Closings

Who is Responsible for Who Gets Paid?

Whos on FirstWho to pay?  It starts to feel a little like “Who’s on first, What’s on second and I-don’t-know is on third” when we start to look at complicated mortgage transactions these days. We have mortgages, deeds of trust, lenders, assignees, beneficiaries, lender’s servicing agents, trustees, securities, exchange securities, and more.  

Here, as happens, title companies are charged with collusion in a complicated Ponzi scheme. I question how we legitimately know who should be paid in some of these complicated transactions.  Should the check for a payoff go to the Lender holding the Mortgage or to the Servicing Agent, in hopes it will be properly credited? Did the title company know the scheme?

From Lexology Title Insurance Article by Carlton Fields, an interesting read:

Escrow Agent: Where payments are disbursed to lender’s servicer and escrow agent has not knowledge of servicer’s scheme to defraud lender, lender fails to state a cause of action against escrow agent — Fazeli v. Williamson, No. H036951 (Cal. App. March 27, 2014) (affirming escrow agents’ objections)

ALTA Comments on CFPB Report on Consumer Experiences at Closing

Press Release

Our members strongly support efforts to identify and alleviate the pain points consumers have experienced during the home closing process,” said Michelle Korsmo, ALTA’s chief executive officer. “While we are focused on technology and the ability for us to receive, sign and return, and retain electronic documents, we cannot lose sight of the importance of personal interaction during the closing process. At the end of the day, consumers are not buying a home from a computer.”The American Land Title Association (ALTA), the national trade association of the land title industry, released the following statement today from CEO Michelle Korsmo in response to the Consumer Financial Protection Bureau’s report on consumer experience during the mortgage closing process:

“Improving the closing the process through technology by providing electronic documents to the homebuyer will help give the consumer more to time to digest the information about their purchase prior to the closing. We agree with the CFPB that any implementation of new technology in the home closing process should not reduce opportunities for consumers to ask information or replace the ceremony of the closing process which indicates the importance of the transaction. Based on our members’ unique vantage point working with all the parties at the closing table, the Bureau should not only focus on technological innovations but also on improving consumer education about the closing process. The new integrated mortgage disclosure forms that the CFPB developed and will be implemented in August 2015 will help ensure the personal interaction and explanation remains part of the closing experience for consumers.”

“We look forward to continuing to work on this important initiative with Director Cordray and staff at the CFPB on this important consumer initiative.”

MN Dept Commerce Takes Action against Embezzeling Closer

Used with Permission of Robert Franco, Source of Title
The Minnesota Department of Commerce has summarily suspended the real estate closing license, resident insurance producer license and Notary Public commission of Kuntee Singramdoo and charged her with embezzling over $230,000 in real estate closing proceeds and using the money to pay off her own creditors or her family members’ creditors.

Singramdoo, a resident of Lakeville, was an independent closer hired by Walsh Title & Real Estate Services, where she provided real estate closing services, sold title insurance policies and notarized real estate documents. The Commerce Department complaint alleges that Singramdoo engaged in a pattern of misappropriating, converting and/or embezzling settlement proceeds by issuing Walsh Title checks for her own benefit or for the benefit of her family members.

The alleged embezzlement includes at least 184 checks issued between February 2004 and June 2007 to 24 different creditors including $68,109 to U.S. Bank, $48,863 to Wells Fargo, $800 to JC Penney, $4,764 to Macy’s, $6,286 to Goodman Jewelers, $800 to Bloomingdale’s, $6,866 to Honda, $2,734 to American Express and $2,323 to Discover.

Singramdoo admitted under questioning from Commerce Department investigators that she embezzled the funds but at this time has only paid back $10,000 to Walsh Title.

Singramdoo accomplished the embezzlement by entering her own creditors on the HUD-1 mortgage loan form as if the debts belonged to the buyer or seller and subsequently issued checks directly to the creditors in her name. She also changed HUD-1 mortgage loan documents after closings to reflect the fraudulent payments.

“This brazen embezzlement scheme is a warning to everyone to pay close attention to the loan documents you are signing during the closing of a mortgage,” said Glenn Wilson, the commissioner of Minnesota’s Department of Commerce.

