Title Insurance Law Journal

Closing Protection Letters

• Closing Protection Letters Not Invoked Because Title Not Defective; Insurer Not Liable for Fraud of Dual Agent: James B. Nutter & Co. v. Old Republic National Title Ins. Co.

Title Insurance

• Title Report Not Enough to Show That Successor Lender Assumed Liens: Johnsen and Allphin Properties, LLC v. First American Title Ins. Co.
• Homeowner's Policy Covers Storm Water Tank Cave-In First American Title Ins. Co. v. Silbiger
• Owner's Policy Does Not Protect Against Foreclosure of Excepted Mortgage: Sewell v. Fidelity National Financial
• Claim Notice After Foreclosure Not Necessarily Tardy: Green Tree Servicing, LLC v. Chicago Title Ins. Co.
• Payment of Debt Extinguishes Loan Policies: Joglor, LLC v. First American Title Ins. Co.
• California Court Confused on What Terminates a Policy: Shah v. Fidelity Nat'l Title Ins. Co.

Agent Focus

• Agent Cannot Pass Claim Buck to Title Curative Counsel: Fidelity Nat'l Title Ins. Co. v. Title One, Inc.
• Time to Sue Abstractor Begins When Deed Is Recorded: Calvert v. Swinford

Conveyance News

• Massachusetts Mortgage Acknowledgment Survives Bankruptcy Attack: In re Thompson

Title Insurance

• Final Determination Provision Also Applies to Endorsement Coverage: RA Southeast Land Company LLC v. First American Title Ins. Co.
• Class Certification Denied in Title Insurance Rate Discount Case: Coleman v. Commonwealth Land Title Ins. Co.
• Insurer Not Required to Pay Fees of Insured-Retained Counsel: CH Properties, Inc. v. First American Title Ins. Co.
• Settlement That Imposed Modified Use Restriction Not Excluded As a Matter 'Agreed To' by Insured: Plantation Bay, LLC v. Stewart Title Guar. Co.
• Insurer That Took Custody of Money Escrowed With Agent Not Liable to Borrower: BAC Home Loans Servicing LP v. Zaskey
• Insured Cannot Sue Insurer's Parent Company for Claim Denial: Azran v. Fidelity Nat'l Financial, Inc.
• Insurer May Recover From Sellers for Breach of Warranty: Commonwealth Land Title Ins. Co. v. Rabeh
• Insurer Has Right to Arbitrate Recording Fee Upcharge Claims: Chassen v. Fidelity National Financial, Inc.
• Insured's Release of Mortgage After Claim Denial Does Not Necessarily Terminate Policy: Wells Fargo Bank, N.A. v. Stewart Title Guar. Co.
• Insurer Entitled to Recover Policy Loss From Borrower: Fidelity National Title Ins. Co. v. Harlow, Adams & Friedman, P.C.

Escrow Matters

• Escrow Company Not Liable to Owner for ‘Negligent’ Recording of Deeds of Trust: Centurion Properties III, LLC v. Chicago Title Ins. Co.
• Escrowee Owes No Duty to Person Owed Sale Proceeds: Kaplan v. Valley Nat'l Bank

Title Insurance

• Limited-Duration License Is Right of Access; Limited Access Does Not Make Title Unmarketable: Fidelity Nat'l Title Ins. Co. v. Woody Creek Ventures, LLC
• Insurer Has No Duty to Defend Lawsuit Claiming That Insured Deed of Trust Was a Device to Manipulate Creditors: LJW Land, LLC v. Old Republic Nat'l Title Ins. Co.
• Loan Funder Has ‘Insurable Interest’ Making It an Insured: Aries Investments, LLC v. First American Title Ins. Co.
• Policy Does Not 'Insure' That Parcel Has a Certain Street Address: Love v. Chicago Title Ins. Co.
• Insurer Payment of Lien Bars Breach of Warranty Recovery by Insured: Scurich Brothers, Inc. v. Frederickson
• No Policy Coverage for Post-Policy Tax Assessment: BV Jordanelle, LLC v. Old Republic Nat'l Title Ins. Co.

