Real Estate & Business Litigation Record

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.



Case Law Update for October 11, 2014

Manuel Farach | October 11, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 41

October 11, 2014

Manuel Farach


Bawtinhimer v. D.R. Horton, Inc., — So.3d —-, 2014 WL 5039701 (Fla. 5th DCA 2014).

While claim-by-claim analysis of order denying class certification is required, individualized findings are not required.


Wells Fargo Bank, N.A. v. Rutledge, — So.3d —-, 2014 WL 5072721 (Fla. 2d DCA 2014).

An inferior lienor cannot sue a superior lienor in foreclosure, and doing so results in judgment which is not res judicata to superior lienor in its separate foreclosure action.


Branch Banking and Trust Co. v. ARK Development/Oceanview, LLC, — So.3d —-, 2014 WL 4988471 (Fla. 4th DCA 2014).

A bank account sought to be garnished is presumed to be owned by the person named as owner of the account.


Keitel v. Agostino, — So.3d —-, 2014 WL 4996285 (Fla. 4th DCA 2014).

A motion to recuse a judge must be based on reasonable facts underlying the party’s fear that she will not receive a fair trial. Further, a party cannot bootstrap a motion to recuse a judge by setting the judge for deposition in the action.


Andre Franklin, Inc. v. Wax, — So.3d —-, 2014 WL 5002130 (Fla. 2d DCA 2014).

A defendant does not waive the right to arbitration by filing a motion to dismiss, a counterclaim and motion to compel arbitration; it is the participation in discovery that waives a party’s right to arbitration.


Luani Plaza, Inc. v. Burton, — So.3d —-, 2014 WL 5012990 (Fla. 3d DCA 2014).

A community association may amend its restrictive covenants so long as doing so is reasonable and not arbitrary and capricious. Amending restrictive covenants of a business community association to prohibit residential uses is reasonable and not arbitrary and capricious.



Case Law Update for October 4, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 40

October 4, 2014

Manuel Farach


Freiday v. OnWeest Bank, FSB, — So.3d —-, 2014 WL 4840750 (Fla. 4th DCA 2014).

A summary judgment of foreclosure is improper when the letter declaring default (and satisfying a condition precedent to foreclosure) is unauthenticated.


Dubow v. Acree, — So.3d —-, 2014 WL 4851738 (Fla. 2d DCA 2014).

Dismissals under Florida Rule of Civil Procedure 1.420(e) are without prejudice.


Puigbo v. Medex Trading, LLC, — So.3d —-, 2014 WL 4852880 (Fla. 3d DCA 2014).

Florida law on extra-territorial service of process is pre-empted by the Hague Service Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965 [1969], 20 U.S.T. 361 (the Hague Service Convention), and service in compliance with the Hague Convention is good service.


Mana v. Cho, — So.3d —-, 2014 WL 4852897 (Fla. 3d DCA 2014).

A plaintiff’s personal financial information is not relevant for discovery purposes if the plaintiff is seeking damages only for the difference between the contract price and fair market value of land, and the plaintiff is not seeking compensatory damages for breach.


Terant v. Beltway Capital, LLC, — So.3d —-, 2014 WL 4852903 (Fla. 3d DCA 2014).

A trial court’s incorrect interpretation of a statute or contract does not rise to the level of fundamental error.


Inetianbor v. CashCall, Inc., — F.3d —-, 2014 WL 4922225 (11th Cir. 2014).

The failure of a chosen arbitration forum when the choice of forum is integral to the arbitration agreement precludes arbitration under the Federal Arbitration Act.


Bates v. JPMorgan Chase Bank, NA, — F.3d —-, 2014 WL 4815564 (11th Cir. 2014).

Failure to comply with Department of Housing and Urban Development regulations referenced in deed as conditions precedent to acceleration can constitute basis for breach of contract action against mortgagee’s successor in interest.


Mamma Mia’s Trattoria, Inc. v. Original Brooklyn Water Bagel Co., Inc., — F.3d —-, 2014 WL 4824790 (11th Cir. 2014).

A post-judgment enforcement order of injunction is not “final” for appellate review purposes unless it imposes sanctions or finds a party in contempt.



Case Law Update for September 27, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 39

September 27, 2014

Manuel Farach


MCG Financial Services, L.L.C. v. Technogroup, Inc., — So.3d —-, 2014 WL 4723508.

Party may not avoid an award of attorneys’ fees by taking a litigation position at attorneys’ fees award stage different from which it took during liability phase of case.


Real Estate Mortg. Network, Inc. v. Knight, — So.3d —-, 2014 WL 4723512 (Fla. 4th DCA 2014).

A contested issue of fact arises (and summary judgment must be reversed) when lender files affidavit stating it complied with required loss mitigation requirements and borrower files affidavit stating it never received any loss mitigation paperwork.


