6 Infographics that Answer Commonly Asked Real Estate Questions

Property tax annual cycle

Sometimes a picture can communicate information much more clearly and quickly than words.  With that in mind, we’ve used diagrams and infographics here to answer common questions that our Escrow Officers, Title Officers, and Property Information Specialists receive.

The six infographics below answer tough questions relating to real estate probate situations, property taxes, REO transactions, and bankruptcy.

 

1. Probate Path – Single at Death

This flow chart illustrates who now owns the property when an owner of record is deceased and single at death. Click the following link for more information: Probate Path – Single at Death

Probate path - Single at death

 

2. Probate Path – Married or Domestic Partner Community Property

This flow chart illustrates the process of identifying who now owns the property in a situation where one partner is deceased and the real estate is considered community property.  Click the following link for more information: Probate Path – Married or Domestic Partner Community Property

Probate path - Married at death

 

3.  Probate Path – Married or Domestic Partner Separate Property

This flow chart illustrates the process of identifying who now owns the property when one or both partners is deceased and the real estate is owned as a separate estate.  Click the following link for more information: Probate Path – Married or Domestic Partner Separate Property

 

probate path married separate property

 

4. The Property Tax Annual Cycle

This infographic answers common questions relating to property taxes in Washington state, including how are taxes calculated, when they are due, and how taxes are prorated for buyers and sellers.  Click the following link for more information: Property Tax Annual Cycle

Property tax annual cycle

 

5. The REO Transaction Process

This infographic illustrates the timelines in escrow for purchases of bank owned properties.  Click the following link for more information: REO Transaction Process

 

REO Transaction Process Infographic

 

6.  The Lifecycle of Bankrupcty

This flowchart depicts the complex process of filing for bankruptcy and includes the most common paths for chapters 7, 11, and 13.  Click the following link for more information: The Lifecycle of Bankruptcy

 

Life Cycle of Bankruptcy infographic- Chapters 7, 11, and 13

 

Zero Demand Statements & Why We Utilize Them

Recently, one of our sister offices opened a For Sale by Owner transaction with a sale price of $495,000. The escrow assistant, Debbie N., ordered a title report. The title report reflected two deeds of trust on title, each with a reconveyance recorded with a side note that read, “Said deed of trust appears to be reconveyed by the above recorded instrument. An inquiry must be made with the lender confirming payment prior to close.”

Debbie requested loan numbers from the seller, an unmarried woman. The seller responded that the loans were paid in full and she had a new loan that just recorded. Debbie requested payoff information for the new loan as well as the prior two loans. The seller reluctantly provided the loan numbers and contact information for all three lenders. Debbie then ordered an updated title report to reflect the new deed of trust, which had recently recorded.

A private lender was used

The new loan was through a private lender, Ronald V. Cupp. Debbie ordered the payoff information and at the same time contacted the former lien holders to verify they had, in fact, received payment in full. Neither lender would confirm payment in full to Debbie without a signed third–party authorization from the seller.

Debbie tried another tactic; she ordered payoff statements from both lenders in writing. Neither lender responded immediately to her request. Debbie printed copies of the recorded reconveyances and found they were signed by none other than the new private lender Ronald V. Cupp!

Cupp signed as attorney–in–fact on both reconveyances. The documents were notarized. Debbie looked up the notary information only to discover the notary worked at a Mail Boxes, Etc., not at the financial institution purportedly releasing the lien.

“Debbie looked up the notary information only to discover the notary worked at a Mail Boxes, Etc.”

Debbie tried calling the first lienholder one more time. Lo and behold the first lien holder confirmed their loan had been fully paid and stated it would take 21 days to research the validity of the reconveyance. In the meantime the second lienholder finally responded to Debbie’s payoff request and faxed a demand for more than $95,000.

Buyers and seller had been waiting for loan documents to arrive for closing. There had been a long delay due to appraisal issues and both were very anxious to sign, especially the seller. Debbie allowed the signing to proceed with payoff to the second lien holder in the amount of $95,000 showing, as well as the payoff to Ronald V. Cupp in the amount of $137,000.