REO Lender May Not Require Purchase of Title Insurance from Any Particular Provider

Sale of foreclosed properties, often referred to as “Real Estate Owned” or REO transactions, are NOT exempt from RESPA requirements. The lender that has foreclosed, acting as the seller, is still subject to the law stating:No seller can require that the buyer purchase title insurance from any particular title insurance company. This rule pertains to transactions involving a federally-related mortgage loan for one-to-four residential units” as defined under the Real Estate Settlement Procedures Act (12 U.S.C. section 2608). Although this is a well-established rule, it is worth a reminder, given the upsurge in foreclosure sales.
An REO lender that violates this requirement can be held liable to the buyer in the amount equal to three times all charges made for title insurance. Anyone who believes that RESPA has been violated may file a complaint with HUD. For more in depth information about RESPA complaints, go to this HUD Link

FNF 3rd Qtr Earnings Report gives Picture of Title Insurance Industry

The third quarter transcript of Fidelity National Financial, Inc. (FNF) gave us a clear picture into what is happening with all Title Insurance Underwriters.  To give you an overview of what is happening at FNF, here is a recap.  The entire transcript can be found at http://seekingalpha.com/article/101536-fidelity-national-financial-inc-q3-2008-earnings-call-transcript?page=1

Regarding expense reductions

  • FNF eliminated 1000 positions in the third quarter (800 frontline staff and 200 agency and corporate positions) 
  • It instituted a 10% company-wide pay reduction, most likely to be continued through the first quarter of 2009
  • It is asking board members to take a similar cut in pay
  • Its fourth-quarter dividend was reduced 50% .. from the previous  quarter
  • The company continued to close offices…more than 115 offices

The current situation The largest decline in revenues came in agency premiums as they fell by 24% and 40% versus the third quarter of 2007. Actual title claims paid in the third quarter were $85 million versus $79 million in the third quarter of 2007.

When asked about claims by type and percentage of claims, FNF responded the “primary three, I would say, are search and exam errors… That’s about roughly 30% of our claims experience. Fraud and forgery,.. moved to number two in the last three years or so …running somewhere close to 20% currently. Then in closing-related errors and underwritten risk, are kind of three and four, (and) make up about two-thirds of our total losses.”

Regarding claims, it was noted “…given the pattern we had seen where our actual claims results continued to exceed our forecasted results; we realized that the current model needed to be adjusted. So we really stepped back from the current model and said… We’re going to disregard all prior reported claims experience other than the last three years, those years being 2006 through 2008. (IBNR will now be reserved at an increased 8.5%)

To increase revenue

  • FNF is renegotiating agents splits
  • Is increasing filed rates …generally 15% – 20% or more across the country.

No surprises given the state of affairs in the real estate market, and this bloggers expectation is that the four remaining major title underwriters are or will be doing exactly the same thing. Increases will happen across the board for all costs related to title insurance and closings.

Title Insurers Insure Closings

In the midst writing the 2nd edition of Title Insurance for Real Estate Professionals, I recognize how things have changed in the last couple of years for the title insurance industry. At the moment, I am working on closings.

Title Underwriters have been forced by demands from the market to begin insuring the closing process, a dangerous and expensive endeavor in today’s market. This was never part of title insurance. It is not something that was accrued for in planning and reserving money for claims. And where does closing liability end? Will closers and title companies be sued because someone claims they didn’t understand their loan documents – or worse yet, say the lender was in cahoots with the title company and closed the loan for the title premium and fees? Similar to the recent lawsuit by a buyer that they paid too much for their house because they were advised to do so by their real estate agent.

And the liability becomes worse – over the past years, closings have become more and more complicated. New types of loans—variable-rate, adjustable-rate, balloon mortgages, growing equity mortgages, interest-only loans, construction financing, reverse-annuity mortgages, and others—have moved into the market. These complex documents must be explained to the borrowers, a very difficult task, particularly evident is the lack of understanding of these documents in the real world, where foreclosures have run rampant the last years and the reality of the documents hits home.

Complications of closing also include dealing with heavy legislation pertaining to Federal Laws such as the Patriot Act, Truth in Lending (TIL) laws, the Real Estate Settlement Procedures Act (RESPA) and the Gramm-Leach Bliley Act (GLBA) dealing with privacy rules and closing. New local and federal legislation related to the sub-prime market and poor quality loans are making, and will continue to make, closings even more difficult by requiring additional documentation.

Independent “signing agents,” which are a fairly new phenomenon in the U.S., are unknowns in closing. Signing agents typically have no relationship with a title underwriter. They go to a home, bringing the documents with them for closing (frequently used in re-finance transactions.) Some signing agents see themselves strictly as notaries public, who witness signatures with no responsibility other than verifying the identity of the signers. Other signing agents are very knowledgeable about the documents and may thoroughly explain them – but do they have errors and omissions coverage? What if an error is made, who is responsible?

Is it appropriate for title companies to give a Closing Protection Letter, in effect insuring the closing? The State of New York says NO. It has specifically prohibited the practice in NY, citing the fact that the practice is a form of insurance, and potential claims are not being accrued for. What do you think?