2010-3 SFR Venture, LLC v. Garcia,— So.3d —-, 2014 WL 4723515 (Fla. 4th DCA 2014).

A second mortgage foreclosure action is not barred by res judicata when based on different act of default.


Bellizzi v. Islamorada, Village of Islands, — So.3d —-, 2014 WL 4723569 (Fla. 3d DCA 2014).

The “common law rule” regarding roadways (platted streets containing a reversionary interest, upon the streets being abandoned or surrendered, pass the underlying land to the abutting owners up to the centerline of the roadway) does not apply when the roadways are transferred to public entities.


Shteyn v. Grandview Palace Condo Assn., — So.3d —-, 2014 WL 4723584 (Fla. 3d DCA 2014).

A cause of action under Florida Statute § 718.303(1)(b) and (e) seeking an injunction against a condominium unit owner impermissibly renting his unit to a tenant is not mooted by the tenant’s vacating the premises as the cause of action was valid at the time it was brought and the suit also seeks to prohibit the owner from future violations.


Frischer v. Quintana, — So.3d —-, 2014 WL 4723585 (Fla. 3d DCA 2014).

It is not abuse of discretion for trial court to refuse to impose Florida Statute § 57.105 sanctions for suit filed fifteen years after the statute of limitations runs.


Planned Parenthood of Greater Orlando v. MMB Properties, — So.3d —-, 2014 WL 4773990 (Fla. 5th DCA 2014).

Planned Parenthood’s providing of obstetrical and gynecological services is “incident to a physician’s practicem” and thus does not violate a real property restrictive covenant barring “surgical services” that are not “incident to a physician’s practice.”


VMI Entertainment, LLC v. Westwood Plaza, LLC, — So.3d —-, 2014 WL 4695288 (Fla 1st DCA 2014).

An alcohol beverage license is not subject to attachment under Florida Statute § 76.01; the license must be liened pursuant to Florida Statute § 561.65.


Oliva v. NBTY, Inc., — Fed.Appx. —-, 2014 WL 4667342 (11th Cir. 2014).

Fees and costs may be imposed against counsel under 28 U.S.C. § 1927 for unnecessarily increasing the cost and expense of litigation.

Case Law Update for September 20, 2014

Manuel Farach | September 22, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 38

September 20, 2014

Manuel Farach


Unrue v. Wells Fargo Bank, N.A., — So.3d —-, 2014 WL 4648205 (Fla. 5th DCA 2014).

A court must allow at least one attempt at amendment of a quiet title counterclaim to a mortgage foreclosure; Badgley v. SunTrust Mortg., Inc., 134 So.3d 559, 561 (Fla. 5th DCA 2014), is distinguished because the Badgley dismissal was of amended complaint.


Florida Virtual School v. K12, Inc., — So.3d —-, 2014 WL 4638694 (Fla. 2014).

Agencies of the state of Florida have statutory authority and the power to file and protect their intellectual property rights, by suit if necessary.


Handel v. Nevel, — So.3d —-, 2014 WL 4627765 (Fla. 3d DCA 2014).

Failure to check emailed proposed orders which purportedly misstate a trial court ruling does not constitute excusable neglect under Rule of Procedure 1.540.


CDC Builders, Inc. v. Biltmore-Sevilla Debt Investors, LLC, — So.3d —-, 2014 WL 4628515 (Fla. 3d DCA 2014).

Investors in one company may not grant mortgages on real property, contract for the improvement of the real property without paying for the improvements, and then use a network of different companies to purchase the first mortgage and foreclose out the construction liens filed as a result of not paying for the improvements.


Ledo v. Seavie Resources, LLC, — So.3d —-, 2014 WL 4628549 (Fla. 3d DCA 2014).

Striking of pro se pleadings is examined under the Ham v. Dunmire, 891 So.2d 492/Mercer v. Raine, 443 So.2d 944 (Fla.1983), analysis instead of the Kozel factors. Consistently failing to respond to discovery despite repeated court orders to do so satisfies the Ham/Mercer requirement for striking pro se pleadings.


O’Neil v. Walton County, — So.3d —-, 2014 WL 4628505 (Fla. 1st DCA 2014).

A party may not file a Florida Statute § 163.3215 development order challenge claiming the projected development is not in compliance with applicable land use regulations when it did not challenge the earlier preliminary development order permitting the use.


Pennington v. Ocwen Loan Servicing, LLC, — So.3d —-, 2014 WL 4629173 (Fla. 1st DCA 2014).

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


Sto Corp. v. Greenhut Const. Co., Inc., — So.3d —-, 2014 WL 4629200 (Fla. 1st DCA 2014).

Certiorari review is generally not available for orders striking pleadings for discovery violations unless the order results in a “cat out of the bag” scenario or effectively punishes a party in a manner that is not remediable by plenary appeal.

