ATG Members and Agents

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1 TO: FROM: ATG Members and Agents Henry Shulruff DATE: March 15, 2006 RE: Illinois Department of Financial and Professional Regulation Informational Handouts 1-06 and 2-06 Title Insurance Agent Requirements On February 23, 2005, the Title Insurance Section of the (DFI) published the attached Informational Handouts. We are required to distribute these Informational Handouts to all ATG agents. The Handouts are intended to clarify the policies distributed last year (referred to as Bulletin 1-05 ), which were intended ensure that title insurance agents comply with state and federal regulations requiring that title insurance agents make determinations of insurability in order to be registered as and receive fees for conducting the work of a title insurance agent. Informational Handout 1-06 reinforces that (t)he issuance of a commitment by a title underwriter or service company in any shape or form prior to the determination of insurability of title by the title insurance agent is prohibited and subject to fine. Informational Handout 2-06 clarifies certain rules regarding controlled business title agents. Specifically, the DFI asserts that an affiliated business entity, such as a Realtor, lender, or attorney with an affiliated title agency cannot require the consumer to place a title order with its affiliated title agent as a condition of using its service, nor can it establish a monetary penalty if the consumer does not place the order with its affiliated title insurance agent. The Handout also prohibits affiliated businesses from maintaining a preferred list of service providers who expressly or implicitly get on the list by directing business to a particular affiliated title insurance agent. We continue to work with regulators at the state and federal level to identify required use and preferred list violations and encourage you to contact us with information on violations of these policies. In response to Bulletin 1-05, ATG revised its Title Services Complete program in the Chicago area, Champaign, Metro-East, and for NLT Title to ensure compliance with the state s requirements. We believe the Title Services Complete program complies with the department s policy. Please review the DFI letter from Mr. Stirmell, Informational Handout 1-06, and Informational Handout 2-06 at your earliest convenience. If you have any questions or comments and you practice in the Chicago area or an area serviced by NLT Title, please feel free to contact me at or your service company directly. If you practice in a downstate community, please contact Jerry Gorman at As always, we thank you for your business and your continued support of Attorneys Title Guaranty Fund, Inc. Henry Shulruff Senior Vice President

2 Illinois Department of Financial and Professional Regulation ROD R. BLAGOJEVICH Governor DEAN MARTINEZ Acting Secretary GINA M. DeCIANI Acting Director Mr. Jerry Gorman Vice President and Counsel Attorneys' Title Guranty Fund, Inc Windsor Place P.O. Box 9136 Champaign, IL Re: Informational Handout 1-06 Informational Handout 2-06 Dear Mr. Gorman On July 9, 2005 the Department issued Bulletin No. 1-05, Title Insurance Agent Requirements. In addition to Bulletin 1-05, a copy of Appendix B to Part 3500 of RESPA, Illustrations of Requirements of RESPA was included with the cover letter that went to all title insurance companies and agents. A review of the search products being sent to title insurance agents have revealed compliance issues, thereby necessitating the release of the Informational Handout 1-06 dated which is enclosed with this letter. Bulletin No also discussed accurate disclosure of fees to the consumer and stated as follows: In order to give the consumers an accurate disclosure of the fees and parties involved in the real estate transaction, and in compliance with applicable statutes, the HUD-1 or HUD- 1A Settlement Statement must disclose the name of the entity/individual receiving the funds. For example, in the case where a registered title insurance agent obtains services from a service company also registered as a title insurance agent with the same licensed title insurance company or receives services directly from the title insurance company, the HUD-1 or HUD-1A Settlement Statement must show the title insurance fees going to the registered title insurance agent, not the service company or title insurance company, regardless of how the collection of fees and payment thereof is actually handled as between the parties. In reviewing several HUD-1 and HUD 1-A Settlement Statements, it was discovered that some of the service companies and title insurance companies show their name as receiving the title fees, not the registered title insurance agent. 320 West Washington Street, Suite 348 Springfield, Illinois (217) Fax No. (217)

