Be mindful of the potential hazards with an increasingly online-only landscape
As news continues to break, it becomes more and more apparent that the COVID-19 pandemic will have a lasting effect on our industry. While it’s critical that we learn to adapt amidst the crisis, it’s also imperative that we be mindful of the potential hazards that can come with shifting into an increasingly online-only landscape. Here are some of the things to watch out for as we navigate through this difficult time.
Increase in Wire Fraud and Phishing
There is no way to avoid electronic communications throughout this pandemic. Be vigilant against phishing emails, incorrect email addresses, slightly off signature blocks and dated lingo, and emails coming in at odd hours (implying the fraudster may be abroad). Always call a verified telephone number to confirm changes to wire instructions. Click on this link for more information on what to watch out for.
TIP: Have a plan in place – meet with your IT department, and talk to your insurance agent to see how you can protect yourself against these scams.
Fraud & Forgery
Unfortunately, tumultuous times often only embolden fraudsters further. That’s why it’s important now, more than ever, to treat remote closings with the same care and caution as mail-away closings. Here are some red flags common to fraud and forgery claims: (1) the property is a part of a “flip” transaction; (2) the property is vacant land; (3) the deed to the seller is a recently recorded quit claim deed. Click on this link for more red flags.
Powers of Attorney
Powers of Attorney (POA) are ripe for fraud. Carefully examine the powers that are granted in any POA, and confirm that the POA was given freely and purposefully for the intent for which it will be used. Require a fresh POA if the POA presented is more than six months old. If you have reason to question the capacity of the principal, or have questions about the validity of the POA, contact your local Alliant National underwriter for approval before proceeding.
TIP: If your state allows the use of remote online notarization (RON) technology and the county recorder will accept electronically signed instruments for recording, recommend using RON so the principal can sign the required documents instead of appointing an attorney-in-fact.
Undue Influence and Duress on the Elderly
With COVID-19 threatening the elderly more than any other demographic, we have a responsibility to ensure we’re mindful of any potential undue influence or duress from unscrupulous heirs or caregivers. If the person holding title is elderly or is sick, be sure to dig in further before agreeing to conduct the closing.
Hard Money Lenders
Hard money lenders aren’t regulated by state or federal law. Generally, hard money lenders do not collect loan applications or otherwise vet their borrowers. This practice creates a higher potential for fraud by third parties posing as legitimate borrowers. If something feels off, it probably is. For more information on what to look for with these transactions, click on this link.
Note: Seller-financed purchased money loans are not considered hard money lenders.
Crime Watch Program We take the safety of our clientele very seriously. Because of that, Alliant National offers a $1000 reward to any agent who helps identify and prevent a forgery or scam. Be sure to contact the hotline to report anything that may feel like fraudulent activity. To submit a claim for a reward, click here: https://alliantnational.com/title-claims/crime-watch-program/.
The information provided by a land survey can make all the difference in ownership and use.
A land survey provides a visual reference to what your property looks like on the ground and who might make a claim to your ownership based upon their use or possession of part of your property.
There are many types of surveys, but to provide title insurance coverage, a “Boundary Survey” is required.
The Boundary Survey locates the property on the globe and in relation to the property surrounding it. It also shows the improvements located on the property including fences and evidence of occupation or use.
The survey determines what is physically present on the land to be insured and locates that land in relation to other properties in the area.
Why should you care?
Because who is in possession of all or part of the land you’re buying, determines who may have a claim to it.
Possession may not be nine-tenths of the law, but it is very important. If someone possesses part of the land you’re buying, they may have a claim to ownership of that area.
Choosing a quality surveyor is a challenge just like choosing any other professional to do work for you. Possession may not be nine-tenths of the law, but it is very important. If someone possesses part of the land you’re buying, they may have a claim to ownership of that area.
There is no magic formula, but pay attention to his or her credentials, reputation or even better, referrals from those you already know and trust.
The cost of a typical residential survey is minimal when compared with the investment in your home or property and cost ranges from a few hundred dollars to much more if dealing with commercial or large tracts.
I’ve personally spent $1,500 for a survey of ten acres by an excellent surveyor, and as little as $300 for a residential lot by an okay surveyor.
