PBCBA BAR BULLETINS pbcba_bulletin_Dec. 2019 - Page 26

REAL ESTATE CORNER Florida Real Property and Business Litigation Report MANUEL FARACH Lewis v. Innova Investment Group, LLC , Case No. 2D18-2116 (Fla. 2d DCA 2019). A party that unequivocally surrenders their property in a Chapter 13 bankruptcy proceeding is estopped from challenging a foreclosure proceeding in state court; Fischer v. HSBC Bank USA , 257 So. 3d 512, 515 (Fla. 2d DCA 2018), is distinguished. The time to appeal a final order runs from rendition of the final order, and a re- publication of the final order does not create a new period to appeal. Hurchalla v. Homeowners Choice Property & Casualty Insurance Company, Inc. , Case Nos. 4D18-2740 and 4D18-2935 (Fla. 4th DCA 2019). An insurer may estopped from later denying a defense even where the policy does not cover the claim where the insurer defends the insured and the insured has been prejudiced by the insurer’s assumption of the insured’s defense. Soho Realty, LLC v. The Alexander Condominium Association, Inc. , Case No. 3D18-1444 (Fla. 3d DCA 2019). A mixed-use project in which some units Seawatch at Marathon Condominium are occupied by permanent residents and Association, Inc. v. The Guarantee Company some by transient residents is neither a of North America, USA , Case Nos. 3D18-1450, “hotel” nor a “suite hotel” under the local Cabrera v. U.S. Bank National Association , ordinance. Case No. 4D18-3537 (Fla. 4th DCA 2019). 3D18-1340, & 3D18-1337 (Fla. 3d DCA 2019). An order dismissing a counterclaim seeking Paragraph 4.2 of the standard American Institute of Architects A312 surety bond form National Collegiate Student Loan Trust class certification of alleged foreclosure permits the surety to select the defaulting 2007-3 v. De Leon , Case No. 3D18-1494 (Fla. damages is, in effect, an order denying class certification under Florida Rule of principal as the contractor to finish the 3d DCA 2019). project notwithstanding an objection from Res judicata only applies to claims actually Appellate Procedure 9.130(a)(3)(C)(vi) and is litigated and decided in a different case, immediately appealable. the owner. and accordingly a bankruptcy creditor Mt. Plymouth Land Owners' League, Inc. whose claims were not actually decided in Mahinbakht v. Mahinbakht , Case No. 4D18- v. Lake County, Florida , Case No. 5D19-780 the bankruptcy case and against which the 3614 (Fla. 4th DCA 2019). discharge injunction may not apply, is not Residence in Florida alone is not a basis to (Fla. 5th DCA 2019). A county is bound by its own ordinances, estopped from bringing a state court suit for deny a Motion for Forum Non Conveniens. and may not permit a communications the debt. Kelly v. Duggan , Case No. 1D17-3618 (Fla. 1st tower in contravention of the setbacks in its land development regulations when the Nunez v. Allen , Case No. 5D14-4386 (Fla. 5th DCA 2019 Condominium association assessments regulations do not authorize variances in DCA 2019). Attorneys who are parties to litigation and are a “consumer debt” under the Florida this instance. successfully represent themselves are Consumer Collection Practices Act, Florida Georgia State Conference of the NAACP v. entitled to an award of attorney’s fees so long Statutes section 559.55 - .785; conflict City of LaGrange, Georgia , Case No. 18-10053 as the awarded time was spent as attorney certified with Bryan v. Clayton , 698 So. 2d (not as a party) and is not duplicative of 1236 (Fla. 5th DCA 1997), rev. denied, 707 So. (11th Cir. 2019). 2d 1123 (Fla. 1998), cert. denied, 524 U.S. 933 Section 3604(b) of the Fair Housing Act, other counsel’s work. (1998). 42 U.S.C. § 3601 et seq. (discrimination based on “race, color, religion, sex, familial Gannon v. Cuckler , Case No. 2D17-4888 (Fla. Chapman v. Town of Redington Beach , Case status, or national origin” in connection 2d DCA 2019). with the “sale or rental of a dwelling, or Lack of personal jurisdiction must be raised No. 2D16-5263 (Fla. 2d DCA 2019). in the provision of services or facilities in by motion pursuant to Florida Rule of Civil A property owner suing an adjoining connection therewith” is prohibited) also Procedure 1.140(b) otherwise it is waived; property owner for violation of municipal applies to conduct after an individual has conflict certified with Third, Fourth and ordinances must show special damages Fifth District Courts of Appeal. but may - by virtue of their proximity to the acquired housing. violation - be peculiarly and sufficiently Thompson v. Gargula (In Re: Glenn Lee U.S. Bank, National Association v. Sturm , affected by the violation to have suffered special damages notwithstanding the Thompson) , Case No. 18-11885 (11th Cir. Case No. 2D18-757 (Fla. 2d DCA 2019). A foreclosing lender may claim as damages injuries might be described as similar to 2019). 11 U.S.C. section 727(d)(2) (discharge vacated all monies due, not just those that accrued other community members. due to failure to disclose property of the within five years of default; the Second estate) - unlike section 727(d)(1) (discharge aligns with the Third, Fourth and Fifth Systemax, Inc. v. Fiorentino , Case No. 3D17- 2722 (Fla. 3d DCA 2019). vacated due to fraud of debtor) - does not Districts. The victim of a federal crime may, under require the party requesting revocation have been devoid of knowledge of the bad Eskenazi v. Eskenazi , Case 3D18-1924 (Fla. 18 U.S.C. § 3664 (m)(1)(B), record but cannot 3d DCA 2019). enforce a federal restitution order. acts during the bankruptcy. A party that seeks affirmative relief from a Florida Agriculture and Mechanical court consents to the court’s jurisdiction. University v. United Faculty of Florida , Case No. 1D17-2405 (Fla. 1st DCA 2019). PBCBA BAR BULLETIN 26