REAL ESTATE CORNER
Florida Real Property and Business Litigation Report
MANUEL FARACH
City of Chicago v . Fulton , Case No . 19 – 357 ( 2021 ). The mere retention of estate property after the filing of a bankruptcy petition does not violate the automatic stay under 11 U . S . C . § 362 ( a )( 3 ) of the Bankruptcy Code .
Ham v . Portfolio Recovery Associates , LLC , Case No . SC18-2143 ( Fla . 2020 ). An action for account stated is an action on a contract and the prevailing party in the action can claim attorney ’ s fees under the prevailing party provisions of Florida Statute section 57.105 ( 7 ).
Page v . Deutsche Bank Trust Company
Americas , Case No . SC19-1137 ( Fla . 2020 ). A borrower who prevails in a foreclosure action in which the plaintiff bank establishes standing to enforce a note and mortgage at the time of trial ( but not at the time of filing suit ) is entitled to an award of attorney ’ s fees under the prevailing party provisions of Florida Statute section 57.105 ( 7 ).
In Re : Amendments To Florida Rule of Civil Procedure 1.510 , Case No . SC20-1490 ( Fla . 2020 ). Florida adopts the federal Celotex Corp . v . Catrett , 477 U . S . 317 ( 1986 ), standard for motions for summary judgment effective May 2 , 2021 .
In Re : Amendments To The Florida Rules of Judicial Administration — 2020 Regular- Cycle Report , Case No . SC20-165 ( Fla . 2021 ). Substantial changes to the Florida Rules of Judicial Administration , including renaming the body of rules to “ Florida Rules of General Practice and Judicial Administration ” to reflect the rules apply to attorneys as well as judges , as well as details on disqualification of judges , and rules on appearance and termination of attorneys in litigated matters .
In Re : Amendments To Florida Rule of Judicial Administration 2.420 , Case No . SC20-1765 ( Fla . 2021 ). Clerks of court are no longer required to identify and designate confidential information in certain cases .
Citizens Property Insurance Corporation v . Manor House , LLC , Case No . SC19-1394 ( Fla . 2021 ). Consequential damages such as lost rent are typically not covered by insurance policies and are reached through a bad faith action under Florida Statute section 624.155 .
The Pantry , Inc . v . Mijax Manager , LLC , Case No . 5D20-612 ( Fla . 5th DCA 2020 ). A recorded document provides constructive notice to support a restrictive covenant notwithstanding the instrument calls for an acknowledgement but instead provides an oath and affirmation .
Black Knight Servicing Technologies , LLC PennyMac Loan Services , LLC , Case No . 1D20-1492 ( Fla . 1st DCA 2021 ). The filing of a separate lawsuit raising separate claims against a separate entity does not establish an evidentiary basis of a party ’ s intent to relinquish the right to arbitration .
Gleman v . MWH Americas , Inc ., Case Nos . 4D19-2280 and 4D19-2923 ( Fla . 4th DCA 2021 ). A Motion to Dismiss for Fraud on the Court due to inconsistent statements in an earlier suit bears a higher burden than a Motion to Strike Sham Pleading , and the fraud must be demonstrated through a “‘ clear showing of fraud , pretense , collusion , or similar wrongdoing .”
Nunes v . Herschman , Case No . 4D19-2798 ( Fla . 4th DCA 2021 ). A deposition is not a “ judicial proceeding ” under Florida Statute section 92.57 , (“[ a ] person who testifies in a judicial proceeding in response to a subpoena may not be dismissed from employment because of the nature of the person ’ s testimony . . . .”) and thus an employee may be dismissed for testimony arising out of the deposition .
Oakmont Custom Homes , LLC v . Billings , Case No . 4D20-1263 ( Fla . 4th DCA 2021 ). The transfer of home warranties as part of a sales transaction by a seller to a purchaser does not equal agreement by the purchaser to the arbitration provision contained in the home warranty .
Jacocks v . Capital Commercial Real Estate
Group , Case No . 4D20-1512 ( Fla . 4th DCA 2021 ). A third-party beneficiary who does not sign a contract which contains an arbitration agreement may be bound to the arbitration agreement but only if he is suing to enforce the contract which contains the arbitration agreement .
Ramos v . Mississippi Real Estate Dispositions , LLC , Case No . 3D19-2513 ( Fla . 3d DCA 2021 ). Despite the equitable powers granted to judgment creditors by Florida Statute section 56.29 ( 6 ), a judgment creditor executing a judgment on a judgment debtor ’ s interest in a multi-member limited liability is constrained by Florida Statute section 605.0503 and may only levy a charging lien .
National Medical Imaging , LLC v . Lyon Financial Services , Inc ., Case No . 3D20-730
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( Fla . 3d DCA 2021 ) ( en banc ). The Third District recedes from Shop in the Grove , Ltd . v . Union Federal Savings & Loan Ass ’ n of Miami , 425 So . 2d 1138 ( Fla . 3d DCA 1982 ), and holds that the automatic stay under 11 U . S . C . 362 applies even when the bankruptcy debtor is the appellant .
The Board of Trustees of the Internal Improvement Trust Fund of the State of Florida v . Waterfront ICW Properties , LLC , Case No . 4D19-3240 ( Fla . 4th DCA 2021 ). Man-made canals that were not in existence on March 3 , 1845 are not “ navigable waters ” and thus not sovereign lands of the state of Florida .
Pash v . Mahogany Way Homeowners Association , Inc ., Case No . 4D19-3367 ( Fla . 4th DCA 2021 ). A homeowners ’ association lien filed under Florida Statute section 720.3085 may be amended .
Aquarius Condominium Association , Inc . v .
Goldberg , Case No . 4D19-3403 ( Fla . 4th DCA 2021 ). Failure to comply with the requirement for non-binding arbitration of those condominium disputes set forth in Florida Statute section 718.1255 does not deprive the trial court of jurisdiction but is a condition precedent to filing suit .
Reconco v . Integon National Insurance
Company , Case No . 4D20-887 ( Fla . 4th DCA 2021 ). A homeowner who has insurance forceplaced on her home is not a third-party beneficiary of the force-placed insurance policy .
Buechel v . Shim , Case No . 5D19-3716 ( Fla . 5th DCA 2021 ). A court proceeding under Florida Statute section 56.29 may compel a party over whom it has in personam jurisdiction to “ act on property that is outside of the court ’ s jurisdiction .