For the first lienholder, Debbie estimated reconveyance fees and explained to the seller the Company would not close until the first lienholder provided a zero demand and/or a reconveyance executed by one of their corporate officers.

THE MORAL OF THE STORY

When a lien is extinguished with no new money or conveyance, title examiners are trained to add the note requiring verification of an actual payoff. It is imperative the settlement agent exhausts all avenues to obtain proof of payment in full through a zero demand or other lender–provided statement.

The industry can no longer rely solely on the recorded release document, since so many of them have been forged and recorded. The proof of payment in full must be provided to the title officer prior to closing the new transaction. If proof cannot be obtained, then the transaction should not close.

Surprise! Another lienholder was found

After much persistence, Debbie learned the first lienholder’s loan number the seller had provided was for a previous loan that was paid in full. However, there was a current loan with an outstanding balance of more than $358,000.

The escrow officer called the seller and asked her about the loans, but the seller quickly got off the phone and said she was going to talk to her attorney. The file was put on hold, since there were not enough sale proceeds to pay all three loans:

1st Loan Payoff = $358,000
2nd Loan Payoff = $ 95,000
3rd Loan Payoff = $137,000
TOTAL $590,000

No sale…

The buyer was devastated to learn they were not going to be moving into their dream home. They were holding out for some reasonable explanation from the seller, but the seller refused to talk to them or anyone else involved in the transaction.

Debbie’s diligence in following Company procedures is commendable. Had she not unraveled the mystery of the forged reconveyances, the buyer would have closed and most certainly the 1st and 2nd lienholders would be foreclosing for the prior owner’s unpaid loans.

The Company’s potential liability would have been $453,000 plus legal fees. For her expertise and effort Debbie was rewarded and recognized by our company.

Questions or comments? Please share below!

Alert Escrow Officer Foils Forgery

signature examination in escrow

signature examination in escrowTraci F., an escrow officer out of our sister office in Vancouver, Wash. was handling a short sale transaction. According to the listing agent, the property owner was unavailable to sign his closing documents because he was in the Ukraine.

The agent also said the owner was not going to be able to come back to the U.S. to sign his documents, so Traci began making preparations to have the documents executed internationally. Days later the agent called to tell Traci the seller was suddenly able to catch a flight back to the U.S. and was on his way to her office to sign a Power of Attorney (POA), giving his brother the power to sign on his behalf. The agent was extremely excited and insisted the owner would be at her office in the next 15 minutes.

Synopsis

A seller located in the Ukraine suddenly appears in our Vancouver, Wash. office to sign a Power of Attorney, granting his brother the authority to sign on his behalf. A few days later, the supposed brother appears for the signing as attorney-in-fact. Guess what – it’s the same guy, and no, these guys are not twins!

Something seems fishy…

Traci thought it odd the seller was able to find a flight to the U.S. so quickly, however. She drew the POA document as instructed and it was executed, thus granting the ability for the owner’s brother to sign. A few days later the brother came in to sign on behalf of the owner. Something didn’t seem right, as Traci was fairly sure this was the same gentleman who had come in to sign the POA – representing himself as the seller – a few days before. The two were said to be brothers, so Traci thought similarities seemed possible and the “brother’s” ID photo matched his appearance. After the signing, Traci asked the opinion of the office receptionist, who also thought it was the same individual who had come in to sign a few days previously.

After further examination…

Traci had a gut feeling something was wrong with the situation and conducted more research. The printing and signature from the POA and seller’s newly signed closing documents appeared to be very similar. Traci examined the copy of the ID she had taken from the individual who signed the POA (representing himself as the seller) and the signature did not appear to match the one she had received on the POA. Traci brought the signed documents and ID copies first to her branch manager and then the county manager. The signatures on the seller’s ID did not appear to match up with the seller’s signature on the POA. But Traci was still certain that the seller and the brother were the same individual, posing as separate individuals.

