PBCBA BAR BULLETINS pbcba_bulletin_April 2019 | Page 27

REAL ESTATE C o r n e r
Florida Real Property and Business Litigation Report
client, may be sanctioned under Florida
Statute section 57.105(3)(c). Additionally,
fees may be awarded when a suit asserts a
MANNY FARACH
theory of liability using more than one, but
separate, factual scenarios in support of the
Timbs v. Indiana, Case No. 17–1091 (2019).
theory, and only one of the factual scenarios
The Constitution’s prohibition against is not supported by law.
excessive fines applies to the States.
Verizon Wireless Personal Communications,
Al-Rayes v. Willingham , Case Nos. 18-11059, LP v. Bateman , Case No. 2D18-161 (Fla. 2d
18-11539 (11th Cir. 2019).
DCA 2019).
A husband judgment debtor and his wife An
arbitration
agreement
survives
can form an “association in fact” under a bankruptcy discharge because the
Boyle v. United States, 556 U.S. 938, 944 arbitration provision is not a “debt” or
(2009)(individuals in an association-in- “claim” as defined under the Bankruptcy
fact enterprise are “associated together for Code.
a common purpose of engaging in a course
of conduct”) for R.I.C.O. purposes liability Zurich American Insurance Company v.
purposes.
Puccini, LLC , Case No. 3D17-0690 (Fla. 3d
DCA 2019).
Hillcrest Property, LLP v. Pasco County , The Third District employs the “case by
Case No. 17-14789 (11th Cir. 2019).
case” approach in determining whether a
Executive action such as a land-use tenant is a co-insured under an insurance
decision never gives rise to a substantive- policy covering a landlord, and thus
due-process claim unless it infringes on a immune from insurer subrogation actions
fundamental right.
against the tenant.
2017 Bell Ranch Residential v. Burrill , Case
No. 2D17-4871 (Fla. 2d DCA 2019).
The statutory presumption under Florida
Statute Section 45.033(1) that the owner of
the real property at the time of the filing
of the lis pendens is entitled to surplus
foreclosure funds may be rebutted only by
proof of either a voluntary or involuntary
transfer or assignment from the record
owner to the claimant of the right to collect
the surplus.
Gundel v. AV Homes, Inc., Case No. 2D18-899
(Fla. 2d DCA 2019).
Certiorari relief is permitted to seek review
of an order denying a motion to dismiss
under the Anti-SLAPP statute (Florida
Statute section 768.295(3)) because the
statute itself seeks to avoid unnecessary
litigation.
Laptopplaza, Inc. v. Wells Fargo Bank, NA,
Case No. 3D18-2190 (Fla. 3d DCA 2019).
Attorney’s fees may be an element of
damages in actions such a fraudulent
conveyances, and orders determining
liability but not amount of damages are not
appealable as the order is not yet final.
Davis v. Bailynson , Case No. 4D18-1040 (Fla.
4th DCA 2019).
An attorney alone, not the attorney and his
required to follow 3709 N. Flagler Drive
Prodigy Land Trust v. Bank of America,
N.A., 226 So. 3d 1040 (Fla. 4th DCA 2017), and
allow a subsequent title owner to challenge
a foreclosing plaintiff’s lack of standing to
foreclose on a mortgage).
Asset Recovery Group, LLC v. Wright, Case
No. 3D18-2351 (Fla. 3d DCA 2019).
A receiver appointed by a trial court arising
out of an apartment complex foreclosure
may not be sued for personal injury arising
out of management of the complex unless
the receiver acted outside the scope of the
receivership.
Deutsche Bank National Trust Company v.
Viteri , Case Nos. 4D17-3689 and 4D18-388
(Fla. 4th DCA 2019).
A lender does not have to prove when a
loan was placed into a pool if it holds the
original note at trial and the note placed
into evidence at trial is the same as was
attached to the complaint.
Perez v. Deutsche Bank National Trust
Company, Case No. 2D17-1043 (Fla. 2d DCA
2019).
Merely introducing a default letter without
introducing evidence the letter was
actually sent does not satisfy the condition
precedent requirement of a mortgage.
Yost-Rudge v. A to Z Properties, Inc., Case
No. 4D17-3204 (Fla. 4th DCA 2019).
A homestead is not “abandoned” (thus
permitting one spouse to sell without the
signature of both spouses) when the non-
consenting spouse is involuntarily forced
off the property.
Papunen v. Bay National Title Company,
Case No. 3D17-938 (Fla. 3d DCA 2019).
Amalgamated Transit Union, Local 1579 v. A buyer of foreclosed property from a lender,
City of Gainesville , Case No. 1D17-4382 (Fla. which buyer has signed a general release
1st DCA 2019).
running to the lender for the purchase,
A trial court’s order vacating an arbitration may bring suit against the title company
award and remanding the case for a new that missed post-foreclosure matters that
arbitration constitutes irreparable harm diminished buyer’s title notwithstanding
entitled the aggrieved party to petition for the release to the lender.
certiorari; conflict certified with the Third,
Fourth, and Fifth District Courts of Appeal. Obermeyer v. Bank of New York , Case No.
3D18-1637 (Fla. 3d DCA 2019).
Socarras v. Vassallo, Case No. 3D17-2579 A prevailing foreclosure defendant may not
(Fla. 3d DCA 2019).
be awarded “fees for fees,” i.e., for litigating
A home equity line of credit does not the amount of attorney’s fees to be awarded.
convert a non-marital asset into a marital
asset such that a former spouse is entitled Winter Green at Winter Park Homeowners
to 50% of the value of the asset.
Association, Inc. v. Ware, Case No. 5D18-804
(Fla. 5th DCA 2019).
Benzrent 1, LLC v. Wilmington Savings Fund
Society, FSB, Case No. 3D18-817 (Fla. 3d DCA A trial court, under its inherent power to
2019).
sua sponte reconsider its own rulings, may
Because the holding of Pealer v. Wilmington dissolve a temporary injunction regarding
Trust National Ass’n, 212 So. 3d 1137 (Fla. board elections without a motion to dissolve
2d DCA 2017), on the issue of standing being filed.
was a special concurrence, trial courts are
PBCBA BAR BULLETIN
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