Escrow Matters

• No Duty to Disclose Double Escrow: Barrons v. Chicago Title Co.

Conveyance News

Equitable Subrogation Round-Up

Title Insurance

• Georgia Says Loan Policy Loss Measured on Foreclosure Date: Old Republic National Title Ins. Co. v. RM Kids, LLC
• Owner Must Be Out of Pocket to Suffer Loss: Marchetti v. Chicago Title Ins. Co.
• Another Tough CPL Decision Under Florida Law: Regions Bank v. Commonwealth Land Title Ins. Co.
• Full Credit Bid Defense Issue Sent to Arizona Supreme Court: Equity Income Partners, LP v. Chicago Title Ins. Co.
• Excess Carriers Off the Hook for Settlement of Major Title Litigation: Travelers Indemnity Co. of Connecticut v. Attorney’s Title Ins. Fund, Inc.

Agent Focus

• Escrow Account Hacking Does Not Clearly Fall Under E & O Policy Conversion Exclusion: ABL Title Ins. Agency, LLC v. Maxum Indemnity Co.
• Seller Cannot Sue Agent for ‘Negligent’ Refusal to Issue Clean Policy: Abikasis v. Provident Title Co.

Escrow Matters

• Individual May Be Liable in Escrow Naming Professional Corporation as Escrowee: Covey Run, LLC v. Washington Capital, LLC
• Short Sale Buyer Cannot Fight IRS Levy on Sale Proceeds Escrowed for Tax Lien: Lauderdale v. United States

Conveyance News

• MERS Has Standing to Defend Quiet Title Suit: Marjer, Inc. v. Poplawski

Title Insurance

• Arizona Measures Loss as of Policy Date on Some Lender Claims: First American Title Ins. Co. v. Johnson Bank
• Title Insurer Did Not Violate E-recording Agreement by Recording Copy of Lost Deed: Estate of Myrman v. U.S. Bank
• Insurer Cannot Get Attorneys’ Fees Against New York Notary: Chicago Title Ins. Co. v. LaPierre

Agent Focus

• Tort Claims Against Agent as Insurance Broker Not Barred by Economic Loss Doctrine: Bank of America, N.A. v. Bailey
• Insured Lender’s Judgment Against Title Agent Does Not Stop Insurer From Suing Agent for Loss: Fidelity Nat’l Title Ins. Co. v. Home Equity Title Services, Inc.

Escrow Matters

• Escrowee Did Not Breach Recording Duty Because Escrow Never Closed: Spring Gardens Inc. v. Security Title Ins. Agency of Utah Inc.

Conveyance News

• Federal Forfeiture Beats Interest of Spouse Who Was Not a Record Owner: United States v. Meadows

Title Insurance

• Closing Protection Letter May Be Triggered By Closer’s Failure to Tell Lender That Borrower Lied on Loan Application: Fifth Third Mortgage Co. v. Kaufman
• Policy Does Not Insure Title to Parcel Not Included in Schedule A and Not Owned By Insureds: Krajewski v. Fidelity Nat’l Title Ins. Co.
• Insurer That Takes Custody of Money Escrowed With Agent May Be Liable For Handling of Money: Bank of America, N.A. v. Zaskey
• Debtor Can Avoid Attachment Order After Time to Prevent Discharge of Debt Has Passed: In re Savino
• Insurer May Compel Arbitration of Policy Claim: Perdue Properties, LLC v. United States

Agent Focus

• Title Agent Cannot Escape Underwriter Liability By Starting New Company: Commonwealth Land Title Ins. Co. v. Metro Title Corp.
• Agent Errors So Obvious That No Expert Testimony Needed to Prove Liability to Insurer: Stewart Title Guar. Co. v. Kelley
• Arbitration Provision in Agency Contract Enforceable; State Law Does Not Preempt Clause: Hawkins v. Fidelity Nat’l Title Ins. Co.