As a result of her suspicions, Traci and her manager contacted the listing agent to let him know we would not be able to accept the POA. Traci expected the agent would be at least slightly irritated, however no questions were asked and no arguments were made. Traci made arrangements to contact the seller directly to execute the documents in the Ukraine.

Moral of the story

Traci did the right thing by not confronting the parties with her suspicions. Instead, she contacted her manager and together they denied the use of the POA, thus protecting the Company from insuring a deed with a possible forgery. If we had accepted and insured a forged deed, the owner could have come back to the buyer laying claim to the property. We are expected to protect the buyer’s ownership interest under the owner’s policy of title insurance issued through this transaction, since protection against forgery is the cornerstone of any of our policies.

A Wrap-Around Mortgage Gone Bad…

HUD Seal

Early on in Allen Clussive’s career he agreed to close a transaction wrapping around an existing loan. The sale price on the transaction was $185,000. The buyer could not qualify for new financing and asked the seller to carryback a new loan in the amount of $180,000. The seller agreed, with the understanding that without the buyer obtaining a new loan he would not have the financial means to pay off his existing first loan in the amount of $157,000. The buyer and seller agreed to wrap the existing $157,000 loan with the new seller carryback loan. The underlying loan was an FHA loan originated after 1989.

Then the payments stopped

HUD SealAt closing, the buyer brought in $5,000 for his down payment plus his closing costs. Allen closed the transaction. After closing, the buyer paid the seller and the seller paid the FHA loan on time every month. Upon receipt of the buyer’s payment the seller paid the monthly principal, interest, taxes and insurance (PITI) payments to the lender servicing his FHA loan, and pocketed the balance. Everything was working perfectly until the 13th month when the buyer suddenly stopped making his monthly payments and abandoned the property.

The seller panicked and started to look for an attorney to start foreclosure in order to take the property back and put a renter in the house. In the meantime, the seller kept fronting the payments to the FHA loan to keep the payments current. The seller was making two house payments — one on his old home and one on his new home. Eventually the seller ran out of money and stopped making payments on the FHA loan.

The lender servicing the FHA loan started foreclosure and took the property back. The lender listed the property as an REO — bank–owned property – and resold it. They resold the property for $107,000, which was $50,000 less than they were owed. The lender filed a claim with FHA to be reimbursed the loss of $50,000. FHA sent the lender the $50,000 to cover their claim and the loan file was turned over to an investigator at the U.S. Department of Housing and Urban Development (HUD), the agency who regulates FHA loans.

An unlawful act was found

The new owner was not qualified

The HUD investigator discovered Clussive had facilitated a closing where title was transferred – yet the new owner’s credit did not qualify for the existing FHA loan. The investigator deemed the act unlawful and debarred Clussive from closing another FHA or VA insured loan transaction.

The HUD investigator discovered the property was transferred to a new buyer, but the buyer’s funds were not used to pay off the FHA loan. The investigator was curious how that could happen and sent a subpoena for Clussive’s file.

The HUD investigator discovered Clussive had facilitated a closing where title was transferred – yet the new owner’s credit did not qualify for the existing FHA loan. The investigator deemed the act unlawful and debarred Clussive from closing another FHA or VA insured loan transaction.

Now, to be honest with you, the action by HUD did not damage Clussive’s career. He lived and worked in an affluent community where FHA and VA loans were not prevalent due to their low loan limits. Sure, every once in a while one of Clussive’s customers would present a contract reflecting new FHA or VA financing and he would have to steer the customer to one of his associates to close the transaction, but for the most part it had little to no effect on his career. However, Clussive would be the first to tell you it definitely had a psychological effect on him.

Never again

Had Clussive known HUD issued a directive in 1990 (see below) banning the wrap of an FHA loan by any means — a land contract, a deed of trust, mortgage — he would have never accepted the transaction and agreed to close it. Unfortunately Clussive’s ignorance of the HUD rules did not exempt him from action by HUD.