3 Title Insurance Industry Letter Page Two During our visits of title insurance agents, service companies and title insurance companies, the accurate disclosure of fees is still a problem. For example, if an attorney is a registered title insurance agent, whether serviced by a service company or a title insurance company, the title insurance fees should be shown as going to the title insurance agent. Some HUD-1 Statements reviewed by the Department show the fees going to the service company and some statements show the title insurance fees going to the title insurance company and the attorney is listed on the HUD-1 statement under title examination fees. If the attorney is shown as receiving funds for title examination and the title insurance company is shown as the title insurance provider on Line 1108, then the attorney is really not a title insurance agent and thus should not be considered a title insurance agent. Under this scenario, the relationship between the title insurance company and the attorney is one of employment, not a registered title insurance agent. Also enclosed, please find Informational Handout 2-06, dated, dealing with Controlled Business Arrangements. In visiting the title insurance companies, title insurance agents and title insurance servicing companies regarding the determination of insurability of title issue, we discovered many compliance issues as it relates to controlled business/affiliated business arrangements. Informational Handout 2-06 addresses these issues, provides illustrations of some non-compliant arrangements, and reminds the title insurance companies of their obligation to monitor and oversee the operations of their registered title insurance agents. Additionally, in my cover letter dated July 13, 2005, the Department stated that compensation to the title insurance agent must bear a reasonable relationship to the work performed so as not to be in violation of Section , Standards of Conduct, of the Title Insurance Rules promulgated by the Department and RESPA. While the Department has no rate regulation authority, the Department, through its recent title insurance agent/service company visits, has reviewed some programs where the compensation in some of the title insurance agent programs could be considered excessive. The Department would strongly suggest that each underwriter review the compensation of its title insurance agents in relationship to the work performed by the title insurance agent in the real estate transaction. The Department requires that the licensed title insurance companies immediately advise their personnel and their registered title insurance agents of the requirements set forth in these Informational Handouts and cover letter. A copy of this letter, along with a copy of the Informational Handout 1-06 and Informational Handout 2-06, must be sent to all the registered title insurance agents. Sincerely, HES/bkf Enclosures Harry E. Stirmell Supervisor Title Insurance Section

4 Illinois Department of Financial and Professional Regulation ROD R. BLAGOJEVICH Governor DEAN MARTINEZ Acting Secretary GINA M. DeCIANI Acting Director TITLE INSURANCE INDUSTRY MEETING INFORMATIONAL HANDOUT FEBRUARY 23, 2006 Since the issuance of Bulletin 1-05 on July 9, 2005, the Department has reviewed a number of search products issued by either title insurance underwriters or service companies to title insurance agents. From this review, the Department has determined that a misunderstanding exists as to what information should be furnished to title insurance agents for the determination of insurability of title. Bulletin 1-05 explains the requisite information to be furnished to the title insurance agent for such determination. The Bulletin was premised on the title insurance agent receiving raw data and examining the data for the determination of insurability of title. The Department s review of certain search products indicates preprinted exceptions (pre-examination) are being created in conjunction with the search package. While the use of a prior title insurance policy (including a commitment that is substantiated by the issuing company s own prior file where the file did not go to final policy) may be utilized as a starting point (starter file) for the search and included with the search package as an aid for the purpose of the determination of insurability of title, the creation of preprinted exceptions as a pre-examination may not be utilized. The use of a starter file is acceptable only if it is used as a starting point for a title examination. Some of the products that have been reviewed indicate that some in the title insurance industry have changed the meaning and design of the starter file to include events/information that have occurred since the last title insurance policy was issued (or commitment as stated above). Any starter file that includes information or changes that have occurred since the previous title insurance policy (commitment) date will be considered already examined and therefore in violation of Bulletin 1-05, the Title Insurance Act and RESPA. 320 West Washington Street, Suite 348 Springfield, Illinois (217) Fax No. (217)