Conveyance News

• Real Estate Records Price Gouging OK in Illinois: Fidlar Acquisition Co. v. First American Data Tree LLC
• Surveyor Not Liable to Neighbor for Slander of Title: Butler v. McCain and Associates

Escrow Matters

• Property Seller’s Lawyer Cannot Sue Escrowee for His Sale Fees: Estate of Gaspar

RESPA Alert

• Maryland Mini-RESPA Law Does Not Create Private Cause of Action: Fangman v. Genuine Title, LLC

Title Insurance

• One Small Word Has Huge Effect on Closing Protection Letter Interpretation: Bank of America, NA v. First American Title Ins. Co.
• LLC Member Cannot Sue on Policy Issued to Company: Eden v. Fidelity Nat’l Title Ins. Co.
• Policy Does Not Require Insurer to ‘Defend’ Owner Insured in Lender’s Action to Reform Mortgage to Add Parcel: Stewart Title Guar. Co. v. McClain
• Insurer May Pursue Indemnitor for Sale Proceeds That Should Have Paid Off Lien: First American Title Ins. Co. v. Dundee Reger, LLC
• Mechanic’s Lien Subordination Effective: Old Republic Nat’l Title Ins. Co. v. Hartford Fire Ins. Co.
• Time to Sue Under Policy Begins When Claim is Denied: Wells Fargo Bank, N.A. v. First American Title Ins. Co.

Agent Focus

• Four-Year Malpractice Limitations Law Bars Title Examination Suit: ALR Oglethorpe, LLC v. Henderson

Escrow Matters

• South Carolina Reprimands Lawyer For Allowing Non-Lawyer to Disburse Closing Money: In re Breckenridge

Conveyance News

• MERS Beats Another Government Recording Fee Suit: Kubic v. MERSCORP Holdings, Inc
• Fannie Mae Exempt From State Penalty for Failing to Promptly Record Mortgage Satisfactions: Radatz v. Federal National Mortgage Ass’n
• Equitable Subrogation Decisions

Title Insurance

• Title Agent’s Collaboration in Loan Fraud Does Not Keep Insurer From Recovering From Fraudster: Commonwealth Land Title Ins. Co. v. Howard
• Jury Correct: Insurer Met Its Duty by Tendering DIV: Millies v. LandAmerica Transnation Title Ins. Co.
• Insurer Must Pay Policy Amount; No Credit For Amounts Payable to Insured From Others: In re D’Anna
• Judgment Debt Against Attorney Discharged Because Mistake Did Not Equal Fraud: In re Moses
• Owner Cannot Sue Insurer Over Availability of Insurance Notice: Scott v. BAC Home Loan Servicing, L.P.

Agent Focus

• E&O Policy Exclusion Not Limited to Illegal Profit or Gain: National Title Agency, LLC v. United Nat’l Ins. Co.

Escrow Matters

• HUD Closing Contract Bars Closer From Charging Buyers for Closing Services: Northwest Title Agency, Inc. v. United States
• Borrower Gets Discharge Despite His Failure to Close Equity Loan Account: In re Casali
• Escrowee Has No Duty to Verify Identity of Parties: Ramos v. Romero
• Escrowee Had No Duty to Verify That Condition for Release of Money Had Occurred

Title Insurance

• Defending Hopeless Title May Be Bad Faith Act: Anastasi v. Fidelity Nat’l Title Ins. Co.
• Insurer Did Not Slander Title by Asserting Access Easement for Insured Parcel: Regan v. First American Title Ins. Co.
• Sanctions Order Debt Not Dischargeable in Bankruptcy: In re Crawford
• Insurer Has Duty to Pay for Independent Counsel to Defend Against Claim of Collusive Foreclosure Bid: Andromeda Real Estate Partners, LLC v. Commonwealth Land Title Ins. Co.
• Anti-Deficiency Law Does Not Bar Insurer From Recouping Based on Note: First American Title Ins. Co. v. Branyan
• Owner Cannot Sue Title Insurer for ‘Fraudulent’ Sale of Property: In re Woodson

Agent Focus

• Misrepresentation in E & O Application Voids Coverage: Zurich American Ins. Co. v. Expedient Title, Inc.
• Escrow Company Did Not Breach Instructions When Lender Demanded Return of Loan Money: Mazgani v. S.B.S. Trust Deed Network, Inc.
• Escrowee Has No Duty to Inform Buyer of Double Escrow Described in Purchase Agreement: Resh v. Realty Concepts, Ltd.