In order to ensure Clussive never closed another FHA or VA loan, they placed his name on the Excluded Parties List System (EPLS) and Limited Denial Participation list. By placing his name on the list it ensured Clussive would never be able to close another FHA or VA loan or any other transaction involving the Federal Government, such as a HUD or VA REO sale.

Below is a letter from the U.S. Department of Urban Development issued back in 1990 addressing the ramifications of circumventing the credit qualifying process.

HUD letter

 

Questions or comments?  Please share below.

Bank of America Short Sale Letter Verification Hotline

short pay letter verified

You might recall our post titled,  “FAKE Short Pay Letters? True Story...” which discussed how an alert settlement agent identified a fraudulent approval letter supposedly issued by Bank of America. She prevented the closing, saving the Company from potential future liability.

In an effort to prevent the reoccurrence of such fraud going forward, Bank of America will now give our representatives the ability to verify approval letters without a title–company–specific Third Party Authorization already in place.

Title & Escrow Officers and Original Borrowers May Use the Hotline

Bank of America Short Sale Customer Care Department

Phone 1.866.880.1232
The hours of operation are:
Monday through Friday:
8 a.m. to 10 p.m. EST
Saturday:
9 a.m. to 5:30 p.m. EST

Below is a telephone number settlement agents or title officers may call to verify certain key data points for approval letters where the original loan balance exceeded $500,000. This original loan cutoff amount was selected because, thus far, fraudsters have concentrated on large–balance loans.

If any of our title or escrow officers are suspicious of an approval letter provided by the Listing Agent, we may call to confirm its validity.

Both title officers and original borrowers can use the same telephone number included in the following standard disclosure on the approval letter below:

“Bank of America appreciates all of your efforts and cooperation in this matter. If you have any further questions, please contact our Short Sale Customer Care Department at 1.866.880.1232.”

To verify an approval letter, select Option 1

The hours of operation are:
Monday through Friday: 8 a.m. to 10 p.m. EST
Saturday: 9 a.m. to 5:30 p.m. EST

Bank of America will verify the following information with title officers when they call the number:

  1. The original borrower’s name
  2. The property address
  3. The loan number
  4. The agreed–to short sale payoff amount
  5. Amount approved to junior lien holders specified on letter
  6. The date by which this amount must be received by the bank

When title officers call Bank of America, they will access the approval letter provided to them by the listing agent, as it will be needed to complete the verification process.  Also, an approval letter that does not direct the borrower to contact the Customer Care Department, is likely fraudulent.  At a meeting between Our Company and Bank of America representatives, they stated, “We look forward to partnering with you in this effort and thank you for your cooperation.”

Questions or comments?  Please share below!

The Home Closing Process and Benefits of an Owner’s Title Insurance Policy

The segment does an outstanding job of illustrating how the work done by title insurance professionals provides consumers peace of mind when purchasing a home.

 

 

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Buying a house is an event that happens only a few times in a lifetime for most people. It’s an exciting time and the more you know about the process and what to expect during closing, the more relaxed you’ll be going through it. The American Land Title Association collaborated with the Designing Spaces television series to explain to homebuyers the Escrow closing process and the value of purchasing an owner’s title insurance policy.

Mortgage Fraud Quiz

Mortgage Fraud Quiz

Mortgage fraud is a material misstatement, misrepresentation or omission relied upon by an underwriter or lender to fund, purchase or insure a loan. It continues to evolve as lenders and fraudsters alike adapt to changing economic conditions and government regulations. How much do you know about it? Take the quiz to find out.

1.  A title policy insures against:

    1. Fraud and forgery
    2. Principal and interest
    3. Madness and mayhem
    4. Metes and bounds

2.  A straw buyer is:

    1. Someone who purchases straws in bulk
    2. Someone with good credit who agrees to help someone with bad credit obtain a loan
    3. A first time home buyer
    4. Someone who is over 65

