REAL ESTATE Corner
REAL ESTATE Corner
Florida Real Property and Business Litigation Report
MANNY FARACH
Jackson v . Bank of America , N . A ., Case No . 16-16685 ( 11th Cir . 2018 ). Eleventh Circuit precedent holds that a trial court may strike a shotgun pleading and impose sanctions if the deficiencies are not cured by the amended pleading .
Taylor , Bean & Whitaker Mortgage Company v . Wright , Case No . 1D17-1432 ( Fla . 1st DCA 2018 ). A successor-in-interest plaintiff may dismiss a lawsuit without a court order substituting itself as the plaintiff , and if so , will not be responsible for any suit fees .
Iezzi Family Limited Partnership v . Edgewater Beach Owners Association , Inc ., Case No . 1D16-5878 ( Fla . 1st DCA 2018 ). Members of not-for-profit condominium associations may not avoid pre-suit requirements for derivative actions .
DePrince v . Starboard Cruise Services , Inc ., Case No . 3D16-1149 ( Fla . 3d DCA 2018 ). On rehearing , the Third District holds that a party seeking rescission of a contract based on a unilateral mistake does not have to prove that she was induced into making the mistake by the other party .
Gonzalez v . Federal National Mortgage Association , Case No . 3D17-1246 ( Fla . 3d DCA 2018 ). A foreclosing lender may recover payments due outside of the five-year statute of limitations .
Pettway v . City of Jacksonville , Case No . 1D17-2279 ( Fla . 1st DCA 2018 ). The mailing of the final order of a local administrative agency may , under the rules of the local agency and the municipality , constitute the “ filing with the clerk of the lower tribunal ” as required for rendition under Florida Rule of Appellate Procedure 9.020 ( i ).
Pijuan v . Bank of America , N . A ., Case No . 3D16-1553 ( Fla . 3d DCA 2018 ). A lender must plead and prove a default under a loan modification agreement in order to foreclose if the court finds that the loan modification agreement was entered into by the parties .
Jahangiri v . 1830 North Bayshore , LLC , Case No . 3D17-529 ( Fla . 3d DCA 2018 ). The following provision is too indefinite as to how future rent will be determined , and is thus unenforceable : RENEWAL OPTIONS : Upon six months ( sic ) notice and provided [ lessee ] is not in default of any provision of this Lease , LESSOR agrees that [ lessee ] may renew this Lease for two five-year renewal options , each renewal at the then prevailing market rate for comparable commercial office properties .
Bank of America , N . A . v . Eastridge , Case No . 5D17-2541 ( Fla . 5th DCA 2018 ). The 2013 amendments to Florida Statute section 95.18 ( 1 ) ( adverse possession without color of title ) merely added a “ tacking provision ” and did not remove the requirement that claimant ( including any “ tacked on ” predecessors ) have adversely occupied the property for seven years in order to prevail on a claim of adverse possession .
Spirit Airlines , Inc . v . Maizes , Case No . 17- 14415 ( 11th Cir . 2018 ). Parties , by their choosing to adopt the Commercial Rules of the American Arbitration Association , indicate a “ clear and unmistakable ” intent to have an arbitrator decide whether their particular arbitration agreement permits class arbitration .
Kaye v . Blue Bell Creameries , Inc . ( In re BFW Liquidation , LLC ), No . 17-13588 ( 11th Cir . 2018 ). ecl “ New value ” does not need to remain unpaid to constitute a defense under 11 U . S . C . § 547 ( c )( 4 ) against a preference action .
Aquasol Condominium Association , Inc . v . HSBC Bank USA , National Association , Case No . 3D17-352 ( Fla . 3d DCA 2018 ). A lender need prove only that is the holder or owner of a note , i . e ., it does not have to prove it is both owner and holder , to have standing to foreclose .
Winfield Investments , LLC v . Pascal-Gaston Investments , LLC , Case No . 5D17-1304 ( Fla . 5th DCA 2018 ). A defendant cannot be held liable for fraudulently misrepresenting that a property is free of mortgages if the existence of the mortgage is obvious to him , i . e ., can be ascertained through a search of the public records . Moreover , the Fifth District again certifies the following question to the Florida Supreme Court : DID THE COURT IN BUTLER OVERRULE THE DECISIONS IN BESETT , JOHNSON , AND SCHOTTENSTEIN BY HOLDING THAT JUSTIFIABLE RELIANCE IS NOT AN ESSENTIAL ELEMENT OF FRAUDULENT MISREPRESENTATION ?
Chakra 5 , Inc . v . The City of Miami Beach , Case No . 3D16-2569 ( Fla . 3d DCA 2018 ). Accrual of a landowner ’ s 42 U . S . C . § 1983 claim against a government is determined by federal , not state law , and the statute of limitations begins to run when plaintiffs know or should have known “( 1 ) that they have suffered the injury that forms the basis of their complaint and ( 2 ) who has inflicted the injury .”
Torres v . Bank Of New York , Case No . 4D17- 1625 ( Fla . 4th DCA 2018 ). A borrower that successfully defends on the basis of failure to lender to prove entitlement to enforce the note is not entitled to an award attorney ’ s fees but is entitled to an award of costs under Florida Statute section 57.041 ( 1 ) and Florida Rule of Civil Procedure 1.420 .
Sacks v . The Bank Of New York Mellon , Case No . 4D17-2122 ( Fla . 4th DCA 2018 ). The “ trustworthiness ” requirement of Bank of N . Y . v . Calloway , 157 So . 3d 1064 ( Fla . 4th DCA 2015 ), is not satisfied if the evidence ( an affidavit in this case ) does not reflect the steps taken by the affiant to verify the accuracy of the financial records .
SEE THE REAL ESTATE CLE FLYER ON PAGE 17 FOR OUR NEXT SCHEDULED SEMINAR OCTOBER 17 , 2018