Conveyance News

• Valuation on Forced Sale of Strip of Land Does Not Include Lost Ren: In re Minnwest Bank Litigation Concerning Real Property

Land Records

• Data Scraping From Real Estate Records Not ‘Fraud’: Fidlar Technologies v. LPS Real Estate Data Solutions, Inc.
• Deed Information Is Public and Not a ‘Trade Secret’: Harris County Appraisal District v. Integrity Title Company, LLC

Title Insurance

• Loan Debt Dischargeable Because Mortgage Was Missed, Not Concealed: In re Koosyial
• Statute Says Claim Notice to Agent is Adequate: Gibbs v. Williams

Escrow Matters

• Re-Recording To Correct an Error Is Not Fraud: Hooper v. Ticor Title Ins. Co.
• Escrow Company Does Not Owe Seller Over Fixed Title: K Corp. Enterprises, Inc. v. Fidelity National Financial, Inc.
• No Credit Score Harm or Punitive Damages for Escrow Mistake: Country Title, L.L.C. v. Jaiyeoba

Conveyance News

• Recording of Real Estate Documents Is a Privilege, Not a Duty: Montgomery County, Pa. v. MERSCORP Inc.

RESPA Alert

• Because Attorney Title Agents Provide Some Title Services, Premium Splits Are Not RESPA Violations: Chultem v. Ticor Title Ins. Co.
• Is an Agency Contract a Referral Fee?: Edwards v. First American Corp.

Title Insurance

• Insurer May Sue Seller for Concealing Lien Risk: First American Title Ins. Co. v. Commerce Associates, LLC
• Title Policy Protects Against Zoning Resolution Prohibiting Construction of Residence: Lyons v. Fidelity Nat’l Title Ins. Co.

Agent Focus

• Agent Liable Only for Gross Negligence: Fidelity Nat’l Title Ins. Co. of New York v. Crowley
• Company Liable for Not Recording Documents Even If Recording Fees Not Paid: 1st State Title v. LP Recordings LLC
• Title Attorney Cannot Lay Off Malpractice Claim on Title Searcher: Hines v. Holland

Escrow Matters

• Escrowee Correctly Disbursed Money to Seller Before Close of Escrow: Lin v. Central Escrow, Inc.

Conveyance News

• Equitable Subrogation Case Round-Up

Title Insurance

• Very Remote Grantee is Successor Insured Under Owner’s Policy: North Fork Land & Cattle, LLLP v. First American Title Ins. Co.
• Affirmative Defense to Insured’s Complaint Does Not Invoke Duty to Defend: Yarbrough v. First American Title Ins. Co.
• Insurer Had No Duty to Defend Lawsuit Over Off-Record Agreement Between Insured and Others: Carrington v. Chicago Title Ins. Co.
• Claimed Search Negligence Does Not Bar Recovery of Defense Costs: Glesner v. Baer
• Late Claim Notice Voids Policy Coverage: Pike v. Conestoga Title Ins. Co.
• Deposit of Settlement Money is Acceptance of Release Terms: Higbie v. Stewart Title Guar. Co.
• Insurer Must Defend Insured in Lawsuit About Paving of Easement Path: Perry v. Fidelity Nat’l Title Ins. Co.

Agent Focus

• Recoupment Action Against Title Agent Falls Under Statute of Limitations for Breach of Contract, Not Tort: Fidelity Nat’l Title Ins. Co. v. B&G Abstractors, Inc.

Escrow Matters

• Closer May Sue Recipient of Errant Wire For Return of Money: District Title v. Warren
• Title Company Owes No Duty to Borrower-Owner in Processing Construction Draws: Elsebaei v. Philip R. Seaver Title Co., Inc.