PBCBA BAR BULLETINS pbcba_bulletin_april 2018 - Page 23

REAL ESTATE Corner

REAL ESTATE Corner

Florida Real Property and Business Litigation Report

MANNY FARACH
United States of America v . Stein , Case No . 16- 10914 ( 11th Cir . 2018 ). The Eleventh Circuit overrules its prior precedent and holds that while an affidavit cannot be conclusory , “ an affidavit which satisfies Rule 56 of the Federal Rules of Civil Procedure may create an issue of material fact and preclude summary judgment even if it is self-serving and uncorroborated .”
Bank of America , N . A . v . Mirabella Owners ’ Association , Inc ., Case No . 1D16-1079 ( Fla . 1st DCA 2018 ). The First District adopts the holding of Jallali v . Knightsbridge Village Homeowners Ass ’ n , 211 So . 3d 216 , 217 ( Fla . 4th DCA 2017 ), and permits an association to foreclose liens independent of the first mortgage so long as the association ’ s covenants were recorded prior to the mortgage . Moreover , First District follows the general rule that a purchase pendent lite during a foreclosure where a lis pendens has been recorded is not entitled to intervene in the action .
Jackson v . Household Finance Corp III , Case No . 2D15-2038 ( Fla . 2d DCA 2018 ). A party may introduce documents into evidence using the Business Records Exception to the Hearsay Rule in three ways : ( 1 ) offering testimony of a records custodian , ( 2 ) presenting a certification or declaration that each of the elements has been satisfied , or ( 3 ) obtaining a stipulation of admissibility . A testifying records custodian need not be the person who created the business records ; the witness may be any qualified person with knowledge of each of the elements so long as the witness uses the “ magic words ” of Florida Statute section 90.803 ( 6 ); conflict with Maslak v . Wells Fargo Bank , N . A ., 190 So . 3d 656 ( Fla . 4th DCA 2016 ), is certified .
Blok Builders , LLC v . Katryniok , Case No . 4D16- 1811 ( Fla . 4th DCA 2018 ). The indemnification requirements of Florida Statute section 725.06 do not apply to projects whose scope of work is exclusively excavation .
Inlet Marina of Palm Beach , Ltd . v . Sea Diversified , Inc ., Case No . 4D17-1406 ( Fla . 4th DCA 2018 ). The statute of limitations for actions against construction engineers begins to run from the time the defect is or should have been discovered .
PNC Bank , National Association v . MDTR , LLC , Case No . 5D16-2887 ( Fla . 5th DCA 2018 ).
A party that purchases real property after the lis pendens but is not a party to the mortgage is not entitled to prevailing party attorney ’ s fees under the mortgage .
Pelican Creek Homeowners , LLC v . Pulverenti , Case No . 5D16-4046 ( Fla . 5th DCA 2018 ). A common-law dedication of lands does not , in the absence of contrary intent , divest the dedicating party of ownership in the lands while a statutory dedication under Florida Statute section 95.361 does . Moreover , dedicated property that is abandoned on the edge of the plat is an exception to the general rule of “ halfway to the street ” and gives the abutting property owners title to the full width of the publicly dedicated property .
Grimes v . Lottes , Case No . 2D16-5557 ( Fla . 2d DCA 2108 ). Whether a sales agent ’ s statement that there are no other procuring brokers involved in a transaction is fraudulent involves factual determinations , including whether the statement was one of opinion or fact .
DeJesus v . A . M . J . R . K . Corp ., Case No . 2D17- 2374 ( Fla . 2d DCA 2018 ). Property owned by a corporation is not entitled to homestead exemption from forced levy , even if the person residing on the property is the president and owner of the corporation .
HSBC Bank USA v . Buset , Case No . 3D16-1383 ( Fla . 3d DCA 2018 ). Experts , including those on “ securitization ” issues , may not testify on legal issues . Additionally , securing a note with a mortgage does not render the note a non-negotiable note under Article 3 .
Sabido v . The Bank Of New York Mellon , Case No . 4D16-2944 ( Fla . 4th DCA 2018 ). Nationstar Mortgage LLC v . Glass , 219 So . 3d 896 ( Fla . 4th DCA 2017 ), is broader than the issue of standing and holds that that a party that is not entitled to enforce a contract cannot be burdened with the obligations under the contract .
