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).
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).
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).
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).