To better understand why a survey is important, there are two elements that affect ownership:
- The land records maintained by the local government; and
- The actual occupation of the property
For a title insurance policy to be issued, the insurer searches the land records. We don’t see the actual property, just paper describing it.
That search is examined to determine who owns the property and who has claims to it.
Since we cannot see the actual land, the title commitment and policy take exception for anything that would have been discovered with a visit to the property or with a proper survey done by a surveyor.
So, if you want coverage for what might not be in the records that could affect your ownership or rights, a survey is needed.
Parts II and III of our continuing discussion of land surveys will get further down in the weeds on land survey trip-ups and issues.
But a simple look-see at what a land survey can avoid is in this simple (yet very complicated) dilemma: A buyer agrees to buy Lot 3 – a 100-foot lot. Research of the records shows the seller owns it. No survey was done.
Later it is discovered that the lot is only 90 feet to the neighbor’s fence. The neighbor says that 10 feet is theirs. The exception in the title policy may prevent any claim under the policy.
(If a survey was done before closing, this issue could have been dealt with ahead of spending the money for the lot.)
Or you buy Lot 3 without a survey, but the house you were shown is really on Lot 2! No survey, maybe no loss paid under the policy since you do own Lot 3.
Stay tuned for Parts II and III – where reliability, defendability and who owes whom what gets sorted out.
By Martin R. Ufford Member
Hinkle Law Firm,LLC
I’ve had the privilege of representing title insurance companies and their insureds for the past ten years.
Each claim represents a unique challenge. With the benefit of hindsight, I have reached some conclusions that may assist agents and local counsel in avoiding claims.
Looking to avoid title claims related to unpaid mortgages and deeds of trust? We offer 4 tips
Our Claims Team has received various claims related to unpaid mortgages and deeds of trust. Here are two scenarios we have seen arise in the context of a claim:
The agent receives a payoff statement from the seller. The seller sends an email requesting the payoff from the lender and copies the agent on the email.
The agent relies on the email and the payoff statement to wire funds to the lender.
Later, it is discovered that the email address for the lender is fake, and the bank account receiving the payment was held by the seller, not the lender.
The agent reaches out to the lender for a payoff statement. However, the closing date is approaching, and the lender has not responded.
The seller provides the agent with a printout showing a zero-balance owed on the account. The agent contacts the lender once again for a payoff statement.
The lender confirms over the phone that a zero balance is owed. The agent closes the transaction based on these representations.
Later, it is determined the original lender confirmed a zero-balance due because the loan had been sold to another lender.
An assignment of the mortgage had been recorded, and the current holder of the notes filed to foreclose.
Here are 4 tips to help you avoid these types of claims:
- Always obtain a payoff statement directly from the lender. Do not rely on payoff statements provided by other parties. Your request for a payoff should include a letter of authorization from the borrower, the loan number, the property address, the borrower’s name and your fax number or email address.
- Only rely on a payoff statement sent by the current holder of the note. Check the MERS system, (if the mortgage is a MERS loan), and the public records for the last assignee.
- Be mindful of working with hard money lenders – hard money lenders may assign their interests off the record. (See Bulletin 2017-02 and Claims Title Tip dated September 18, 2017 discussing hard money lenders .)
- Obtain separate payoff statements directly from each lender with an interest in the property being sold or refinanced. Do not rely on representations from the borrower or other institutions regarding the balance of a loan.
By Scott A. Malm
Many lawyers representing creditors record their money judgments and let escrow companies collect the judgment amount for them when the debtor sells real property.
But after a recent published opinion in Arizona applying its homestead protection laws, that practice may soon come to an end if the real property is protected by the homestead statutes.
In Pac. W. Bank v. Castleton, No. 1 CA-CV 17-0667, 2018 WL 6815531 (Ariz. Ct. App. Dec. 27, 2018), the Arizona Court of Appeals considered the effect of a $5.2 million recorded judgment on a subsequent conveyance of a personal residence by the judgment debtor to a third-party buyer.
After the close of escrow, the judgment creditor sought to collect its judgment against the buyer by filing a judicial foreclosure complaint.
Such action triggered coverage under a title insurance policy (not an Alliant National policy!) because the judgment was not listed in Schedule B.
The Arizona Court of Appeals had to decide the purely legal question: Is a recorded judgment a lien that encumbers homestead property? If so, the insured would lose its property.