McCampbell v . Federal National Mortgage Association , Case No . 2D16-177 ( Fla . 2d DCA 2018 ). A loan modification agreement is subject to the Best Evidence Rule and must be introduced into evidence to prove its contents .
Knight v . GTE Federal Credit Union , Case No . 2D16-3241 ( Fla . 2d DCA 2018 ). A witness that has little to no connection or knowledge of a third-party vendor cannot lay the predicate for introduction of records under the Business Records Exception to the Hearsay Rule , even if the witness uses the “ magic words .”
C & J Global Investments , Inc . v . JVS Contracting , Inc ., Case No . 2D16-4857 ( Fla . 2d DCA 2018 ). A party may not intervene in a declaratory action regarding the validity of deeds unless it has an interest such that it stands to directly and immediately gain or lose an interest it might have in the property .
Le v . Tralongo , LLC , Case No . 4D17-1325 ( Fla . 4th DCA 2018 ). The contracting to perform and actual performance of extensive “ back office ” processes through technology may be sufficient to satisfy long-arm jurisdictional requirements .
Digital Realty Trust , Inc . v . Somers , Case No . 16 – 1276 ( 2018 ). Individuals who fail to report alleged securities violation to the Securities and Exchange Commission do not fall within the Dodd-Frank Act ’ s definition of “ whistleblower ” and thus are not protected by the Act ’ s anti-retaliation provisions .
Liork , LLC v . BH 150 Second Avenue , LLC , Case No . 3D16-1881 ( Fla . 3d DCA 2018 ). Subscription agreements are not subject to lack of mutuality attacks because they are different from ordinary bilateral contracts where one party promises to perform a specific action directly in exchange for the other party performing another specific action . Moreover , the fact that real estate values fluctuate generally supports liquidated damages provisions .
Coconut Grove Acquisition , LLC v . S & C Venture , Case No . 3D17-434 ( Fla . 3d DCA 2018 ). Failure to make payments to a new servicer , even after the old servicer sent a “ goodbye letter ” advising the loan had been sold , is not an act of default when the new servicer fails to timely advise mortgagor where to send payments .
PBCBA BAR BULLETIN 23
REAL ESTATE C o r n e r Florida Real Property and Business Litigation Report MANNY FARACH United States of America v. Stein, Case No. 16- 10914 (11th Cir. 2018). The Eleventh Circuit overrules its prior precedent and holds that while an affidavit cannot be conclusory, “an affidavit which satisfies Rule 56 of the Federal Rules of Civil Procedure may create an issue of material fact and preclude summary judgment even if it is self-serving and uncorroborated.” Bank of America, N.A. v. Mirabella Owners’ Association, Inc., Case No. 1D16-1079 (Fla. 1st DCA 2018). The First District adopts the holding of Jallali v. Knightsbridge Village Homeowners Ass’n, 211 So. 3d 216, 217 (Fla. 4th DCA 2017), and permits an association to foreclose liens independent of the first mortgage so long as the association’s covenants were recorded prior to the mortgage. Moreover, First District follows the general rule that a purchase pendent lite during a foreclosure where a lis pendens has been recorded is not entitled to intervene in the action. Jackson v. Household Finance Corp III, Case No. 2D15-2038 (Fla. 2d DCA 2018). A party may introduce documents into evidence using the Business Records Exception to the Hearsay Rule in three ways: (1) offering testimony of a records custodian, (2) presenting a certification or declaration that each of the elements has been satisfied, or (3) obtaining a stipulation of admissibility. A testifying records custodian need not be the person who created the business records; the witness may be any qualified person with knowledge of each of the elements so long as the witness uses the “magic words” of Florida Statute section 90.803(6); conflict with Maslak v. Wells