State of Delaware Sues MERS
In a new twist, the State of Delaware is suing MERS under the Unlawful and Deceptive Trade Practices Act (UDTPA.) The suit claims that MERS has left for borrowers “no public trail by which anyone can identify the principals or verify the propriety of the (mortgage) transfer.” The private and obscure nature of their database makes it difficult for consumers “to know of or challenge inaccuracies in the MERS System” i.e. – who the heck holds the mortgage and who the heck has the right to foreclose? Read more at Delaware Online
Banks Pursue Deficiency Judgments
The American Bar Journal has a good article on banks going after borrowers for the shortages between mortgage dollars borrowed and what the homes can be sold for. Under the terms of mortgage notes, the borrower promises to repay the entire debt borrowed. But with so many houses under water, the lenders are losing money, and so they are are looking to the borrowers for the difference. Forty-one states in the US allow this. So we need to watch name searches for deficiency judgments. But will this just force more people into bankruptcy – or will they really recoup some money?
FNMA Mae has specific rules pertaining to the right to file deficiency judgments. Will they follow up?
Commercial Title Searches Have Many Caveats
In preparing a zoning report for a proposed ethanol plant, Chicago Title apparently missed the names of several nearby homeowners, who were therefore not served with legal notice of the planned construction. As the construction became more imminent, neighbors found out and quashed the transaction, causing Chicago Title a $48.4 million loss. See more details at Ethanol Producers magazine.
CLAYTON, Mo. (CN) – A St. Louis County jury awarded $48.4 million to an ethanol company against a title company that failed to notify property owners near a site where the ethanol company wanted to build a plant near Wichita. The award, after a 2-week trial, is the largest ever in St. Louis County Court.
Abengoa Bioenergy wanted to build a plant in Colwich, Kan. Chicago Title was supposed to notify nearby property owners in order to obtain zoning to build it, but seven property owners were left off the notification list.
After zoning was granted, the property owners found out and sued in 2008. Abengoa was forced to build a more expensive, less profitable plant in Granite City, which was finished 15 months after the first plant was supposed to be completed.
The award includes the higher cost of building the plant in Granite City, the cost of the 15-month delay and the lower revenue from the plant.
John L. Davidson, Esq.
13975 Manchester, Suite 19
Saint Louis, Missouri 63011
State Takes up Question of Mortgage Inspection Reports
The Oklahoma State Board of Licensing for Professional Engineers and Land Surveyors is considering a position statement. The Board has been reviewing ways to alleviate the public misunderstanding and misuse of Mortgage Inspection Reports. The problem originates with homeowners who receive copies of these reports at closing and then rely on them to build improvements (even though there is disclaiming language on the drawing itself.) The report appears to mislead homeowners into thinking they can rely on the information shown thereon. Read more on this at The American Surveyor
Condo and Garage Stall Woes
For those who took the abstracting class May 2-3, here is a classic example that hit my email inbox today. It shows what can happen when legal descriptions intended for sale in a condominium are not carefully described. At the abstractor class we talked about garage stalls and storage spaces in particular, being separately salable units or appurtenances, depending on how they are described in the Declaration and Floor plans. Seems to me the Purchase Agreement in the scenario below was the problem. Maybe the two parking spaces were on the street…? After all, we are not mind readers, how are we supposed to know WHAT you bought if you don’t tell us….
Client purchased a condo unit and (he thought) two parking spaces from the developer. The accepted offer to purchase described the condo unit by number, but referred to the two parking spaces without specific designation. A title company prepared the deed of conveyance describing the unit by number, but omitting any reference to parking. The condo declaration provides that parking spaces are “units” rather than limited common elements, and can be separately conveyed as such. The title company acted as closing agent. What duty does the title company owe to the buyer in this case? Is the buyer entitled to rely on the closing agent to prepare a deed which conveys all of the property described by the purchase contract? Unfortunately for my client, he was not represented by counsel, did not notice any discrepancy in the deed, and has no recourse against the seller who went bankrupt. To further complicate matters, the two parking spaces were subsequently sold by an investor who purchased the unsold units out of receivership to an innocent third party. Any suggestions?
