Federal Deposit Insurance v. Floridian Title Group Inc.
972 F. Supp. 2d 1289
S.D. Fla.2013Background
- FDIC, as receiver for closed BankUnited, sued Floridian Title (closing agent) over five mortgage closings (Gustavo, Dario, Berstein, Gamburg, Carrazco) alleging false HUD-1s, undisclosed non‑arm’s‑length/familial relationships, and improper handling of "cash to close."
- Undisputed record facts: Floridian’s officers (Grisales, Pardo) prepared/signed HUD‑1s, certified them "true and accurate," and knew of familial/business ties among buyers/sellers (Perchik family, related sellers); several HUD‑1 reported borrower cash that evidence indicates was not actually received as stated.
- BankUnited’s Closing Instructions required HUD‑1 accuracy and forbidden secondary financing, unauthorized credits, and cash back to borrowers; Floridian certified compliance at each closing.
- FDIC retained claims against third‑party purchaser under the Purchase & Assumption agreement (Section 3.5), so FDIC proceeded as plaintiff; Floridian moved for summary judgment.
- Magistrate recommended denying summary judgment; District Court reviewed de novo, adopted the R&R, and denied Floridian’s motion across contract, fiduciary‑duty, and negligent‑misrepresentation claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue (FDIC) | P&A §3.5 retained claims for FDIC so it has standing | FDIC sold loans to third party and thus lacks standing | Held for FDIC — §3.5 shows FDIC retained claims; standing exists |
| Breach of contract (Closing Instructions / HUD‑1) | Floridian breached by certifying false HUD‑1s and failing to disclose non‑arm’s‑length/secondary financing, causing loans FDIC wouldn’t have made | No breach: failing to collect a deposit isn’t a listed violation; any breach caused no recoverable damages | Held for FDIC on summary judgment standard — genuine issues of material fact exist as to HUD‑1 falsity, non‑arm’s‑length transactions, and damages; summary judgment denied |
| Breach of fiduciary duty (closing agent duties) | As BankUnited’s closing agent Floridian owed fiduciary/agency duties to disclose material facts (e.g., non‑arm’s‑length ties) and breached them | No fiduciary duty beyond contract terms; any tort claims are duplicative of contract | Held for FDIC — agency relationship undisputed and fact issues exist as to nondisclosure; summary judgment denied |
| Negligent misrepresentation | Floridian made (or failed to correct) material misrepresentations on HUD‑1s and concealed non‑arm’s‑length status; FDIC justifiably relied | FDIC could have discovered facts itself; reliance not justifiable; no actionable misrepresentation | Held for FDIC — factual disputes on misrepresentations and justifiable reliance preclude summary judgment |
Key Cases Cited
- Adickes v. S.H. Kress & Co., 398 U.S. 144 (summary judgment standard requires movant to show absence of genuine issue of material fact)
- Celotex Corp. v. Catrett, 477 U.S. 317 (party moving for summary judgment bears initial burden; nonmovant must show material facts for trial)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (court must draw all reasonable inferences for nonmoving party)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (nonmovant must present more than a scintilla of evidence)
- Beck v. Lazard Freres & Co., 175 F.3d 913 (elements of breach of contract)
- Leahy v. Batmasian, 960 So.2d 14 (Fla. Dist. Ct. App.) (breach of contract elements under Florida law)
- Tiara Condominium Ass’n, Inc. v. Marsh & McLennan Cos., 110 So.3d 399 (Fla.) (economic loss rule limited to products‑liability context)
- Action Nissan, Inc. v. Hyundai Motor Am., 617 F.Supp.2d 1177 (M.D. Fla.) (damages generally are jury question where plaintiff presents evidence of injury)