3.  Which of the following items are commonly fabricated in order to induce a lender to approve a loan:

    1. Employment verifications
    2. Mortgage loan applications
    3. Bank statements
    4. All of the above

4.  What document is the most forged document in a real estate transaction:

    1. Deed
    2. Power of Attorney
    3. Mortgage
    4. Purchase Contract

5.  Flopping occurs in what type of transaction:

    1. Refinance
    2. Deed in Lieu
    3. Bulk Sale
    4. Short Sale

6.  Which of the following steps can a settlement agent follow to assist in preventing fraud from occurring in one of their transactions:

    1. Disclose all receipts and disbursements on the HUD-1 Settlement Statement
    2. Make sure the funding lender has everything the settlement agent has
    3. Trust their escrow gut
    4. All of the above

7.  Proper identification should be issued by a governmental entity and include a physical description and (select all that apply):

    1. Include the bearer’s signature
    2. Include the expiration date
    3. Include the bearer’s weight
    4. Include the bearer’s photograph

8.  Which of the following is a red-flag warning of a possible fraudulent transaction (select all that apply):

    1. Purchase offer is more than the list price
    2. Unusual expenses paid by the seller
    3. Silent second mortgages
    4. Transactions not recorded on the HUD-1 Settlement Statement

9.  What are the two classifications mortgage fraud schemes are put into:

    1. Fraud for profit and fraud for housing
    2. Tit for tat
    3. Civil and criminal charges
    4. Tax evasion and wire fraud

10.  Who are usually the perpetrators in a fraud for housing scheme:

    1. Cops
    2. Industry professionals
    3. Drug dealers
    4. Ex-cons

 

Quiz Answers:

  1. A title policy insures against:
    Answer: Fraud and forgery
    The Covered Risks section of both an Owner’s and Lender’s title policy state the insured is covered for, “a defect in the title caused by…forgery, fraud…” Since this coverage is offered in all of the title polices available, fraud and forgery is of major concern to the title industry as well as our Company.
  2. A straw buyer is:
    Answer: Someone with good credit who agrees to help someone with bad credit obtain a loan
    Generally, a straw buyer is someone recruited by a perpetrator to take out a mortgage and purchase a house in their name. The straw buyer normally does not live in the house or have the intent to reside at the house. They often receive cash in exchange for the use of their credit and name.
  3. Which of the following items are commonly fabricated in order to induce a lender to approve a loan:
    Answer: All of the above
    Mortgage fraud schemes involve falsifying a borrower’s financial status by including material misstatements on documents the lender’s underwriter relies on, when evaluating the eligibility of a borrower. This is done by supplying fictitious employment verifications, mortgage loan applications and bank statements
  4. What document is the most forged document in a real estate transaction?
    Answer: Power of Attorney
    A Power of Attorney is written authorization to represent or act on another’s behalf in private affairs, business or some other legal matter. As a result, perpetrators sometimes forge the names of property owners in order to sell a property out from under the rightful owner or use the Power of Attorney to get a loan to strip all the equity from a property unbeknownst to the property owner.
  5. Flopping occurs in what type of transaction:
    Answer: Short Sale
    A flopping scheme requires the perpetrator to conceal or provide falsified information to the loan servicer. This is information the servicer needs to make informed short sale decisions. These concealments might include hiding the true parties to transaction, any contingent transactions or the true value of property.
  6. Which of the following steps can a settlement agent follow to assist in preventing fraud from occurring in one of their transactions:
    Answer: All of the above
    The settlement agent is often the best defense against mortgage fraud. Without them, the fraud might never be prevented. It is important the settlement agent fully disclose all receipts and disbursements on the HUD-1 Settlement Statement and material facts to the funding lender.
  7. Proper identification should be issued by a governmental entity and include a physical description and:
    Answer: Include the bearer’s signature and photograph
    Forged documents are often one of the many elements included in a mortgage fraud scheme. It is important to the lender and title company the borrower is property identified. Although the identification requirements for the purpose of notarizing vary from one state to the next, it is often the lender who requires the borrower present identification which contains all of these elements.
  8. Which of the following is a red-flag warning of a possible fraudulent transaction:
    Answer: A, B, C and D
    Although any one of these items alone might not be an indicator – combined they definitely have the makings of a scheme.
  9. What are the two classifications mortgage fraud schemes are put into:
    Answer: Fraud for profit and fraud for housing
    The FBI defines these two classifications. They state fraud for housing entails misrepresentations by the applicant for the purpose of purchasing a property for a primary residence. This scheme usually involves a single loan. Fraud for profit often involves multiple loans and elaborate schemes perpetrated to gain illicit proceeds from property sales.
  10. Who are usually the perpetrators in a fraud for housing scheme:
    Answer: Industry professionals
    Industry professionals are the ones most familiar with the ins and outs of the loan process – and most often the perpetrators involved in a fraud for housing scheme. The scheme could never occur without the cooperation of the real estate agents, loan officers, appraiser and settlement agent assisting in all the material misrepresentations which must be provided.