Abstractors – Our Business Has Changed
Certainly the title insurance and abstracting business has changed. The good old-fashioned in-depth abstracting that was required for “marketable title” is disappearing, and at least for residential properties, it has been replaced with a one or two-owner search that is used to provide “insurable title.” Insurable title being a risk-underwriting product, as opposed to the old “fix-the-problem-so-there-ARE-no-claims” product. But, as I have mentioned before, the core business for the best abstractors is not to chase the $35 residential sales, but the more intricate in-depth work that still exists for: commercial work; cell towers; wind farms; mineral titles; gas and oil rights, etc. I am often asked where to find these professionals, and the major underwriters are now developing “specialty teams” that they fly around the country to do such work. But that is a concern, because we all know that title searching is a VERY specialized, VERY localized occupation, and that no one from outside the area can catch those all important nuances that make a title good or not.
Are you staying current with all the changes in titles in your state? Changes have been rampant the last few years, new liens, mortgage rules due to the need for new tax revenue and the mortgage debacle. Are you advertising your professional expertise? Are you taking advantage of the changing market? I hope so, it could mean like or death for your job and your industry.
Expert Abstractors and Title Examiners Needed
I have had three contacts in the last couple of weeks where friends in the industry have reached out to find competent title abstractors and examiners. In one case it was searches for cell towers in Michigan, in another an expert witness for a complicated title indexing issue, and the third for a company that can’t find experienced, competent people for complex searches. They were looking at sending a team of “professionals” all over the country for those difficult searches that require serious expertise. Why is it that we are all fighting for $25 searches for the simple ones, when others, willing to pay can’t find experienced people. Think about that. Maybe we need to change our focus.
Specialty Land Title Searches – Minerals
Real Estate titles are complex and very state specific. Underwriters have seasoned veterans who are in charge of underwriting for each respective state. Take for example
Tarrant County Texas:
Remember Jed Clampett? The “poor mountaineer barely kept his family fed. Then one day when shootin’ at a brood, up through the ground came a bubblin’ crude – oil that is, Texas tea…”
Do you own mineral rights to your land? That question may be crucial for people buying or selling land in Tarrant County, TX near the Barnett Shale gas field. It might be hard for most people to answer under new rules proposed by the Texas Insurance Department.
Mineral Rights can have tremendous value. In most states, insuring title to the land includes insuring the surface, subsurface (mineral rights) and air rights. Perhaps not so in Texas. Recently, title companies have quit insuring mineral rights on properties. The change has incensed some lawyers and left landowners in limbo if they own mineral rights. Do you know how to search mineral rights?
How Much do You Know About Land Titles?
The business of abstracting is changing. I have been teaching title searching for years, but it’s different now. Residential abstracting has gone by the wayside in favor of one-owner and two-owner searches. Title Insurance companies do not abstract and do “risk underwriting,” nor do they “cure titles.” They just insure over problems. That has worked in the past, but as has been said -”How’s that workin’ for ya now?
But the best, most qualified abstractors are busy with new lines of work: Oil and Gas Lease titles, Cell Towers, Commercial Property Titles and Wind Farms. These are now the day-to-day jobs of those abstract experts who are truly experienced in land titles and know how to search titles in depth. Here is an article on one such instance, a county recorder who has to limit the number of title abstractors because of the volume of work in Oil and Gas Leases. How much do YOU really know about abstracting titles? Is it time to bone up? Do you need more business?
Read More at the Post-Gazette.
ALTA REVISED SURVEY STANDARDS TAKE EFFECT FEB. 23, 2011
New Survey Standards have been approved by the American Land Title Association (ALTA) and the National Society of Professional Surveyors (NSPS.) The purpose of the Minimum Standards is to set nationally recognized uniform standards for land surveys and to assist title insurance companies, surveyors and lenders to use nationally recognized uniform standards to assist title insurance companies, surveyors and lenders.
The new standards discourage the drafting of new legal descriptions and also require:
• a reference to any title commitment be included on the face of the survey
• a vicinity map
• more detailed information regarding easements and right-of-way lines
• use of a standard certification.
See more at ALTA.org
Home Closing 101: An Educational Initiative of the American Land Title Association
