REAL ESTATE Corner
REAL ESTATE Corner
Florida Real Property and Business Litigation Report
MANNY FARACH
Cadwell v . Kaufman , Englett & Lynd , PLLC , Case No . 17-10810 ( 11th Cir . 2018 ). An attorney violates Bankruptcy Coe Section 526 ( a )( 4 ) if he instructs a client to pay his bankruptcy-related legal fees using a credit card .
Spencer v . Ditech Financial , LLC , Case No . 2D16-4817 ( Fla . 2d DCA 2018 ). To establish a routine practice that a letter was mailed , the witness must be employed by the entity drafting the letters and must have firsthand knowledge of the company ’ s routine practice for mailing letters .
Finest Known LLC v . Weiss Research , Inc ., Case No . 4D16-3667 ( Fla . 4th DCA 2018 ). A party joining a third party under Florida Rule of Civil Procedure 1.170 ( h ) does not need to allege the third party is responsible under theories of indemnity , contribution , or subrogation as one would need to do under Ruel 1.180 ( a ).
Emerald Estates Community Association v . U . S . Bank National Association , Case No . 4D17-1278 ( Fla . 4th DCA 2018 ). A lender is not required to pay attorney ’ s fees and costs incurred prior the “ safe harbor ” amounts .
National American Home , LLC v . Deutsche Bank National Trust Company , Case No . 4D17-2614 ( Fla . 4th DCA 2018 ). A mortgage foreclosure is founded on a duly recorded instrument and therefore a lis pendens for the foreclosure does not expire one year from recording .
United States v . Microsoft Corporation , Case No . 17 – 2 ( 2018 ). The Clarifying Lawful Overseas Use of Data Act ( CLOUD Act ) amended the Stored Communications Act , 18 U . S . C . § 2701 et seq ., such that the United States may , by subpoena , reach electronic communications whether stored inside or outside the country .
Tank Tech , Inc . v . Valley Tank Testing , L . L . C ., Case No . 2D16-2100 ( Fla . 2d DCA 2018 ). Parties who are not in contractual privity do not owe a duty to each other on negligence principles ; Curd v . Mosaic Fertilizer , LLC , 39 So . 3d 1216 , 1228 ( Fla . 2010 ), distinguished .
OneWest Bank , FSB v . Palmero , Case No . 3D14-3114 ( Fla . 3d DCA 2018 ). A trial court may not issue a ruling on a basis not raised as an affirmative defense , e . g ., holding that foreclosure of a reverse mortgage is prohibited by the federal reverse mortgage statute , 12 U . S . C . § 1715z-20 ( j ) (“. . . the repayment of a reverse mortgage loan is deferred until the death of both the borrowing homeowner and the homeowner ’ s spouse ” when the statute was not raised by the pleadings .
The Waves of Hialeah , Inc . v . Machado , Case No . 3D18-300 ( Fla . 3d DCA 2018 ). Florida Statute section 45.045 ( 2 ) permits a trial court , under appropriate circumstances and when there is no policy of insurance , to reduce the amount of a superseadeas bond filed to stay execution of a money judgment pending appeal .
Oil States Energy Services , LLC V . Greene ’ s Energy Group , LLC , Case No . 16 – 712 ( 2018 ). Patents are public rights granted by franchise , and accordingly , inter partes review by the United States Patent Office does not violate the Constitution .
Webb v . Blue , Case No . 1D17-1510 ( Fla . 1st DCA 2018 ). A decedent survived by heirs ( but no spouse or minor children ) may pass his homestead to a non-heir by general devise ; a specific devise is not required .
HSBC Bank USA , National Association v . Nelson , Case No . 2D17-740 ( Fla . 2d DCA 2018 ). A mortgage foreclosure complaint which alleges an initial default outside the statute of limitations but also alleges “ all subsequent defaults ,” some of which subsequent defaults occured within the statute of limitations , is not barred by the statute of limitations .
Fersom Mortgage , Inc . v . Moreno , Case No . 3D17-509 ( Fla . 3d DCA 2018 ). A pending cross-claim survives the dismissal of the main claim .
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Blok Builders , LLC v . Katryniok , Case No . 4D16-1811 ( Fla . 4th DCA 2018 ). On rehearing , the Fourth District re-affirms that the indemnification requirements of Florida Statute section 725.06 do not apply to projects whose scope of work is exclusively excavation .
Smulders v . Thirty-Three Sixty Condominium Association , Inc ., Case No . 4D17-1138 ( Fla . 4th DCA 2018 ). An association ’ s having spent a special assessment does not render moot declaratory actions filed to contest the special assessment .
North Shore Medical Center , Inc . v . Accredited Health Solutions , Inc ., Case No . 4D17-2229 ( Fla . 4th DCA 2018 ). A successor entity is bound by the arbitration agreement entered into by its predecessor entity .
Custom Marine Sales , Inc . v . Boywic Farms , LTD ., Case No . 4D17-2828 ( Fla . 4th DCA 2018 ). A Florida Statute section 83.232 deposit into court registry is not required when lease payments have not yet begun according to the terms of the lease .
Guy v . Plaza Home Mortgage , Inc ., Case No . 4D17-3335 ( Fla . 4th DCA 2018 ). A court clerk may not backdate judgments for docketing purposes as doing so improperly affects the date of rendition for appellate purposes .
PNC Bank National Association v . Roberts , Case No . 5D16-3341 ( Fla . 4th DCA 2018 ). Failure to respond to discovery may waive a party ’ s affirmative defenses .