Case Law Update for September 13, 2014

Manuel Farach | September 13, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 37

September 13, 2014

Manuel Farach


Love’s Window & Door Installation, Inc. v. Acousti Engineering Company, — So.3d —-, 2014 WL 4471631 (Fla. 5th DCA 2014).

Courts have discretion to not enforce mandatory forum selection clauses for reasons such as multiple lawsuits, minimizing judicial labor, reducing the expenses to the parties, and avoiding inconsistent results.


Agresta v. City of Maitland, — So.3d —-, 2014 WL 4471990 (Fla. 5th DCA 2014).

Forfeiture of a home under the Florida Contraband Act is not permissible when the home value is ten times more than the imposed fine.


Coastal Capital Venture, LLC v. Integrity Staffing Solutions, Inc., — So.3d —-, 2014 WL 4476533 (Fla. 2d DCA 2014).

Substituted service may not be used when the plaintiff is in communication with defendant and knows defendant is out of state, but makes no effort to serve out of state.


Wells Capital Investments, LLC v. Exit 1 Stop Realty, — So.3d —-, 2014 WL 4476478 (Fla. 1st DCA 2014).

A brokerage commission agreement without a time frame is not a “brokerage in perpetuity,” and a broker is not entitled to a commission as the procuring cause of a sale when the broker abandons the commission agreement (e.g., stops marketing and attempting to sell the property and stops communicating with the seller) three years before the eventual sale.


Smith v. Bruster, — So.3d —-, 2014 WL 4457312 (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.


Arce v. Wackenhut Corp., — So.3d —-, 2014 WL 4435949 (Fla. 3d DCA 2014).

Whether a proposal for settlement was made in good faith is a basis for determining whether to award fees, but not to reduce the amount of fees awarded.


BAC Home Loans Servicing L.P. v. Parrish, — So.3d —-, 2014 WL 4435970 (Fla. 1st DCA 2014).

A case cannot be set for trial on less than thirty days’ notice.


Brown v. Brown, — So.3d —-, 2014 WL 4435974 (Fla. 1st DCA 2014).

The distribution of a “pay on death” (POD) bank account under Florida Statute § 655.79 differs from a joint account under Florida Statute § 655.79 in that beneficiaries who are not account holders may be designated under a POD account.


Chapman v. Procter & Gamble Distributing, LLC, — F.3d —-, 2014 WL 4454979 (11th Cir. 2014).

Daubert analysis is not required for medical conditions and causation generally accepted by the medical community, but is otherwise required to determine whether “the expert is qualified to testify regarding the subject of the testimony; the expert’s methodology is ‘sufficiently reliable as determined by the sort of inquiry mandated in Daubert’; and the expert’s testimony will assist the trier of fact in understanding the evidence or determining a fact at issue.”

Case Law Update for September 6, 2014

Manuel Farach | September 6, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 36

September 6, 2014

Manuel Farach


Schwades v. America’s Wholesale Lender, — So.3d —-, 2014 WL 4374891 (Fla. 5th DCA 2014).

Argument that borrower’s quiet title action eliminated a recorded mortgage entitles the lender to Florida Statute § 57.105(1) fees sua sponte to be awarded on appeal.


HSBC Bank USA, Nat. Ass’n v. Centre Court Ridge Condominium Ass’n, Inc., — So.3d —-, 2014 WL 4374954 (Fla. 5th DCA 2014).

Substituted service on a non-resident by service on the Secretary of State under Florida Statute § 48.161 requires the plaintiff to mail copy of the service to defendant, otherwise the service is invalid.


Boozer v. Stalley, — So.3d —-, 2014 WL 4375873 (Fla. 5th DCA 2014).

Although attorney work product is discoverable in first party bad faith actions, attorney-client communications are not. Question certified to the Florida Supreme Court.


James v. Leigh, — So.3d —-, 2014 WL 4376232 (Fla. 1st DCA 2014).

The Litigation Privilege prevents in court or court related statements from constituting a breach of a non-disparagement agreement.


Okeechobee Resorts, L.L.C. v. E Z Cash Pawn, Inc., — So.3d —-, 2014 WL 4327924 (Fla. 4th DCA 2014).

The phrases “[n]o oral representation shall in any way change or modify these written conditions and such oral representation shall in no way be binding upon the issuer of this pawn ticket” and “verbal agreements for additional days are non-binding” modify the phrase “may be extended upon mutual agreement of the parties” and require that purported modifications of the contract be in writing unless the parties acted upon the oral modification and not recognizing the oral modification works a fraud upon a party.


Stratton v. Port St. Lucie MGT, LLC, — So.3d —-, 2014 WL 4327933 (Fla. 4th DCA 2014).

The bi-lateral attorneys’ fees provisions of Florida Statute § 57.105(7) apply to the prevailing party in an arbitrations.