5 TITLE INSURANCE INDUSTRY MEETING INFORMATIONAL HANDOUT In addition, in reviewing the title searches sent to title insurance agents by the title insurance underwriters and service companies, the Department has found that some title insurance agents are being sent a preliminary title commitment with the heading, title search, basically requiring the title insurance agent to merely sign and return without doing the proper examination. The issuance of a commitment by a title insurance underwriter or service company in any shape or form prior to the determination of insurability of title by the title insurance agent is prohibited. The Department will be examining/auditing title insurance agents in the near future to establish compliance with the foregoing requirements. The search package must contain raw data and may not contain preprinted exceptions unless the exceptions are contained in a prior title insurance policy (commitment) included with the raw data search. A title insurance agent must make a determination of insurability of title based upon the search product as outlined. If the search product does not comply, the title insurance agent and the title insurance underwriter or service company will be in violation of the Illinois Title Insurance Act and subject to a fine of $1, per offense as set forth in Section 23 of the Act. In addition, the title insurance agent and title insurance underwriter and/or service company may be subject to additional sanctions by the Department. HES/bkf

6 Illinois Department of Financial and Professional Regulation ROD R. BLAGOJEVICH Governor DEAN MARTINEZ Acting Secretary GINA M. DeCIANI Acting Director TITLE INSURANCE INDUSTRY MEETING INFORMATIONAL HANDOUT FEBRUARY 23, 2006 CONTROLLED BUSINESS ARRANGEMENTS In Bulletin 1-05, issued on July 9, 2005, the Department of Financial and Professional Regulation,, cited the statutory definition of Title Insurance Agent in Illinois. In the Department s investigation of practices in conjunction with Bulletin 1-05, the Department also reviewed many of the controlled business title insurance agents that have been registered by title insurance companies. Controlled business arrangements/agents will always bear much scrutiny from the Department and HUD. The controlled business title insurance agents must determine the insurability of title in order to receive compensation as a title insurance agent under the Title Insurance Act. The controlled business title insurance agent cannot place an order with a title insurance company or another title insurance agent, receive a search, have an unrelated third party determine insurability of title and receive compensation for the service. The controlled business title insurance agent has not performed a core title service, is not entitled to receive compensation, and is in violation of the Rules of the Department and RESPA. 320 West Washington Street, Suite 348 Springfield, Illinois (217) Fax No. (217)

7 TITLE INSURANCE INDUSTRY MEETING INFORMATIONAL HANDOUT CONTROLLED BUSINESS ARRANGEMENTS Title insurance companies registering these controlled business title insurance agents must perform their own due diligence to insure that the title insurance agent being registered will be determining insurability of title as required. A legal entity registered as a title insurance agent, which does not have an office or employee, is highly questionable. As an example, there has been a proliferation of L.L.C.s registered with the Department. It has been discovered, that in a number of cases, multiple L.L.C.s were operating out of the same address or do not have offices at the address given on their title insurance agent application. In addition, some of these entities have one individual performing the determination of insurability of title for multiple L.L.C.s. All registered title insurance agents must have their own employees, offices, telephones, detailed expenses, etc. The title insurance company who registers these entities should be monitoring these situations to insure that the entities are title insurance agents as defined by, and in compliance with, the Title Insurance Act. In the controlled business title insurance agent situation, the affiliated business wants the title insurance to flow through its title insurance arm. An affiliated business entity (the producer of title insurance business) cannot require the consumer to place the order with its affiliated agent as a condition of using its service, nor can it establish a monetary penalty if the consumer does not place the order with its affiliated title insurance agent. Similarly, a controlled business entity cannot maintain a preferred list whereby consumers must use the services of persons or entities on the preferred list as a condition of using its services. Additionally, a preferred list cannot be maintained by the affiliated business entity where the condition for being on the preferred list is expressly or implicitly so that the business will be directed to a particular affiliated title insurance agent. This violates both the Title Insurance Act and RESPA, and will be dealt with by the Department accordingly.