PBCBA BAR BULLETINS PBCBA_october2017.finalB - Page 24

REAL ESTATE Corner

REAL ESTATE Corner

Florida Real Property and Business Litigation Report

Dabas v . Boston Investors Group , Inc ., No . 3D16-2672 ( Fla . 3d

DCA 2017 ). The difference between void and voidable is important for purposes of Florida Rule of Civil Procedure 1.540 ( b ) ( 4 ); a judgment is void only if the trial court lacked subject matter jurisdiction , the trial court lacked personal jurisdiction over the person , or the trial court permitted a violation of the due process guarantee of notice and opportunity to be heard .
MANNY FARACH
Platinum Luxury Auctions , LLC v . Concierge Auctions , LLC , Case No . 3D16-1958 ( Fla . 3d DCA 2017 ). A settlement agreement with a confidentiality and non-disparagement provision does not require the removal from a website those disparaging remarks existing on the website both before and after the parties enteed into the settlement agreement .
National Collegiate Student Loan Trust 2007-1 v . Lipari , Case No . 5D16-156 ( Fla . 5th DCA 2017 ). The giving of notice of assignment under Florida Statute section 559.715 is not a condition precedent to filing suit for collection of a student loan when the assignee takes all rights in the consumer debt .
Provitola v . Comer , Case No . 5D16-3027 ( Fla . 5th DCA 2017 ). The obstruction of a public street is a public nuisance and individuals cannot maintain an action for the obstruction unless they have suffered a special injury .
FF Cosmetics FL , Inc . v . City of Miami Beach , Case Nos . 15-14394 & 15-15256 ( 11th Cir . 2017 ). The commercial First Amendment rights of retailers to distribute handbills and solicit business on public sidewalks outweighs the interests of municipality in aesthetics and order .
Schweitzer v . Comenity Bank , Case No . 16-10498 ( 11th Cir . 2017 ). The Telephone Consumer Protection Act , 47 U . S . C . § 227 et seq ., allows for the partial revocation of consent to be called by an automatic telephone dialing system .
Whitney Bank v . Grant , Case No . 1D16-5112 ( Fla . 1st DCA 2017 ). The five-year statute of limitations period in Florida Statute section 95.11 ( 2 )( b ), and not the one-year statute of limitations of Florida Statute section 95.11 ( 5 )( h ), applies in actions for deficiency proceedings arising out short sales ( as opposed to deficiency actions arising out of a foreclosure sale ).
Emerald Coast Utilities v . Bear Marcus Pointe , LLC , Case No . 1D15- 5714 ( Fla . 1st DCA 2017 ). There is no “ excusable neglect ” to permit the filing of belated appeal when the error to timely see the final judgment email is due to the law firm ’ s computer system not being correctly configured to receive and store emails .
The Bank of New York Mellon v . Simpson , Case No . 3D16-2445 ( Fla . 3d DCA 2017 ). Generalized allegations of fraud in an industry without specific allegations of fraud in the case at bar are not sufficient to support a Florida Rule of Civil Procedure 1.540 motion for relief based on fraud of a party .
Bivens v . Bank of America , N . A ., Case No . 16-15119 ( 11th Cir . 2017 ). Failing to timely respond to a borrower ’ s Qualified Written Request (“ QWR ”) under 12 U . S . C . § 2605 ( e ) is not a violation of the Real Estate Settlement Procedures Act , 12 U . S . C . 2601 et seq ., if the borrower sends his QWR to an address other than the one the servicer designates to receive QWRs .
New Day Miami , LLC v . Beach Developers , LLC , Case No . 3D17-1071 ( Fla . 3d DCA 2017 ). An order on a Florida Rule of Civil Procedure 1.540 motion may be an appealable final order , but a motion for rehearing directed to the order does not toll appellate time periods due to Florida Rule of Appellate Procedure 9.130 ( a )( 5 ) which holds that “[ m ] otions for rehearing directed to these orders will not toll the time for filing a notice of appeal .”
Pedro v . Equifax , Inc ., Case No . 16-13404 ( 11th Cir . 2017 ). It is not objectively unreasonable for a credit reporting agency to interpret section 1681e ( b ) of the Fair Credit Reporting Act , 15 U . S . C . § 1681 et seq ., to permit reporting an account for which a consumer is an authorized user .
DNJS Holdings v . Pet Doctors Operating , LLC , Case No . 1D16-5859 ( Fla . 1st DCA 2017 ). Certiorari may be granted to compel discovery when not giving discovery would eviscerate the petitioning party ’ s trial court case .
Omes v . Ultra Enterprises , Inc ., Case No . 3D16-338 ( Fla . 3d DCA 2017 ). A shareholder loses all rights as a shareholder pursuant to Florida Statute section 607.1323 ( 1 ) and is only entitled to the value of their shares once the shareholder deposits their certificates , or in the case of uncertificated shares , returns the executed forms .
Garcia v . Christiana Trust , Case No . 3D16-735 ( Fla . 3d DCA 2017 ). A general reservation of jurisdiction in a final judgment typically reserves jurisdiction for deficiency judgments only ; retention of jurisdiction for other reasons must be specifically reserved .
Law Offices of Herssein and Herssein , P . A . v . United Services Automobile Association , Case No . 3D17-1421 ( Fla . 3d DCA 2017 ). A “ Facebook friendship ” between a judge and a lawyer does not signify a true friendship , and is not , without more , sufficient to disqualify the judge from pending case where the Facebook friend is one of the lawyers .
Llano Financing Group , LLC v . Yespy , Case No . 4D16-2007 ( Fla . 4th DCA 2017 ). Assignment of a note and mortgage does not automatically assign third party negligence claims arising out of the note and mortgage .
Victorville West Limited Partnership v . The Inverrary Association , Inc ., Case No . 4D16-2266 ( Fla . 4th DCA 2017 ). A restrictive covenant will be enforced despite changed conditions if the restriction was for the benefit of and continues to benefit the dominant estate .
PBCBA BAR BULLETIN 24