New York Court Finds “Occasional Forays” by True Owner is Insufficient to Defeat Adverse Possession Claim

The New York Supreme Court, Nassau County, recently dismissed a motion to quiet title, finding that “occasional forays” by a true owner is insufficient to defeat the exclusivity element of an adverse possession claim where the adverse possessor has alone cared for or improved the  property as if it were their own. See Strenger v. Gellman, 609487/2020 (N.Y. Sup. Ct. Feb. 2, 2021).

Arizona Appellate Court Holds Insured May Settle a Third-Party Claim When Insurer Defends Under a Reservation of Rights

The Court of Appeals for Arizona, Division 1, recently held that in the title insurance context, when an insurer agrees to defend its insured against a third party but reserves the right to challenge coverage, the insured may independently settle with the third-party claimant without violating the insured’s duty of cooperation under the insurance contract. Fid. Nat'l Title Ins. Co. v. Osborn III Partners LLC, 483 P.3d 237 (Ariz. Ct. App. 2021). 

'Deely' Expands Lender's Use of Equitable Subrogation to Protect Priority Status

All practitioners involved in New Jersey real estate litigation need to be aware of the Appellate Division decision in Tr. 2005-3 Mortg.-Backed Notes, U.S. Bank Nat’l Ass’n as Tr. v. Deely, 2021 WL 520063 (App. Div. 2021), which expands the situations in which a lender can use the doctrine of equitable subrogation to protect the priority status of a lien by holding that a lender’s knowledge of a prior competing lien does not bar the application of the doctrine.

California Appellate Court Affirms Lack of Constructive Knowledge Required for Protection Under Quiet Title Act

The Court of Appeal of California, Second Appellate District, Division Two, recently upheld a trial court’s finding that a later purchaser or encumbrancer for value seeking protection under the Quiet Title Act from the invalidation of an earlier quiet title judgment may only do so if it lacked constructive knowledge of some “defects or irregularities in [the earlier quiet title] judgment or proceedings” at the time it obtained its interest in the property. Tsasu LLC v. U.S. Bank Tr., N.A., 2021 WL 1220171 (Cal. Ct. App. Apr. 1, 2021).

Georgia Federal Court Grants Title Insurer’s Motion to Dismiss Breach of Contract and Conversion Claims

The United States District Court for the Northern District of Georgia recently granted a title insurance company’s motion to dismiss claims for breach of contract and conversion, finding that: (1) the closing protection letter at issue was not in effect at the time of the closing due to a subsequently-issued letter; and (2) the lender’s conversion claim was precluded under Georgia law.  See First IC Bank v. N. Am. Title Ins. Co., 2021 WL 732354 (N.D. Ga. Jan. 21, 2021).

New York Federal Court Grants Bank’s Motion to Compel Arbitration in PPP Class Action

On April 8, 2021, the United States District Court for the Southern District of New York granted a national bank’s motion to compel arbitration in a Paycheck Protection Program ("PPP") class action, finding that the issue of arbitrability must be decided by an arbitrator pursuant to the terms of the bank’s Deposit Account Agreement and Online Service Agreement. See KPA Promotion & Awards, Inc. et al v. JPMorgan Chase & Co. et al, 2021 WL 1317163 (S.D.N.Y. Apr. 8, 2021).

Third Circuit Affirms Itemization of Interest and Fees on “Static” Debt Collection Letter Does Not Violate FDCPA

The United States Court of Appeals for the Third Circuit recently affirmed a District Court’s finding that a debt collection letter that itemizes a “static” debt as including “$0.00” in interest and fees, despite the fact that the debt cannot accrue interest and fees, does not violate the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”).  See Hopkins v. Collecto, Inc., 2021 WL 1345203 (3d Cir. Apr. 12, 2021).

New York Court Denies Summary Judgment in Action to Enforce a Restrictive Covenant

The New York Supreme Court, Kings County, recently denied a property owner’s motion for summary judgment, holding that there were issues of fact as to whether a restrictive covenant applied to the property at issue. See Fenimore Civic Block Ass’n Inc. v. 1919 Bedford Realty LLC, (N.Y. Sup. Ct. Mar 31, 2021). In the case, Defendant purchased a corner lot (the “Property”) with the intent of constructing three four-story apartment buildings thereon.

New York Court Expands Borrower’s Entitlement to Legal Fees After Foreclosure Action Successfully Defended

The New York Supreme Court, New York County, recently held that a borrower on a mortgage is entitled to recover reasonable legal fees pursuant to Real Property Law § 282(a) so long as a successful defense to foreclosure is asserted, even where it is undisputed that the borrower failed to make their monthly mortgage payments. NRZ Pass-Through Trust IV v. Rouge, 2021 WL 465982 (N.Y. Sup. Ct. Feb. 9, 2021).