Some mortgage foreclosure rules

Although a mortgagee may properly, upon default by the mortgagor, elect to accelerate, Florida courts have consistently noted that acceleration will be denied where the default is merely technical or where the overall equities of a particular case warrant denial. La Boutique of Beauty Acad. v. Meloy, 436 So. 2d 396 (Fla. 2d DCA 1983) (judgment was affirmed in appeal by mortgagee from order granting summary judgment to appellees, mortgagors, in an action to foreclose on a mortgage. The court concluded it would be unconscionable to allow acceleration and appellant, mortgagee, was estopped from exercising its acceleration rights upon default because appellant had not done so after prior defaults.); Jones, 870 So. 2d at 52 (similar); Pearson v. Arthur, 248 So. 2d 227 (Fla. 3d DCA 1971) (Under the maxim that equity will enjoin the unconscionable exercise of a legal right, the right of a mortgagee to exercise an agreement to accelerate the unpaid indebtedness upon a default may be denied by the court when an acceleration of the due date of the debt would be an inequitable or unjust result and the circumstances would render the acceleration unconscionable.).
In Jones v. City of Winter Haven, 870 So. 2d 52 (Fla. 2d DCA 2003), for example, the owner bought real property from a financial corporation. The property had previously been found to be in violation of the city's ordinances and the corporation had been ordered to bring the property into compliance, subject to daily fines. The owner's agent was allegedly assured that a reduction in fines could have been petitioned for after the property was brought into compliance. In reliance on the representations, the owner improved the property. Two orders imposing fines on the property were recorded and a lien was created by operation of law. The city sued the owner to foreclose on the lien and the owner raised two affirmative defenses, one of which was estoppel. The city was granted summary judgment. On appeal, the Second District held that the final summary judgment was improper because genuine issues of material fact existed concerning the issues alleged in the affirmative defenses. As the city did not conclusively refute the estoppel defense, final summary judgment was improper.
Likewise, in Knight Energy Servs., 660 So. 2d at 788, a major supplier of motor fuel loaned a sum of money to some established petroleum franchises operating branded retail stations. When a dispute arose between the parties, they reached an agreement in which the parties executed notes and mortgages on some of appellant's service stations to secure repayment. The service station operators failed to make payments in accordance with the settlement, and appellee filed a foreclosure action. The service station operators asserted affirmative defenses that included unclean hands and estoppel. The trial court granted appellee's motion for summary judgment. On appeal, the Fourth District Court of Appeal determined that the affirmative defenses were legally sufficient to preclude a final summary judgment of foreclosure, reversed, and held that, because the appellee failed to factually refute the allegations, a genuine issue of material fact existed the precluding the entry of the judgment. Knight Energy Servs., 660 So. 2d at 788-89.
Likewise, in Marin v. Seven of Five, Ltd., 921 So. 2d 699 (Fla. 4th DCA 2006), the borrowers claimed that the mortgagee, who was also the builder of their residence, breached it warranty to repair any defects by failing to repair damage caused by water intrusion around the home's windows. In addition, the borrowers claimed that the mortgagee's partner initially agreed to a new financing arrangement, but then failed to honor his commitment. The Fourth District held that the allegations concerning the new financing arrangement were legally sufficient to support both the unclean hands and promissory estoppel defenses and, because the mortgagee failed to present any evidence refuting the alleged factual predicate of the defenses, the trial court erred in granting summary judgment.

Explanation of benefits, valid medical reports and spicey cornbread

Insurance -- Personal injury protection -- Explanation of benefits -- Circuit court appellate division departed from essential requirements of law in affirming county court judgment finding that an insured has a private cause of action against a PIP insurer who fails to provide its insured an itemized specification of each item the insurer has reduced, omitted, or declined to pay within 30 days after the insurer is furnished written notice of the fact of a covered loss and the amount -- There is neither a requirement nor a deadline for a PIP insurer to respond to a request for payment -- A response is required from the insurer only when insurer either pays a portion of a claim or rejects a claim -- Insured has no private right of action against insurer for insurer's failure to provide an explanation of benefits to insured or insured's assignee in timely manner -- Appeals -- Case falls within limited category of cases in which district court is authorized to exercise discretion to review a circuit court appellate division per curiam affirmance of county court order or judgment
Reported at 34 Fla. L. Weekly D2268a

United Auto. Ins. Co. v. Santa Fe Medical Center ,(Fla.App. 3 Dist.)
Insurance - Insurer was not required to obtain valid medical report before denying a PIP claim.
The Florida District Court of Appeal has held that the subsection of the personal injury protection (PIP) statute providing that an insurer may not withdraw payment without the consent of the injured person, unless the insurer first obtains a valid report by another physician that the treatment was not reasonable, related, or necessary, does not require the insurer to obtain a valid medical report to deny payment of a PIP claim. Rather, this statute only requires that a valid report be obtained when further PIP benefits are withdrawn without the consent of the injured person. In so holding, the District Court of Appeal receded from United Auto. Ins. Co. v. Bermudez, to the extent that decision suggested that the medical report requirement applied to the denial of PIP benefits.

This decision may not yet be released for publication.

Insurance -- Coverage -- Waiver and estoppel -- Questions certified to Georgia Supreme Court: 1) Does an insurer effectively reserve its right to deny coverage if it informs the insured that it does “not see coverage,” after the insured had received a written reservation of rights from the insurer's sister company in a similar lawsuit in another jurisdiction, or is a written or more unequivocal reservation of rights required? 2) When an insurer assumes and conducts an initial defense without notifying the insured that it is doing so with a reservation of rights, is the insurer estopped from asserting the defense of noncoverage only if the insured can show prejudice, or is prejudice conclusively presumed? 3) If the insured must show prejudice, do the facts and circumstances of this case show it?
Reported at 22 Fla. L. Weekly Fed. C233a

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