Real Property and Business Litigation Report
Volume VII, Issue 35
August 30, 2014
Nationstar Mortgage, LLC V. Zorie, — So.3d —-, 2014 WL 4249747 (Fla 5th DCA 2014).
A foreclosure complaint missing a prepayment rider as an attachment is not subject to judgment on the pleadings, even if the attachment is referred to in the complaint.
Grant v. Rotolante, , — So.3d —-, 2014 WL 4249753 (Fla. 5th DCA 2014).
Even if a FINRA registered financial professional gives his neighbor investment advice, the financial professional is not required to arbitrate the neighbor’s claims against him if the neighbor did not open accounts with him or otherwise was not a “customer” under FINRA rules. The Federal Arbitration Act, not the Florida Arbitration Code, governs FINRA disputes.
Brown v. Mittelman, — So.3d —-, 2014 WL 4209207 (Fla. 4th DCA 2014).
Notwithstanding the protections of Florida Rule of Civil Procedure 1.280(b), parties are entitled to discover relationships between the expert and the expert’s referral sources.
Friscia v. Friscia, — So.3d —-, 2014 WL 4212689 (Fla. 2d DCA 2014).
Former marital home of divorced couple was still homestead and owned as tenants in common, notwithstanding that former husband no longer lived there and had remarried and that former wife occupied the home under the Marital Settlement Agreement only until youngest child of the marriage graduated high school. The provisions of the Marital Settlement Agreement requiring sale of the homestead upon graduation of youngest child did not operate as a waiver, but the fact that former husband died intestate with minor children means that present wife is given a life estate in the property.
Romay v. Caribevision Holdings, Inc., — So.3d —-, 2014 WL 4212739 (Fla. 3d DCA 2014).
Florida courts have authority under Florida Statute § 607.1432(6) to appoint Florida receivers for out of state corporations, notwithstanding Florida Statute § 607.1505(3) restrictions on regulating “the organization or internal affairs of a foreign corporation.”
Dever v. Wells Fargo Bank Nat. Ass’n, — So.3d —-, 2014 WL 4212760 (Fla. 2d DCA 2014).
A subordinate party who does not file a claim for surplus foreclosure proceedings in the manner required by Florida Statute § 45.031(7)(b) is not entitled to the surplus proceeds notwithstanding it filed an answer requesting surplus proceeds be distributed to it.
Synergy Real Estate of SW Florida, Inc. v. Premier Property Management of SW Florida, LLC, — Fed.Appx. —-, 2014 WL 4233266 (11th Cir. 2014).
A dissolved Florida corporation may bring suit or defend in federal court.
In re Tobkin, — Fed.Appx. —-, 2014 WL 4233368 (11th Circ. 2014).
A Florida Bar disciplinary costs and fees judgment is a “fine” by a “governmental entity” and non-dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(7), and is.
Barniv v. BankTrust, — Fed.Appx. —-, 2014 WL 4211067 (11th Cir. 2014).
The elements of wrongful garnishment are the same as for malicious prosecution, i.e., “(1) the defendant commenced or continued a proceeding against the plaintiffs, (2) the defendant was the legal cause of that proceeding, (3) the plaintiffs received a ‘bona fide termination’ of the proceeding in their favor, (4) the defendant did not have “probable cause” for the proceeding, (5) the defendant acted with ‘legal malice,’ and (6) the plaintiffs suffered damages.”
Wiand v. Dancing $, LLC, — Fed.Appx. —-, 2014 WL 4215102 (11th Cir. 2014).
A “clawback” under the Uniform Fraudulent Transfers Act, Florida Statute § 726.101 et seq., is permissible even if the funds did not come directly from the defrauder.
Bhogaita v. Altamonte Heights Condominium Ass’n, Inc., — F.3d —-, 2014 WL 4215853 (11th Cir. 2014).
The same legal analysis applies to the Florida Fair Housing Act as does to the Fair Housing Act, and liability requires proof of a failure to accommodate claims, that a party is disabled, that the disabled party requested an accommodation, that the requested accommodation was necessary to enjoy and use the dwelling, and that the defendant refused the request.