Florida Real Property and Business Law Update
Real Property and Business Litigation Report – Vol. VIII, Issue 40
Cases of interest this week include:
Jones v. Golden, — So.3d —-, 2015 WL 5727788 (Fla. 2015).
The claim of a known (or reasonably known) creditor – which creditor is not served with a notice to creditors – is not barred notwithstanding creditor filed its claim more than three months after publication of the opening of the estate. However, the claim must be filed within two years after publication under all circumstances otherwise it is barred.
Thomas v. Clean Energy Coastal Corridor, — So.3d —-, 2015 WL 5727810 (Fla. 2015).
A municipal bond may not provide for judicial foreclosure of unpaid assessments, i.e., the bond may not contain a method of collecting assessments other than the process set forth in Florida Statutes Chapter 197 of collecting tax liens.
YHT & Associates, Inc. v. Nationstar Mortg. LLC, — So.3d —-, 2015 WL 5710054 (Fla. 2d DCA 2015).
A non-party in the trial court proceedings cannot appeal a judgment, even if the non-party is the property owner which purchased the property after the lis pendens was filed.
Wells Fargo Bank, N.A. v. Palm Beach Mall, LLC, — So.3d —-, 2015 WL 5712341 (Fla. 4th DCA 2015).
Applying New York law, the Fourth District holds that a guarantee operative only when the mortgagor engages in “gross negligence or willful misconduct” requires a “deliberate act beyond a party merely acting out of its economic self-interest,” and that an intentional non-payment of the mortgage or the “de-leasing” (e.g., seeking short-term “Mom and Pop” stores instead of long-term credit-worthy tenants) is not sufficient to call into operation the guarantee. Moreover, New York law defines “insolvency” as inability to make payments when due and not “equity-insolvency” of the property.
Hendrix v. Department Stores Nat. Bank, — So.3d —-, 2015 WL 5712480 (Fla. 4th DCA 2015).
A pro se party who has filed a paper but who has not otherwise complied with a court order to file an answer is entitled to a hearing on movant’s motion for default.
Access Ins. Planners, Inc. v. Gee, — So.3d —-, 2015 WL 5712568 (Fla. 4th DCA 2015).
An agreement to pay commissions at different times in the future is a divisible contract subject to a separate breach with a separate statute of limitations for each payment.
Teitelbaum v. South Florida Water Management Dist., — So.3d —-, 2015 WL 3875464 (Fla. 3d DCA 2015).
“Condemnation blight” is not a taking and is relevant to the valuation of property that has already been taken but not to de facto takings claims; any diminution in value due to condemnation blight is awarded at the time of the actual taking.