How did you do?  Please share your comments below!

 

What is bankruptcy? What options are available to the debtor and the creditors?

bankruptcy options
The purpose of bankruptcy is two-fold: (1) to give the debtor (the party filing bankruptcy) a fresh start and (2) to
pay creditors in an orderly fashion. Bankruptcy is governed by federal law which usually trumps state law when it comes to the actions of both the debtor and creditors.

Liquidation vs. Reorganization

There are essentially two types of bankruptcy – liquidation and reorganization. In a liquidation the debtor gives up trying to pay debts, and assets are turned over to a trustee who sells them to pay creditors. Reorganization offers the opportunity to pay off (usually in installments) or restructure debts based on a plan approved by the creditors and the court. Business entities can continue to operate and come out of bankruptcy in better shape.

Ultimately, no matter which type of bankruptcy it is, the individual debtor is discharged from personal obligation to pay most existing debts, which will not be liens on property acquired in the future.

The Life Cycle of Bankruptcy

Click the image below to view an article and infographic of the life cycle of bankruptcy.  The life cycle of bankruptcy
Click here to view a printable version of the lifecycle of bankruptcy infographic

The most common bankruptcy plans are:

Chapter 7

Chapter 7 is a liquidation, where a trustee is appointed. Certain assets (i.e. your personal residence) can be exempted. Unsecured creditors (for example, a creditor that does not have a mortgage on real property) may end up with nothing, and secured creditors may get less than what they are owed. Real estate transactions require court approval.

Chapter 11

Chapter 11 is a reorganization available to businesses and certain qualifying individuals. It results in a plan allowing for continuing operation of a business, and usually most secured creditors get paid in full and unsecured creditors may get something. There may or may not be a trustee, but if not, the debtor is usually allowed flexibility to do what a trustee would do if it was in the “normal (e.g., ordinary) course of business.” Real estate transactions usually require inclusion in the plan or a special court order. An exception to this rule might be a developer who can usually sell individual lots or houses without special approval.

Chapter 12

Chapter 12 is also a reorganization available to farmers and fishermen. This is shorter than a Chapter 11, and unsecured creditors get less protection.

Chapter 13

Chapter 13 is a “wage earner” reorganization available only to individuals, with a plan and a trustee. Creditors usually get partial payment, but can challenge the plan. The individual has to wait until the plan is completed (usually 3 years or less) for a discharge of debts, except in limited “hardship” situations.

Any type of bankruptcy can be converted to another type. It is important to remember that the bankruptcy court retains jurisdiction until it is closed. In some cases, the court can actually go back and void transactions that occurred even before the bankruptcy was filed. In a reorganization, the plan has to be completed and the case formally closed before the debtor is free from the bankruptcy.

Download

Click the image below to download a printable version of this article.  What is bankruptcy and what options are available?
Bankruptcy Options

The automatic “stay”

One important effect of bankruptcy is an automatic “stay” of any actions of the debtor or creditors, including selling real property or foreclosing any liens. The court obtains immediate jurisdiction over all property, wherever located and no matter where the bankruptcy is filed. Whatever might have been in the works comes to a halt, and no one can proceed without court approval. Some debtors will attempt to file bankruptcy merely to forestall a foreclosure, but a creditor can request that the stay be lifted in order to proceed with a foreclosure, and if the property wouldn’t generate funds for the other creditors, then the court will usually lift the stay, allowing the lender to proceed.

