REAL ESTATE CORNER
Florida Real Property and Business Litigation Report ( Continued )
MANUEL FARACH
Perlman v . PNC Bank , N . A ., Case No . 21- 10432 ( 11th Cir . 2022 ). A receiver appointed under Florida Statute Section 501.207 ( 3 ) of the Florida Deceptive and Unfair Trade Practices Act must still comply with Isaiah v . JPMorgan Chase Bank , 960 F . 3d 1296 , 1308 ( 11th Cir . 2020 ), and establish that it had “ at least one innocent officer or director ” in order to have standing as an “ honest corporation .”
Rubinstein v . Yehuda , Case No . 20-11189 ( 11th Cir . 2022 ). A R . I . C . O . claim arising from the sale of a hotel without paying investors contains enough substance that it is not “ obviously without merit ” and can thus be the basis for supplemental federal jurisdiction under 28 U . S . C . § 1367 even if the R . I . C . O . claim is dismissed .
Lamirand v . Fay Servicing , LLC , No . 20- 14286 ( 11th Cir . 2022 ). A periodic mortgage statement of money owed sent as required by the Truth in Lending Act can also double as a demand for payment under the Fair Debt Collection Practices Act (“ F . D . C . P . A .”) and must , accordingly , be truthful and correct to avoid liability under the F . D . C . P . A .
Huggins v . Lueder , Larkin & Hunter , LLC , Case Nos . 20-12957 , 12959 , 12961 , 14320 , 14318 , & 14319 ( 11th Cir . 2022 ). Rule 11 sanctions motions can be filed after final judgment .
Auriga Polymers Inc . v . PMCM2 , LLC , Case No . 20-14647 ( 11th Cir . 2022 ). Amounts paid post-petition that qualify as an administrative expense claim under Bankruptcy Code § 503 ( b )( 9 ) ( paid within twenty days of bankruptcy petition ) also count toward a “ new value ” defense under Code § 547 ( c )( 4 ).
Royal Palm Properties , LLC v . Pink Palm Properties , LLC , Case No . 21-10872 ( 11th Cir . 2022 ). A finding that neither party was a prevailing party for purposes of Federal Rule of Civil Procedure 54 is permissible in some cases .
In Re : Amendments To Florida Rules of Civil Procedure , Florida Rules of General Practice and Judicial Administration , Florida Rules of Criminal Procedure , Florida Probate Rules , Florida Rules of Traffic Court , Florida Small Claims Rules , and Florida Rules of Appellate
Procedure , Case No . SC21-990 ( Fla . 2022 ). Florida Rules of Practice are amended to further permit the use of communications technology during court proceedings , include jury trials .
Whitten v . Clarke , Case No . 20-14352 ( 11th Cir . 2022 ). A party that files a derivative suit under Delaware corporate law must either make a demand on the board of directors to rectify the alleged wrongs or show why demand is excused , and if so , must adequately plead why demand is excused .
Rockwell at Amelia Passage , LLC v .
Williams , Case No . 1D21-2663 ( Fla . 1st DCA 2022 ). A force majeure clause does not extend the deadline for closing a real estate sale contract when the purported force majeure event ( the pandemic ) did not cause the Buyer ’ s failure to acquire permit approvals and the parties did not accommodate for the known pandemic in their last contract extension .
Ivy Chase Apartment Property , LLC v . Ivy Chase Apartments , Ltd ., Case No . 2D21-436 ( Fla . 2d DCA 2022 ). Witness testimony alone without submitting the underlying business records is insufficient to constitute competent , substantial evidence unless the witness has personal knowledge of the information contained in the business records .
Joseph Spine , P . A . v . Andrew Moulton , M . D ., Case No . 2D21-781 ( Fla . 2d DCA 2022 ). A party seeking an injunction under Florida Statute section 542.335 is entitled to a presumption of irreparable injury and evidence that the affected party did not suffer a decline in revenue is insufficient to prove lack of irreparable injury . PBCBA BAR BULLETIN
22
814 Property Holdings , LLC v . New Birth Baptist Church Cathedral of Faith International , Inc ., Case No . 3D20-0233 ( Fla . 3d DCA 2022 ). A right of first offer for purchase of real property which dictates the price and is unlimited in duration constitutes an impermissible restraint on alienation and is void .
CFLB Management , LLC v . Mabipa Overseas , S . A ., Case No . 3D20-1714 ( Fla . 3d DCA 2022 ). It is not error to include an award of interest in a final judgment for money lent .
FlexFunds Holdings , LLC v . Rivero , Case No . 3D21-1315 ( Fla . 3d DCA 2022 ). A lawyer cannot defend both the company and its owners or board of directors in a suit where the opposing party has filed derivative claims alleging improper actions by the owners or board .
William Hamilton Arthur Architect , Inc . v . Schneider , Case No . 3D22-834 ( Fla . 3d DCA 2022 ). A trial court cannot order disclosure of attorney-client communications or broad discovery of electronic media of a party despite threatening communications by the party .
Nationstar Mortgage LLC v . DeSouza , Case No . 1D21-2288 ( Fla . 1st DCA 2022 ). A party who does not comply with the requirement to timely intervene in an action after publication of a lis pendens is not a proper party to a foreclosure , even if the party has an unrecorded deed that predated the foreclosure .
Bass Venture Corporation v . Devom , LLC , Case No . 2D20-2725 ( Fla . 2d DCA 2022 ). An award of lost profits requires evidence that expenses were applied to gross revenues .