In a case of first impression, the Connecticut Supreme Court recently held that that (1) an entity claiming “arm of the tribe” status for purposes of tribal sovereign immunity bears the burden of proving entitlement to that status; and (2) tribal immunity extends to an officer of the entity, so long as the officer acted within the scope of his or her authority and the tribe, rather than the individual officer, is the real party in interest. See Great Plains Lending, LLC v. Dep’t of Banking, 2021 WL 2021823 (Conn. May 20, 2021).
In a case of first impression with Constitutional implications, the Second Circuit found that a mortgagor had standing to sue under Article III of the Constitution in Federal Court for a lender’s violation of a state mortgage satisfaction statute. Maddox v. Bank of New York Mellon Tr. Co., N.A., 2021 WL 1846308 (2d Cir. May 10, 2021).
In a decision approved for publication, New Jersey’s Appellate Division recently affirmed the dismissal of an enforcement action against an issuer of a dishonored check, finding that the lack of endorsement on the electronically deposited check did not prevent the valid transfer and negotiation of the check. See Triffin v. SHS Grp., LLC, 466 N.J. Super. 460 (App. Div. 2021).
The Court of Appeals of Washington, Division Two, recently held that the release of a lis pendens is not effective until it is recorded. Furthermore, it held that where there is a recorded lis pendens on a property on the day it is sold, the purchaser of that property cannot claim to be a bona fide purchaser for value even where the release of that lis pendens was effectuated the day prior. See Guardado v. Taylor, et al., 2021 WL 1985442 (Wash. Ct. App. May 18, 2021).
The United States District Court, Eastern District of New York, recently found that where a credit union is able to show “compelling circumstantial evidence” that it sent an Arbitration Agreement to one of its members, such mailing is sufficient to constitute “an agreement to arbitrate” under the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, even where the member alleges that she did not receive the mailing. Filipkowski v. Bethpage Fed. Credit Union, 2021 WL 826016 (E.D.N.Y. Mar. 4, 2021).
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).
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).
The United States District Court for the Northern District of New York recently granted a bank’s motion to dismiss, holding that the bank had no duty to reverse a non-customer’s payment order or freeze a customer’s account in which fraudulent funds were deposited. Pedersen v. MidFirst Bank, 2021 WL 1062591 (N.D.N.Y. Mar. 19, 2021).
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.
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).
