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D L's Blog

Loan Policies on the Flip Side
by D L | 2009/08/20 |

I work for a Mortgage Investment Company who owns and holds mortgages nationwide. As owners of the mortgages that we purchase and are assigned to us, we are also therefore assignee on the Loan Policies.

In a case in which there was a total failure of title, what would we need to do to prove a loss and file claim?
 

D L's Blog ::

In a case in which there was a total failure of title, what would we need to do to prove a loss and file claim?
An example might be that a property is purchased from an estate and then mortgaged. Unaccounted Heirs of the estate later sue the present owner for complete title and win. The Title fails, ownership is reverted to the Heirs and our mortgage is subsequently washed out. What would we need in order to prove our loss and collect on a claim?
 
Another example would be that a property is purchased with a fraudulent ID used at closing. It is discovered that the ID belonged to a person who died before our closing occurred and was seemingly used with the intent to collect cash from the mortgages. We hold the second mortgage. The first lien forecloses and takes the property. There was no way to collect or enforce our lien from the first day onward. Do we have a claim since we provided the loan based upon assurances from the Title policy as to the condition of title that could not be supported?
 
I am not asking for legal advice. I only want to know what the process would likely be in a fictitious situation to further my understanding of Title related matters. On the surface this may seem like you would be giving up the keys to the store or telling me the industry secrets. In reality, I order a whole lot of title work in every state directly from searchers and agents for many different purposes based on the situation presented in each mortgage account. I order basic searches to discover present conditions and I order Title Insurance for new loan closings and REO sales. We also own the loan policies of every loan we purchase. It is a very rare thing when a Title claim incident occurs because I screen the professionals that we work with for the best that I can find. Claims were more likely to occur at the origination phase of the subprime quickie loans that later get trickled down for me to mop up after we purchase a loan with a problem. I admire the pursuit of perfection carried by the Title Industry and I support and defend you from coast to coast in that regard. However, there are times when legitimate claims arrise and it would be better for all if the method to resolve those issues was better understood. It would be nice if some of you would be kind enough to share your basic knowledge of claims with me. Thank you in advance.
 
Dave



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Good questions, Dave

I'm not sure whether any title agent could answer your questions with complete confidence, as the claims process is really the domain of the title underwriter.  As far as the process goes, I am not privy to any trade secrets, if there are any.  So no worries there about spilling any beans.  You can learn a lot just by reading the policy jacket and schedule B of the policy to see what's covered and what is not.

The hypothetical examples you provide seem unlikely to me but, I guess, possible.  In the case of the sudden appearance of heirs claiming a right to the property, I have a couple of thoughts.  First, the title agent would not insure title out of an decedent's estate without first having examined the concluded probate case.  That would have a judge's seal of approval in that any heirs were properly sought and accounted for.  Even if one was missed, the remaining heirs will have conveyed their rights to the property and the latecomer(s) would only be able to claim a right to a fractional interest in the property, if any.

In this case, I believe the best move on your part would be to notify the title underwriter as soon as you have knowledge of the competing claim.  Timely notice of a possible claim is always important, as the underwriter may find it in their intersest to defend and/or to cure any defect to mitigate their loss.  And they reserve that right.

In the case of the fraudulent purchase, I think the seller would need to be in on the scam also, and would have also had to have acquired the property fraudulently, and/or have an appraiser complicit in the scheme also.  Schemes such as this have worked, but have required crooks in pretty much every aspect of the sale, including mortgage broker, appraiser, real estate agent, title agent, and I don't know who all.  Otherwise it's a lot of different people who will have to be fooled.  If your second was closed and insured separate from the purchase, they would likely have had to get the dead guy's ID past two different notaries.

In any case, if the title policy insures that a decedent holds title to the property, I would say they have problems.  One out for the title company may be that, after the REO sale by the first mortgage holder who forclosed, there were no funds left to pay a second mortgage holder anyway.  So, you did not suffer any loss that you would not have suffered if the lien were perfected.  Depending on the circumstances, the title insurer could have plenty of other parties to answer to.

Again, the sooner you notify the better.  If your failure to notify in a timely manner cost them an opportunity to mitigate their loss, it could affect your claim.

If you want to get a better idea of some different title claims, and how they were resolved, get a hot cup of coffe in the morning and have a look at First American's Claims Chronicles.

 
by Patrick Scott | 2009/08/22 | log in or register to post a reply
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