PBCBA BAR BULLETINS 0817 PB Bar Bully Sept PRINT - Page 9

Real Property and Business Litigation Report by Manuel Farach California Public Employees’ Retirement System v. ANZ Securities, Inc., Case No. 16–373 (2017). The three-year time limit of Section 13 of the Securities Act of 1933 is a statute of repose not subject to equitable tolling, and a party that opts out of a timely filed class action and files an individual action more than three years after accrual is barred from recovery. Pollitzer v. Gebhardt, Case No. 16-11506 (11th Cir. 2017). A Chapter 7 bankruptcy case can be dismissed under 11 U.S.C. § 707(b)(granting bankruptcy relief can be denied if doing so would be “abuse” of the bankruptcy code) even if the case was originally filed as a Chapter 13 case. Bankers Lending Services, Inc. v. Regents Park Investments, LLC, No. 3D17-439 (Fla. 3d DCA 2017). Certiorari, not Florida Rule of Appellate Procedure 9.130(a)(3)(B), is the proper method to review orders granting or discharging lis pendens and bonds associated therewith. Klebanoff v. Bank of New York Mellon, Case No. 5D16- 1637 (Fla. 5th DCA 2017). The Fifth District distinguishes Hicks v. Wells Fargo Bank, N.A., 178 So. 3d 957 (Fla. 5th DCA 2015), and Collazo v. HSBC Bank USA, N.A., 213 So. 3d 1012 (Fla. 3d DCA 2016), based on their facts, and holds that a complaint alleging a default on a date “and all subsequent payments thereafter” is not barred by the statute of limitations. Venice HMA, LLC v. Sarasota County, Case No. SC15-2289 (Fla. 2017). Whether a special law is constitutional does not depend on whether the law benefits private as opposed to public interests. Winchel v. PennyMac Corp., Case No. 2D15-5601 (Fla. 2d DCA 2017). Standing is an affirmative defense which must be proven by plaintiff at trial, and Rule 1.530 provides that a defendant may raise the issue of standing on appeal even if not raised at trial. DDRA, LLC v. JARM, LLC, Case No. 3D16-2631 (Fla. 3d DCA 2017). The question of arbitrability of a contract is for a court to determine unless the parties have agreed otherwise. Holmes Regional Medical Center, Inc. v Allstate Insurance Company, Case No. SC15-1555 (Fla. 2017). A judgment debtor is not entitled to seek equitable subrogation against a subsequent tortfeasor until the debtor has satisfied the judgment. Forero v. Green Tree Servicing, LLC, Case No. 1D16-2151 (Fla. 1st DCA 2017). The two-dismissal rule does not bar subsequent suits, it merely makes the prior suit res judicata as to subsequent suits. Additionally, “all subsequent defaults” defeats a statute of limitations argument if any subsequent defaults occurred within the statute of limitations. Bonita Real Estate Partners, LLC v. SLF IV Lending, L.P., Case No. 2D15-5492 (Fla. 2d DCA 2017). A deficiency decree arising out of foreclosure of a Florida September 2017 property is controlled by Florida law notwithstanding loan documents choosing the law of another state. Building B1, LLC v. Component Repair Services, Inc., Case No. 3D16-1286 (Fla. 3d DCA 2017). A challenge to a party’s inactive corporate status must be raised prior to final judgment otherwise it is waived. Kebreau v. Bayview Loan Servicing, LLC, Case No. 4D16- 2010 (Fla. 4th DCA 2017). The Fourth District joins the First, Second and Third Districts in holding that “all subsequent defaults” cures possible statute of limitations issues if any subsequent defaults occurred within the statute of limitations. City of Pompano Beach, Florida v. Beatty, Case Nos. 4D16- 2621 and 4D16-3699 (Fla. 4th DCA 2017). A land-lease which provides for re-appraisal of rental payments at specific times limits re-appraisal rights to only those specific dates. Bautista REO U.S., LLC v. ARR Investments, Inc., Case No. 4D16-3658 (Fla. 4th DCA 2017). Even if failure to do so results in loss of real property, a trial court may not issue an injunction to require a lender to deliver an estoppel letter in a certain amount as borrower has an adequate remedy at law and there is no irreparable harm for any breach. Don Facciobene, Inc. v. Hough Roofing, Inc., Case Nos. 5D15-1527 (Fla. 5th DCA 2017). A written construction contract containing a merger and integration clause replaces an existing oral agreement, even if the construction is substantially completed. Camargo v. Prime West, Inc., Case No. 3D16-555 (Fla. 3d DCA 2017). An administrative stamp as follows does not convert a non- final order into an appealable, final order: THE COURT DISMISSES THIS CASE AGAINST ANY PARTY NOT LISTED IN THIS FINAL ORDER OR PREVIOUS ORDER(S). THIS CASE IS CLOSED AS TO ALL PARTIES. Transcapital Bank v. Shadowbrook at Vero, LLC, Case No. 4D14-4650 (Fla. 4th DCA 2017). The Caveat Emptor Doctrine remains in commercial transactions, subject only to exceptions for an artifice or trick has been employed, where the other party does not have an equal opportunity to learn facts, or where a party undertakes to disclose facts but fails to disclose all facts. Ditech Financial LLC v. White, Case No. 4D16-3213 (Fla. 4th DCA 2017). The Lis Pendens Act, Florida Statute section 48.23(1)(d), does not require a party holding a recorded superior lien to intervene in a case within thirty days. H. Gregory 1, Inc. v. Cook, Case No. 4D17-929 (Fla. 4th DCA 2017). Use of the words “shall” and “exclusive” in a venue selection clause make use of the venue selection clause mandatory. Page 9