Real Estate, Financial Services and Title Insurance Update: Week Ending January 7, 2022 | Carlton Fields

Real Estate Update

  • Bankruptcy / Section 505(a)(2)(C) / Property Taxes: Section 505(a)(2)(C) of the Bankruptcy Code prevented the owner from contesting allegedly improper property taxes in his bankruptcy proceedings because the application of this section was only prospective and that the owner had engaged in relevant conduct under the law — its federal bankruptcy proceeding — after the effective date of the law — 5200 between. ltd. vs. city ​​of ny, No. 20-13753 (11th Cir. January 5, 2022) (confirmed and motion for certification of the question dismissed)
  • Bankruptcy / Section 505(a)(2)(C) / Ownership: Rejecting the owner’s argument that the application of Section 505(a)(2)(C) of the Bankruptcy Code would infringe a pre-existing “property right” because the owner has failed to provide supporting his contention that the right to challenge ad valorem tax assessments is “an offspring” of the general “property right”, and even if such a right existed, Section 505(a)(2)(C) does not “would not infringe” because the right expired when the owner did not challenge his liability to tax by the appropriate means – 5200 between. ltd. vs. city ​​of ny, No. 20-13753 (11th Cir. January 5, 2022) (confirmed and motion for certification of the question dismissed)
  • Riparian Rights / Submerged Sovereign Lands: The trial court erred in finding that the boat lift seawall was the mean high water mark indicating the boundary between the private uplands and the public submerged lands and that the shoreline access rights of the owner at the South Fork of New River flowed from said boundary, because the State of Florida never held such submerged land in trust and said land could not be treated as being or having been sovereign submerged land merely because ‘she was submerged artificially – Florida Department of Transp. against Lauderdale Boat Yard, LLCNo. 4D20-1184 (Fla. 4th DCA 5 January 2022) (reversed and dismissed)
  • Riparian rights / Implied easement / Due process / Remedies: The trial court erred in declaring an implied easement of necessity over submerged land because the trial court violated due process by ordering an equitable relief of an implied easement when such relief is not was ever requested in the pleadings or pleaded at trial by any party – Florida Department of Transp. against Lauderdale Boat Yard, LLCNo. 4D20-1184 (Fla. 4th DCA 5 January 2022) (reversed and dismissed)
  • Riparian rights / Implicit easement / Due process / Necessary part: The owner of property upon which an implied easement of necessity may be imposed by a court is a necessary party to such proceedings where the rights of another landowner to use the servient land will be judged – Florida Department of Transp. against Lauderdale Boat Yard, LLCNo. 4D20-1184 (Fla. 4th DCA 5 January 2022) (reversed and dismissed)
  • Riparian rights / Implied easement / Due process / Necessary part: The trial court erred in declaring an implied easement of necessity on submerged land because the trial court violated due process by imposing the implied easement on a property apparently owned by an owner who was a necessary party in the case but who was never actually a party to the case and did not have the opportunity to be heard before the court of first instance rendered its judgment – Florida Department of Transp. against Lauderdale Boat Yard, LLCNo. 4D20-1184 (Fla. 4th DCA 5 January 2022) (reversed and dismissed)
  • Negligence / Fabre Défense / Developer: The developer is not authorized to be listed as Fabre defendant on the verdict form because 24 years passed between when the developer transferred the easement of the boardwalk to the homeowners association in 1992 and when the accident happened in 2016 – JL Prop. Owners Ass’n, Inc. v. SchnurrNo. 4D19-3474 (Fla. 4th DCA January 5, 2022) (confirmed in part, reversed in part and dismissed)
  • Foreclosure / Section 57.105(7) / Lawyers‘ Costs: Borrower is entitled to prevailing party attorneys’ fees pursuant to Florida Statute 57.105(7), even if Borrower has asserted no continuing defense, following voluntary dismissal. by the lender of the underlying foreclosure action because the borrower and lender were parties to a contract with retainer and the borrower prevailed in the contract action – Verde v HSBC Bank USA, Nat’l Ass’nNo. 3D17-2171 (Fla. 3d DCA January 5, 2022) (reversed and dismissed)

Financial Services Update

  • TILA / Section 1611: TILA’s Criminal Liability Provision (Section 1611) does not provide a private right of action Owens vs. Capital One Auto Fin.#8:21-cv-00849 (MD Fla. January 3, 2022)
  • FCRA/CRA Liability: CRAs cannot be held liable when the accuracy in question requires a judicial assessment of the validity of the claim, but only when the information declared does not correspond to the information provided – Sessa c. Linear Motors, LLC#7:19-cv-09914 (SDNY December 20, 2021)
  • FCRA/CRA Liability: The CRA who provided accurate information about what the supplier provided was not required to – and indeed could not – challenge the legal validity of the debt instrument as provided by the supplier – Sessa c. Linear Motors, LLC#7: 19-cv-09914 (SDNY December 20, 2021) (granting summary judgment in favor of CRA)
  • TCPA / Unsolicited Fax Advertising: An unsolicited faxed invitation to participate in paid market research did not constitute “unsolicited advertising” – Bruce Katz, MD, CP vs. Focus Forward, LLCno. 21-1224 (2nd Cir. January 6, 2022)
  • FDCPA / Pleading Requirements: Failure to Allege Loan Servicer Obtained Account After Failure Subjected FDCPA Claims to Dismissal – DeSimone vs. Select Portfolio Servicing, Inc.#1: 20-cv-03837 (EDNY January 4, 2022)

Title Insurance Update

No cases of interest to report.