Does Title Industry Need More Government Oversight?

Yesterday, My Fox News in Minnesota, reported a MN Commerce Department raid, where officials found thousands of mortgage closings that were never completed at two additional title companies – Title Source Mortgage Company and Home Sweet Home Equity. The raid showed that “more than 3,000 homes nationwide” were affected. The Commerce Department revoked the license of the companies, whose owners allegedly spent some of the money for a suite at the Minnesota Vikings games, and $20,000 in political contributions.

I am not sure what all that means, but I would estimate that once again, the title insurance underwriter(s) will be up to their proverbial necks with trouble from owners, lenders and the secondary market, because:

• Thousands of homeowners have unfiled deeds. Of record, they have no title to their houses. They will be hard pressed to sell their homes, refinance, etc.
Unwarranted Foreclosures will be forced. Money collected to pay off mortgages was likely not sent to the appropriate lender, causing these houses to be forced into foreclosure, through no fault of the owners.
Unpaid monetary items on each closing will be a huge problem. Taxes, assessments, homeowner association dues, child support liens, mechanic’s liens, and other title issues, while collected at these closings, will remain unpaid on these homes until the title mess is cleaned up on each home. Penalties and interest accrue on many of these daily.
• Likely hundreds of lenders have unsecured mortgage loans on these 3,000 properties, because the mortgages have not been recorded at the respective county. These lenders will have loans unsalable on the secondary market, because no mortgage notes and collateral packages have been provided to the end lender. And, at a mere $260,000 per transaction, that would be about $780,000,000. worth of headaches on this one title agent.

I have long been outspoken in my concerns about the quality of title work, and signing of inept and unethical title agents, but hand in hand goes the similar responsibility about the quality and integrity of closing the transaction. Title Agents need to be both knowledgeable and ethical. Title agents handle Billions of dollars each year of the public’s money. The licensing and oversight of Title Agents is obviously not being appropriately handled by the five national title underwriters.

It seems to be time for state legislatures to step in. Why not fund State oversight of title companies by assessing significant enough penalties to really make them do the right thing. Title companies need oversight of funds, regular education and continuing education in laws and ethics, and they need a big stick to make it happen.

Six More MN Title Agencies Closed by Commerce in February

Last month the Minnesota Department of Commerce announced it had taken action against another kickback scheme in which a title insurance agent set up sham affiliated businesses with real estate agents, mortgage originators and developers in order to get around state and federal laws prohibiting direct payments for referrals. The Department shut down six more sham affiliated business by revoking their title insurance licenses. Licenses revoked included: 1st Title, St Louis Park, MN; Timberland Title, Arden Hills, MN; Royal Title, Minneapolis, MN; St. Cloud Title & Abstract, St Cloud, MN and Foundation Title, Brooklyn Center, MN. The final company, Desert Sun Title, did not even have an address or any referral partners. It also fined Premier Title Insurance Agency $175,000 for the kickback scheme.

According to the MN Dept of Commerce enforcement web site, Premier Title Insurance “created and controlled sham Affiliated Business Arrangements (ABAs), employed or contracted with parties not licensed to sell insurance, ABAs sold Fidelity National Title’s policies, unlicensed people were paid commissions, and failed as a supervising agent to ensure that ABA relationships were disclosed..” They also “paid kickbacks or other things of value to its referral partners for the referral of title insurance business and real estate closings.”
Last year, the MN Department of Commerce fined First American Title Insurance Company of Santa Ana, California, $500,000 and shut down 35 of their sham affiliated businesses.

Even Minnesota Nice

Minnesotans believe they have more than their fair share of honesty and integrity. They seem to believe everyone is good and honest unless proven otherwise. They call themselves “Minnesota nice.” A transplant from the east coast once quipped “Ah yes, Minnesota… the land of the nice, being nice to the nice.” He didn’t believe it, and ended up moving back to New York. Perhaps he was right.

Case in point: Yesterday, a “nice” 50-year-old Chaska, Minnesota woman pleaded guilty to fraud and money laundering charges that netted her more than $2.5 million in her title business. The woman was the sole owner of the title company that closed residential mortgage loans and real estate sales. Her underwriter, obviously to ward off problems, apparently required her company to deposit sale and mortgage proceeds into a specified escrow account funds where it could be monitored. However, unbeknownst to the underwriter, she deposited a significant amount of money from closings into another account, and used the stolen money on houses, landscaping, a vehicle, motor home, a cabin and a boat. The case was investigated by a nice guy who works at the criminal division of the Internal Revenue Service.

Info On Home Closing

Home Closing 101: An Educational Initiative of the American Land Title Association