Brklacic v. Parrish, — So.3d —-, 2014 WL 4328068 (Fla. 4th DCA 2014).

Married couples may obtain the benefit of Florida Administrative Code R. 12D–7.007(7) and claim homestead exemption on two different residences only if they prove they are “separate family units,” i.e., estranged or separated but still married.


Bartow HMA, LLC v. Kirkland, — So.3d —-, 2014 WL 4336590 (Fla. 2d DCA 2014).

A trial court cannot award appellate attorneys’ fees without a prior order of entitlement to appellate fees from the appellate court.

May v. PHH Mortg. Corp., — So.3d —-, 2014 WL 4342020 (Fla. 2d DCA 2014).

A lender (who is not the original obligee on the note) must prove it owned the note at time of filing suit otherwise it does not establish a prima facie case.


Ramos v. Citimortgage, Inc., — So.3d —-, 2014 WL 4343760 (Fla. 3d DCA 2014).

Strict compliance with the notice provision of a mortgage is required (including with regard to addresses) otherwise the notice is invalid.


Design Home Remodeling Corp. v. Santana, — So.3d —-, 2014 WL 4343855 (Fla. 3d DCA 2014).

A proposal for settlement served sixty days after a party is joined in invalid.


Dowbenko v. Google Inc., — Fed.Appx. —-, 2014 WL 4378742 (11th Cir. 2014).

Claims against internet search provider for “false light invasion of privacy” arising out the placement of search results are not cognizable under either Florida law or the Community Decency Act, 47 U.S.C. § 230.


In re Ernie Haire Ford, Inc., — F.3d —-, 2014 WL 4358417 (11th Cir. 2014).

A party who is being sued due under an amended plan of reorganization cannot, under the “person aggrieved standard,” appeal the amendment of the plan that allows the suit.


SFM Holdings, Ltd. v. Banc of America Securities, LLC, — F.3d —-, 2014 WL 4362966 (11th Cir. 2014).

The Anti-Injunction Act, 28 U.S.C. § 2283, limits the All Writs Act, and correspondingly, limits the ability of federal courts to rehear suits litigated in state courts.



Case Law Update for August 30, 2014

Manuel Farach | August 31, 2014 in Real Estate & Business Litigation Record | Comments (0)

Real Property and Business Litigation Report

Volume VII, Issue 35

August 30, 2014

Manuel Farach


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.

Case Law Update for August 23, 2014

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

Real Property and Business Litigation Report

Volume VII, Issue 34

August 23, 2014

Manuel Farach


Garcia v. BAC Home Loans, — So.3d —-, 2014 WL 4105985 (Fla. 5th DCA 2014).

A party may not avoid dismissal for failure to prosecute under Florida Rule of Civil Procedure 1.420 (e) by amending its complaint during the show cause period.


McLagan v. Federal Home Loan Mortg. Corp., — So.3d —-, 2014 WL 4113099 (Fla. 2d DCA 2014).

The defense of standing may be raised by motion without first raising it as an affirmative defense.


Desert Palace, Inc. v. Wiley, — So.3d —-, 2014 WL 4114482 (Fla. 1st DCA 2014).

An action on a foreign judgment domesticated pursuant to the Florida Enforcement of Foreign Judgments Act, Fla. Stat. § 55.501, is subject to the twenty year statute of limitations of Fla. Stat. § 95.11(1) and not the five year statute of limitations set forth in  Fla. Stat. § 95.11(2)(a).


Vazza v. Estate of Vazza, — So.3d —-, 2014 WL 4082864 (Fla. 4th DCA 2014).

A probate court must hold an evidentiary hearing when deciding whether the personal representatives of estate acted within their powers when they paid themselves estate funds without prior court order authorizing them to do so.


Phoenix Motor Co. v. Desert Diamond Players Club, Inc., — So.3d —-, 2014 WL 4082901 (Fla. 4th DCA 2014).

For two documents to be read as one under the Doctrine of Incorporation by Reference (and thereby invoke an arbitration provision), the incorporating (first) document must expressly refer to or sufficiently describe the second document sought to be incorporated into the first document.


Fowler v. Ritz-Carlton Hotel Co., LLC, — Fed.Appx. —-, 2014 WL 4066211 (11th Cir. 2014).

The mere appearance of partiality or bias is not enough to set aside an arbitration award under the Federal Arbitration Act; “evident partiality” occurs only when an actual conflict (known by the arbitrator) exists or the arbitrator knows of but fails to disclose information which would lead a reasonable person to conclude a conflict exists.


Moon v. Medical Technology Associates, Inc., — Fed.Appx. —-, 2014 WL 4056724 (11th Cir. 2014).

An evidentiary hearing is not necessarily required before entering a temporary injunction, but should be conducted when resolution turns on bitterly disputed facts.