Fargo Bank, N.A., 190 So. 3d 656 (Fla. 4th DCA 2016), is certified. Blok Builders, LLC v. Katryniok, Case No. 4D16- 1811 (Fla. 4th DCA 2018). The indemnification requirements of Florida Statute section 725.06 do not apply to projects whose scope of work is exclusively excavation. Inlet Marina of Palm Beach, Ltd. v. Sea Diversified, Inc., Case No. 4D17-1406 (Fla. 4th DCA 2018). The statute of limitations for actions against construction engineers begins to run from the time the defect is or should have been discovered. A party that purchases real property after the lis pendens but is not a party to the mortgage is not entitled to prevailing party attorney’s fees under the mortgage. Pelican Creek Homeowners, LLC v. Pulverenti, Case No. 5D16-4046 (Fla. 5th DCA 2018). A common-law dedication of lands does not, in the absence of contrary intent, divest the dedicating party of ownership in the lands while a statutory dedication under Florida Statute section 95.361 does. Moreover, dedicated property that is abandoned on the edge of the plat is an exception to the general rule of “halfway to the street” and gives the abutting property owners title to the full width of the publicly dedicated property. Knight v. GTE Federal Credit Union, Case No. 2D16-3241 (Fla. 2d DCA 2018). A witness that has little to no connection or knowledge of a third-party vendor cannot lay the predicate for introduction of records under the Business Records Exception to the Hearsay Rule, even if the witness uses the “magic words.” C&J Global Investments, Inc. v. JVS Contracting, Inc., Case No. 2D16-4857 (Fla. 2d DCA 2018). A party may not intervene in a declaratory action regarding the validity of deeds unless it has an interest such that it stands to directly and immediately gain or lose an interest it might have in the property. Grimes v. Lottes, Case No. 2D16-5557 (Fla. 2d DCA 2108). Whether a sales agent’s statement that there are no other procuring brokers involved in a transaction is fraudulent involves factual determinations, including whether the statement was one of opinion or fact. Le v. Tralongo, LLC, Case No. 4D17-1325 (Fla. 4th DCA 2018). The contracting to perform and actual performance of extensive “back office” processes through technology may be sufficient to satisfy long-arm jurisdictional requirements. DeJesus v. A.M.J.R.K. Corp., Case No. 2D17- 2374 (Fla. 2d DCA 2018). Property owned by a corporation is not entitled to homestead exemption from forced levy, even if the person residing on the property is the president and owner of the corporation. Digital Realty Trust, Inc. v. Somers, Case No. 16–1276 (2018). Individuals who fail to report alleged securities violation to the Securities and Exchange Commission do not fall within the Dodd-Frank Act’s definition of “whistleblower” and thus are not protected by the Act’s anti-retaliation provisions. HSBC Bank USA v. Buset, Case No. 3D16-1383 (Fla. 3d DCA 2018). Experts, including those on “securitization” issues, may not testify on legal issues. Additionally, securing a note with a mortgage does not render the note a non-negotiable note under Article 3. Sabido v. The Bank Of New York Mellon, Case No. 4D16-2944 (Fla. 4th DCA 2018). Nationstar Mortgage LLC v. Glass, 219 So. 3d 896 (Fla. 4th DCA 2017), is broader than the issue of standing and holds that that a party that is not entitled to enforce a contract cannot b R'W&FVVBvFFR&ƖvF2VFW"FP6G&7B46&VbfVFW&F'FvvP766F66R$Cbsrf&BD4#Ff6Fw&VVVB27V&V7BFFP&W7BWfFV6R'VRBW7B&RG&GV6V@FWfFV6RF&fRG26FVG22&F766FbEE"266RTCb#rfWFD4#$4$$"%TUD#0Ɩ&2b$S6V6BfVVR266P4Cbf6BD4#7V'67&Fw&VVVG2&RB7V&V7BF6bWGVƗGGF62&V6W6RFW&PFffW&VBg&&F'&FW&6G&7G0vW&RR'G&֗6W2FW&f&7V6f07FF&V7FǒW6vRf"FRFW"'GW&f&֖rFW"7V6f27F&VfW"FRf7BFB&VW7FFRfVW2fV7GVFPvVW&ǒ7W'G2ƗVFFVBFvW0&f6266WBw&fR7V6F2b2d2fVGW&R66R4CrC3Bf6BD4#fW&RFRVG2FWr6W'f6W"WfVgFW"FRB6W'f6W"6VB( vF'PWGFW.( Gf6rFRB&VV6B2@7BbFVfVBvVFRWr6W'f6W"f0FFVǒGf6R'Fvv"vW&RF6V@VG2