Future blogs will address elements of a bankruptcy, including exemptions, abandoned property, sales “free and clear” and the effect of a discharge, some of which involve common misconceptions about bankruptcy.

Click the following link for a flow chart of the bankruptcy process.

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HELOC Spending Spree – Was it Fraud or Ignorance?

Honest Mistake?

During a refinance transaction, a home equity line of credit was paid off – but not closed. Later the refinance lender foreclosed and sold the REO (bank owned) property to a new owner. One of our underwriters insured the refinance, issued the trustee’s sale guarantee and insured the new owner on the sale out.

The former property owner then ran up $172,622 in debt against his home equity line of credit, which was secured by a house he didn’t own. He made no payments, and the home equity lender started foreclosure!

HELOC fraudAs part of a refinance transaction the settlement agent paid, in full, a home equity line of credit (HELOC) in the amount of $149,392.71.

The lender’s payoff statement required the borrower, Mr. Gonzalez, to check either box:
[] Payoff Only
[] Payoff, Terminate and Satisfy/Discharge Mortgage

The payoff statement also provided:
If neither box is checked, the account will remain open and no satisfaction of mortgage will be filed.

The payoff statement further provided:
Notice to Borrower and Closing Agent: A Request to terminate/close your home equity line of credit account to satisfy the mortgage will be processed if (1) the second block is checked; (2) all amounts owed are paid in full; and (3) at least one borrower on the account signs this payoff request.

A Very Small Oversight

Gonzalez signed the payoff request, but due to an oversight on the settlement agent’s part, neither box was checked. As a result the payoff check and request were sent, but the HELOC was not frozen and no reconveyance of the deed of trust securing the loan was ever recorded.

Fast forward two years later: Gonzalez fell behind on his payments, and the refinance lender foreclosed, obtaining a Trustee’s Deed upon sale. Subsequently the lender re-sold the property to a new buyer. The sale transaction was handled by one of our offices. The preliminary report showed the HELOC still of record in first lien position as well as a recorded Notice of Default. A claims attorney allowed the title office to insure around the outstanding HELOC, since Our Company had insured the previous transactions involving the refinance lender, the trustee sale guarantee to the refinance lender, and now the ultimate re-sale to the new owner. An endorsement was issued to the final policy of title insurance deleting the exception of the HELOC loan.

The New Owner Files a Claim

The HELOC lender moved forward with its Notice of Default and set a date for Trustee’s Sale. When the new owner received the notices of an impending foreclosure, she opened a claim with Our Company, as she was about to lose her home. The claims department contacted the HELOC lender for a new payoff statement. When the payoff statement was received, the claims attorney noticed Gonzalez (the former owner) had run up $172,622 against his line of credit!

In order to protect the insured’s interest in the property, the Company paid the HELOC lender off again and this time demanded the HELOC be closed and the lien released. The claim was deemed an escrow loss and charged back to the operation dollar-for-dollar!

In an attempt to recoup our losses, the claims attorney sent a written demand to Gonzalez for reimbursement of the amount paid on his behalf to the HELOC lender. Gonzalez called in response to the letter and was friendly, but confused about what was happening. The claims attorney explained to him that Our Company expected full reimbursement for our losses. Gonzalez made it clear that he did not have the resources to pay back the Company. He stated he would retain an attorney.

Moral Of The Story

Does Gonzalez’s decision to run up the HELOC after he lost the property to foreclosure constitute fraud? Yes! Gonzalez intentionally charged $172,622 against a mortgage on a property he no longer owned.

It can be argued that many borrowers are oblivious and don’t understand that they can’t continue to draw on a line of credit after he/she has paid it off and/or no longer live at the property. The issue is that the bank continues to solicit the borrower to spend against the line of credit by providing debit cards and checks that enable more spending!

It is imperative that our settlement agents ensure the HELOC closure letter is signed and, more importantly, delivered to the payoff lender.

