[RPPTL LandTen] Proposed Foreclosure bill of interest

[harry at evict.com]

Please see attached

 

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From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Neil B. Shoter
Sent: Monday, November 16, 2009 1:50 PM
To: RPPTL Landlord Tenant Committee
Subject: [RPPTL LandTen] Recent Cases of Interest. See the supermarket
injunction case below. FW: Recent Opinions of Interest to Real Property
Litigators -- Week Ending November 13, 2009

 

Please see the attached cases which may be of interest

 

 

 

Neil B. Shoter 
Partner / LEED Accredited Professional  

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From: Epanchin, Michael A. 
Sent: Sunday, November 15, 2009 7:05 PM
To: DL Real Estate (RE); DL Real Property Lit (RP)
Cc: Coalson, Jennifer K.
Subject: Recent Opinions of Interest to Real Property Litigators -- Week
Ending November 13, 2009

I. Florida State Court Opinions -- Summarized by Michael Epanchin and David
Theyssen

Rescission: party seeking rescission under section 718.503(1)(a)(1), Florida
statutes, must provide objective evidence that a change to is both material
and adverse to him as purchaser

WCI Communities, Inc. v. Stafford, Case No. 2D07-3724 (Fla. 2d DCA November
13, 2009) (reverse and remand) Stafford contracted with WCI to buy a condo
unit, which included an obligation to pay certain costs, including
homeowners' association fees and assessments. The contract further stated
that the budgets are subject to change at any time. WCI provided Stafford
with a prospectus that listed what the specific expenses were, and some
months later furnished Stafford with changes to those expenses. The original
prospectus provided that the annual management company fee would be $120 per
unit, but the changes to the prospectus added a provision that stated that
the management company would receive either the $120 annual fee per unit or
a flat fee of $462 per month, whichever is greater, with no mention of the
$462 per month fee as being per unit. Stafford contacted WCI of his
intention to cancel the contract pursuant to Section 718.503(1)(a)(1),
arguing that the changes to the prospectus materially changed the deal
adverse to his position. Stafford moved for summary judgment, and WCI filed
no written response in opposition, simply arguing that the hearing should be
continued because it had not completed discovery. The trial court ordered
summary judgment for Stafford. The Court held on appeal, however, that
Stafford did not provide any evidence to establish, in an objective manner,
that the changes were either material or adverse to him, and reversed.

Condominium: statute retroactively contradicting mixed use condo project's
rules for electing members of board of directors unconstitutionally impairs
obligation of contract under Florida Constitution

Cohn v. The Grand Condominium Ass'n, Inc., Case No. 3D08-3051 (Fla. 3d DCA
November 12, 2009) (affirmed) Grand Condominium is a mixed use condo with
810 resident units, 141 retail units and 259 commercial units, comprising a
hotel, that was originally established in 1986. The articles of
incorporation provided that the board of directors would consist of seven
members, two of whom are elected by residential unit owners, 2 by commercial
unit owners, and 2 by retail unit owners. The six members would then elect a
seventh. The statute in Florida governing Mixed Use Condominiums, section
718.404, was enacted in 1995, and provided that if the number of residential
units in the condo equals or exceeds 50% of the total units, that the owners
of the residential units shall be entitled to vote for the majority of the
seats on the board. The statute was amended in 2007 to state that it shall
apply retroactively. Cohn, a residential unit owner, requested that the
voting arrangements be changed to give majority of board membership to the
residential unit owners. The Association filed a declaratory judgment,
seeking a declaration that the statute as applied is unconstitutional, as it
is an impairment of the obligation of contract under Article I, Section 10
of the Florida Constitution. The trial court granted summary judgment for
the Association The 3d DCA affirmed, holding that the 2007 retroactivity
amendment must be invalidated as an impairment of the obligation of
contract.

Foreclosure: bank not entitled to summary judgment when its motion does not
address the affirmative defenses of borrowers

Leal v. Deutsche Bank Nat'l Trust Co., Case No. 3D09-821 (Fla. 3d DCA
November 12, 2009) (affirmed in part, reversed in part) Deutsche Bank filed
a complaint to foreclose a mortgage and reestablish a lost promissory note.
After the case had been pending for two months, the borrowers secured
counsel who filed an answer and defenses. Deutsche filed for summary
judgment. The borrowers argued that the Bank failed to address the
borrowers' affirmative defenses and that discovery had been propounded on
the Bank which had not been answered. The trial court entered summary
judgment notwithstanding. However, the Court reversed, noting that the
Bank's motion failed to address the borrowers' affirmative defenses.

Leases: supermarket tenant entitled to temporary injunction enjoining
landlord from construction of bank building on parking lot across from
supermarket

Sacred Family Investments, Inc. v. Doral Supermarket, Inc., Case No.
08-50128, (Fla. 3d DCA October 14, 2009) (affirmed in part, reversed in
part, and remanded). The landlord began construction of a bank on a parking
lot across from the supermarket, despite a clause in the lease to the
supermarket stating that no other building may be built on the parking area
without tenant's written consent. After an evidentiary hearing, the trial
court granted a temporary injunction and required the landlord to return the
parking lot to its original condition. The landlord claimed that the tenant
was on notice and waived its right to object based on a site plan filed with
the City of Doral, a public hearing, and the City's approval of the plan,
and argued that the tenant waited two months to object after the
commencement of construction. The Court agreed with the trial court that the
tenant did not have knowledge of the public hearings. In addition, shortly
after learning of the construction project, the tenant advised the landlord
in writing of the provision in the lease. The Court also rejected the
landlord's equitable estoppel argument based on course of dealing, which was
centered on tenant's failing to object to landlord's use of the parking lot
for temporary uses such as the sale of Christmas trees. The Court did,
however, overturn the trial court's order requiring landlord to return the
lot to its original condition, pending a full hearing on the merits. 

II. Georgia State Court Opinions -- Summarized by Jenn Coalson

No opinions of interest this week.

III. 11th Circuit Federal Court Opinions -- Summarized by Dana Blunt

No opinions of interest this week.

IV. Other Title Insurance Related Opinions -- Summarized by Chris Smart and
Ilan Nieuchowicz

Antitrust: mere participation in land title associations insufficient to
support alleged conspiracy to set title insurance rates

In re California Title Ins. Antitrust Litigation, Case No. C 08-01341 JSW
(N.D. Cal. November 6, 2009) (granting defendants motion to dismiss
antitrust allegations with prejudice) Plaintiffs alleged that defendant
title insurers violated the Sherman Act and California's state antitrust
law, the Cartwright Act, by agreeing not to compete on rates in California
in order not to imperil the alleged conspiracy to fix title insurance prices
in New York, Pennsylvania, Ohio and New Jersey. Specifically, plaintiffs
alleged that by participating in the California Land Title Association and
American Land Title Association the defendants gave the defendants the
opportunity to conspire as to rates.  Employing the Twombly standard, the
District Court held that the allegations about defendants' "participation in
various rate setting organizations, their motive to conspire, and the
characteristics of the title insurance market" were insufficient to state a
cause of action. Mere participation in CLTA and ALTA without specific
allegations as to communications that could be "construed as invitations to
conspire or responsive actions" is insufficient to form the basis of an
alleged conspiracy. The District Court also noted that the plaintiffs
alleged a conspiracy arising in 2004 but facts they themselves alleged
showed that prices had remained stable since 1998.  The allegations
"regarding the rate setting organizations, the CLTA, and the ALTA, taken
together with the "plus factors" identified by plaintiffs thus do not "nudge
their claims across the lien from conceivable to plausible.""

 

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