PBCBA BAR BULLETINS pbcba_bulletin_Nov. 2019 | Page 26

REAL ESTATE CORNER
Florida Real Property and Business Litigation Report
MANUEL FARACH
Yarbrough v. Decatur Housing Authority ,
Case No. 17-11500 (11th Cir. 2019) (en banc).
The Housing Act of 1937, 42 U.S.C. § 1437
et seq., does not create a preponderance
standard for housing termination lawsuits
alleging a violation of 42 U.S.C. § 1983.
Miller v. Homeland Property Owners
Association, Inc. , Case No. 4D18-1647 (Fla.
4th DCA 2019).
The Business Judgment Rule applies to
decisions of property owners’ associations
so long as the association had the
contractual or statutory authority to
perform the relevant acts, and if so, when
the board acted in a reasonable manner.
Wells Fargo Bank, N.A. v. Stephenson , Case
No. 5D18-733 (Fla. 5th DCA 2019).
The Fifth District agrees with Bank of N.Y.
Mellon Tr. Co., Nat’l Ass’n v. Ginsberg, 221 So.
3d 1196, 1197 (Fla. 4th DCA 2017), and holds
that a foreclosing lender is not required
to identify the trust on whose behalf it is
acting in order to properly allege standing.
Pirate's Treasure, Inc. v. City of Dunedin,
Florida , Case No. 2D18-2774 (Fla. 2d DCA
2019).
A landowner locked in a development
dispute with a municipality may transfer
the affected land to a third party and not
lose standing to prosecute the dispute so
long as it retains an interest in the property.
Project Development Enterprise, LLC v. Elka
Holdings, LLC , Case No. 3D18-356 (Fla. 3d
DCA 2019).
The proceeds of a derivative action brought
under Florida Statutes section 605.0802
against a limited liability company are
required by Florida Statutes section
605.0805(1) to be paid to the limited liability
company and not the plaintiff.
Roth v. Nationstar Mortgage, LLC (In re
Roth) , Case No: 17-11444 (11th Cir. 2019).
An “informational statement” sent to a
borrower who has been discharged in a
Chapter 13 bankruptcy does not violate the
discharge injunction, 11 U.S.C. § 524.
Salcedo v. Hanna , Case No. 17-14077 (11th
Cir. 2019).
Sending a single text message does not
violate the Telephone Consumer Protection
Act of 1991, 47 U.S.C. § 227(b)(1)(A)(iii).
Regions Bank v. Legal Outsource PA , Case
No. 17-11736 (11th Cir. 2019).
A guarantor is not an “applicant” under the
under the Equal Credit Opportunity Act, 15
U.S.C. §§ 1691(a), 1691a(b), and accordingly
may not seek relief under the Act.
Valencia Reserve Homeowners Association,
Inc. Boynton Beach Associates, XIX, LLLP ,
Case No. 4D18-1320 (Fla. 4th DCA 2019).
It is not a violation of the Florida
Homeowner’s Association Act for a
developer to use working capital funds
contributed by purchasers to fund the
In Re: Standard Jury Instructions In Civil developer’s negative equity contributions
Cases and Standard Jury Instructions In under Florida Statute section 720.308(1)(b).
Contract And Business Cases—Joint Report
Grace and Naeem Uddin, Inc. v. Singer
No. 19-01 , Case No. SC19-185 (Fla. 2019).
The standard verdict form for breach of Architects, Inc. , Case No. 4D18-2972 (Fla. 4th
fiduciary duty is approved by the Florida DCA 2019).
A supervising architect owes a duty to a
Supreme Court.
contractor and may be held liable in tort for
Atkins North America, Inc. Tallahassee MH professional negligence notwithstanding
Parks, LLC , Case No. 1D17-2996 (Fla. 1st DCA the architect and contractor both have
2016).
contracts with the developer, i.e., the
Reformation of a mortgage will not be existence of the contracts does not bar
permitted where doing so materially affects the tort duty owed by the architect to the
a creditor who recorded a judgment lien builder.
after the recordation of the inaccurate
Fernandez v. Manning Building Supplies,
mortgage.
Inc. , Case No. 1D18-4819 (Fla. 1st DCA 2019).
Suzuki Motor Corporation v. Winckler , Case A charge for late payment of an account
No. 1D18-4815 (Fla. 1st DCA 2019).
is a delinquency charge, not a “finance
The Apex Doctrine (“[an] agency head charge” which permits a lienor not in
should not be subject to deposition, over privity to charge interest under Florida
objection, unless and until the opposing Statute section 713.06(1), and accordingly,
parties have exhausted other discovery prejudgment interest may not be awarded
and can demonstrate that the agency for this claim.
head is uniquely able to provide relevant
information which cannot be obtained Fernandez v. Marrero , Case No. 3D16-2931
from other sources.”) does not apply outside (Fla. 3d DCA 2019).
of government and thus does not apply to The payment by one party of the down
shield the C.E.O. of multinational company payment and closing costs for the purchase
of real estate with the subsequent titling
from discovery.
of the property as joint tenants with right
Hopson v. Deutsche Bank National Trust of survivorship creates a presumption of
Company , Case No. 2D18-673 (Fla. 2d DCA a gift to the non-paying party unless the
2019).
contributing party manifests an intention
A defending mortgagor that wins dismissal that a resulting trust should arise.
but does not admit privity with the plaintiff
is not entitled to an award of attorney’s Sherman v. Sherman , Case No. 4D18-3578
fees under Florida Statute section 57.105(7); (Fla. 4th DCA 2019).
Harris v. Bank of New York Mellon, 44 Fla. The standard used to determine an award
L. Weekly D141 (Fla. 2d DCA Dec. 28, 2018), is of court costs under Florida Statute section
distinguished on its facts.
57.041(1) is the “party recovering judgment”
and not the “prevailing party” standard.
Beach Towing Services, Inc. v. Sunset Land
Associates, LLC , Case Nos. 3D18-1837 & 3D18-
2168 (Fla. 3d DCA 2019).
Restrictive covenants are interpreted in a
fashion which least restricts the use of the
property.
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