It is imperative that our settlement agents ensure the HELOC closure letter is signed and, more importantly, delivered to the payoff lender. There are plenty of instances where the payoff funds are transmitted via wire transfer and the payoff closure letter is not sent to the payoff lender at all, but rather left in the file. There are also plenty of instances where the HELOC payoff statement reflects a zero balance and, subsequently, the signed closure letter is not sent to the payoff lender.

When either instance happens, one of two things eventually occurs later – the lender never closes the line of credit and continues to solicit the borrower to charge against the available balance (which many borrowers do); or the lender continues to accrue annual fees. Either way, once the property is further conveyed, encumbered or foreclosed upon – the HELOC lender is contacted to release its lien and it insists on payment in full AGAIN! Settlement agents need to do their part to protect the Company from these types of losses by sending the closure letter.

Questions or comments?  Please share below!

Mineral Rights Reservations and Residential Property

Mineral Rights Reservations & Title Insurance

The Smith’s offer has been accepted – a nice home in the suburbs, with schools and shopping nearby. The Realtor® has ordered the title report and it looks good…but what’s this? There is an exception for minerals. What does that mean? Is there gold in them thar hills? Will the Smiths wake up one morning and find an oil derrick next to the swing set in the back yard?

What’s Insured?

The Homeowner’s Policy includes very broad “mineral” rights coverage, as follows:

“This Policy insures You against actual loss… resulting from…:

“Your existing improvements (or a replacement or modification made to them after the Policy Date), including lawns, shrubbery or trees, are damaged because of the future exercise of a right to use the surface of the Land for the extraction or development of minerals, water or any other substance, even if those rights are excepted or reserved from the description of the Land or excepted in Schedule B.”

What exactly are minerals, and what can happen because of the reservation?

Ownership of land extends to the center of the earth, and that includes every substance under the surface. And of course, it’s not all just plain “dirt.” It can include many types of valuable substances. Technically oil, gas and similar substances (including natural gas, helium and nitrogen) are not minerals, but can be treated as such under some definitions – in other words, for most people, the definition probably is inclusive of anything that might be considered a mineral, unless the reservation language is explicit.

Ownership of land extends to the center of the earth,

There is a history of mining coal in some parts of western Washington, and with the price of gold at or near record highs, gold mining might make a comeback. More recent activities involve sand and gravel as well as vermiculite, gypsum and perlite.  But these areas are not widespread and residential areas are not necessarily built around them.

Ways mineral reservations might be used

A mineral reservation is a severed “subsurface” parcel in separate ownership from the rest of the land. Prior owners could have sold minerals to a third party or leased it for the purpose of extracting something and collecting rent and royalties. A former owner could have reserved minerals without expecting anything to come of it. Clearly, the owner of minerals would own them, but what that owner might want to take out of the ground could be difficult to determine, to say nothing of the right of access – the ability to actually start digging.

How title companies view mineral reservations

Mineral Rights Residential PropertiesMany mineral reservations are old and have never been actively enforced. Washington has a “dormant mineral” statute (RCW 78.22, et seq.) that allows the surface owner to attempt to terminate unused mineral rights after 20 years of nonuse. Because of the potential for constitutional challenges (and prior case law that said the surface owner can’t claim adverse possession against the mineral owner) title companies typically will not rely on the recorded affidavit to ignore the mineral reservation, but will show it along with the exception for the mineral reservation.

But, a reservation of “minerals” shouldn’t impact most residential transactions. Usually there is nothing valuable in the area. Even if that’s possible, the area probably is subject to stringent environmental, zoning and other land use laws that would preclude anyone from trying to look for or extract minerals. For this reason, title policy endorsements that provide both the owner and the lender coverage against loss due to the exercise of mineral rights are commonly offered in residential transactions. In commercial transactions or some rural areas the risk will be more carefully weighed, including reviewing whether the reservation precludes access from the surface (promising lateral access under the land only) or offers compensation for surface damage, particularly to improvements on the land.

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Mineral rights reservations and real estate

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