.A. § 227(b)(1)(C).


Case Law Update for October 24, 2014

Manuel Farach | October 27, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 43

October 25, 2014

Manuel Farach

 

Felice v. Sutherland Pullen Law, PLLC, — So.3d —-, 2014 WL 5394508 (Fla. 2d DCA 2014).

An attorney’s engagement agreement may not authorize a charging lien be granted on homestead property for failure to pay contracted for fees.

 

2245 Venetian Court Bldg. 4, Inc. v. Harrison, — So.3d —-, 2014 WL 5394515 (Fla. 2d DCA 2014).

Relevance of financial discovery in post judgment proceedings is broader than its relevance prior to judgment, and relevant discovery includes that on third parties with connections to the judgment debtor. It is not necessary to have alleged a fraudulent conveyance to have financial discovery on third parties.

 

Harper v. HSBC Bank USA, Nat. Ass’n, — So.3d —-, 2014 WL 5370029 (Fla. 1st DCA 2014).

A mortgage foreclosure affirmative defense that the promissory note (not the mortgage) has not been properly accelerated is effective when the note incorporates the mortgage.

 

Southern Nat. Track Services, Inc. v. Gilley, — So.3d —-, 2014 WL 5370033 (Fla. 1st DCA 2014).

An express warranty in a real estate contract for sale of a modular home which claims there are no violations of “land use plans, zoning, restrictions, prohibitions and other requirements imposed by governmental authority….” does not merge into the deed when the “modular house” is actually a storage shed improperly converted into a residence in violation of building codes and governmental regulations.

 

HSBC Bank USA, N.A. v. Serban, — So.3d —-, 2014 WL 5370041 (Fla. 1st DCA 2014).

Trial court’s failure to follow Florida Rule of Civil Procedure 1.440, including setting a case for trial with less than thirty days’ notice, is waived if not objected to at trial.

 

Spicer v. Tenet Florida Physician Services, LLC, — So.3d —-, 2014 WL 5343503 (Fla. 4th DCA 2014).

A purported agreement to arbitrate which does not contain any reference to the procedure to be used in arbitration and does not make reference to “gap fillers” such as the Florida Arbitration Code is not a sufficient agreement and is not enforceable.

 

Zelaya/Capital Intern. Judgment, LLC v. Zelaya, — F.3d —-, 2014 WL 5375611 (11th Cir. 2014).

A judgment debtor may interplead the judgment amount claimed by multiple parties into the court registry, and thereby satisfy the judgment against him. There is no absolute right to a jury trial in garnishment proceedings when a jury tria


Case Law Update for October 18, 2014

Manuel Farach | in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 42

October 18, 2014

Manuel Farach

 

Delia v. GMAC Mortg. Corp., — So.3d —-, 2014 WL 5284995 (Fla. 5th DCA 2014).

Lender seeking to reestablish a lost promissory note must produce evidence of adequate protection to the borrower under Florida Statute §§ 673.3091 and 702.11.

 

JILCO, Inc. v. MRG of South Florida, Inc., — So.3d —-, 2014 WL 5149077 (Fla. 4th DCA 2014).

A settlement agreement bars further discovery on the issues covered by the agreement.

 

Beauchamp v. Bank of New York, — So.3d —-, 2014 WL 5149104 (Fla. 4th DCA 2014).

Allowing hearsay evidence of amounts owed on promissory note over objection of a mortgagor not liable on the note is not harmless error because the amount owed on the note affects the amount the mortgagor must pay in order to exercise his equity of redemption at foreclosure sale.

 

Laura M. Watson, P.A. v. Stewart Tilghman Fox & Bianchi, P.A., — So.3d —-, 2014 WL 5149106 (Fla. 4th DCA 2014).

A judgment debtor has no legal power to control a garnishee’s responses and cannot prohibit a garnishee from waiving formal service of process through filing an answer.

 

Wyandt v. Voccio, — So.3d —-, 2014 WL 5151322 (Fla. 2d DCA 2014).

An injunction issued under Florida Statute § 784.0485 requires substantial, competent evidence of two incidents of “stalking,” even if the dispute is between business owners.

 

Lacombe v. Deutsche Bank Nat. Trust Co., — So.3d —-, 2014 WL 5139296 (Fla. 1st DCA 2014).

Florida Rule of Civil Procedure 1.530(e) (contemporaneous objection not necessary in bench trials to preserve appellate review whether there was substantial, competent evidence to support decision) applies in mortgage foreclosure cases tried to the court.

 

Burdeshaw v. Bank of New York Mellon, — So.3d —-, 2014 WL 5099352 (Fla. 1st DCA 2014).

While loan payment histories are often admitted into evidence in mortgage foreclosure proceedings, the histories must first be properly authenticated which requires the witness testifying to the records demonstrate knowledge of the business’s record-keeping system and how data is inputted into the system.

 

Kiefert v. Nationstar Mortg., LLC, — So.3d —-, 2014 WL 5099374 (Fla. 1st DCA 2014).

Plaintiff in mortgage foreclosure action must prove it had standing at time of filing suit.

 

Antico v. Sindt Trucking, Inc., — So.3d —-, 2014 WL 5099433 (Fla. 1st DCA 2014).

Data contained on a personal smartphone that is relevant to pending issues may be the subject of discovery notwithstanding the privacy rights contained in Article I, Section 23, of the Florida Constitution.