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Abstracting and the Unauthorized Practice of Law
by Robert Franco | 2010/04/11 |

An interesting post in the forums raised the issue of the unauthorized practice of law as it relates to title abstracting.  This is a very interesting topic with a long history that starts with the basic question - what is "abstracting?"  The function of an abstractor has changed over the years.  The line between abstracting and the practice of law has been blurred. 

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Clearly, one must be licensed to practice law.  But defining what constitutes the practice of law is no easy task.  In Ohio it has been generally defined as "the doing or performing of services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity with the adopted rules of procedure. But in a larger sense it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be pending in a court." 

The Ohio statute on "unauthorized practice" is not of much help, either.  It provides that "no person who is not licensed to practice law in this state shall... commit any act that is prohibited by the supreme court as being the unauthorized practice of law."  Thus, in order to determine what constitutes the unauthorized practice of law, we must rely on case law. 

The Ohio Supreme Court has held that "furnishing an opinion as to the condition or validity of title to real estate, whether in a so-called statement or certificate of title, falls within the realm of the practice of law."  So the pertinent question is - do abstractors furnish an opinion as to the condition or validity of title?

Years ago, abstractors prepared abstracts of title.  This was very different from the "title searching" we do today, and it really confuses the issue when we call what we do "abstracting."  So, for purposes of this blog, I'll refer to the traditional creation of abstracts of title as "abstracting," and what we do today as "title searching."

Abstracting entailed copying pertinent information from all recorded documents in a chain of title into an abstract.  The abstractor did nothing more than search the index and copy information from the documents found in the chain of title.  It included everything without regard to whether it was released, or even valid.  The practice of law came into the picture when someone, usually an attorney, examined the abstract for the purpose of giving an opinion of title.

Today, title searching entails more than simply abstracting documents.  It is more or less a hybrid of abstracting and examining.  Title searchers are expected to provide a report that strips out all of the documents that no longer affect title to property.  For example, title searches do not show released mortgages or liens, or the releases, or other documents that in the searchers opinion no longer affect the title.

The difference between "examining the title" and "searching the title" was described in a 1930 treatise as follows:

The work of the lawyer who searches the various public offices in which the records affecting title to real estate are found in order to determine the ownership and condition of a particular tract of land may properly be termed an 'examining of the title.' On the other hand, the person who searches the records with no other object than to note down in more or less brief form the instruments and proceedings found therein and to use the same in making up the abstract, his work is more properly called 'searching the title.' He does not study the facts discovered by his search for their legal effect on the title. While he examines or reads the records and prepares a digest of their contents, his work is more or less mechanical... Where his work does not include the rendering of an opinion as to the validity of the title as disclosed by his search, he can not properly be termed a 'title examiner.' While the abstract is the result of a careful and accurate 'examination' of the records, together with the instruments found recorded therein, the process, taken as a whole, must be distinguished from the examination conducted by one learned in the law and whose duty it is to render an opinion as to the validity of the title.

The change from abstracting to title searching was predominately due to the introduction of title insurance.  The unauthorized practice of law wasn't really an important concern because title companies were authorized to search the title, not to offer an opinion, but to determine its insurability.  When the title searchers worked for the title company, there was also a sense that they were not providing services to another, but were rather acting as agents of their employer in the course of conducting its own affairs. 

The explosive growth of independent title searchers made this much more complicated.  Independent searchers were providing services to another, not their employer.  This may explain the Rule being discussed in West Virginia.

A non-lawyer shall not undertake with or without compensation, direct or indirect, to advise another in any matter involving the application of legal principles to the ownership, use, disposition or encumbrance of real estate, except that, incident to his investigation of factual matters, he may give advice to his regular employer, other than in aid of his employer’s unauthorized practice of law, or to a licensed lawyer upon request of the lawyer, who assumes full responsibility for that advise.

The issue really seems to turn on whether or not the title searcher provides an opinion, or merely reports information.  The Ohio Supreme Court addressed this issue in Dayton Bar Ass'n v. Lender's Service in 1988.  The issue was whether providing property reports for a fee was the unauthorized practice of law.

The Court looked primarily at three prior holdings.  First, that a title guaranty company was authorized by statute solely to prepare abstracts of title, and was not authorized to issue an opinion thereon

Second, in an analogy to real estate sales contracts the Court applied the "simple instrument" doctrine - "the supplying of simple, factual material such as date, the price, the name of the purchaser, the location of the property, the date of giving possession and the duration of the offer requires ordinary intelligence rather than the skill peculiar to one trained and experienced in the law.

And, third, "one who furnishes to another a statement of the substance of documents or facts appearing on the public records, which affect the title real estate, without expressing any opinion as to the legal significance of what is found or as to the validity of the title, is not engaged in the practice of law."

The Dayton Bar argued that the use of terms such as "Present Title Holder" and "From Whom Acquired" indicated an expression of opinion.  The Court held that the use of legal terms of art as headings was not on its own an expression of an opinion.  It was also argued that exercising discretion in determining whether to report released or canceled liens was also the expression of an opinion.  But, the Court found that Lender's Service provided clear instructions to omit any lien for which a release was filed, and they prohibited their searchers from examining the validity of such documents.  Thus, the court found that providing property reports of this type was not the unauthorized practice of law.

The Lender's case is still not dis-positive on the issue.  The property reports described in the case probably aren't what most people are providing today.  They boiled it down to very mechanical procedures and made it a simple case of filling out a form. And, I believe that in 1988, Lenders Service employed their title searchers - rather than using independent searchers.

So, let's consider whether or not title searchers today employ "ordinary intelligence" or if they must utilize the skill of one trained and experienced in the law.  If only ordinary intelligence is required, anyone can be a title searcher.  I think most people would agree that something more than ordinary intelligence is required to properly prepare a modern title search.  Many people on our forums have noted harm that is being caused by inexperienced title searchers.  Though I don't believe that a law degree is necessary to be competent to search titles, certainly a title searcher must know something of the real estate laws that are applicable in the state in order to know what information to report.

I think the potential liability of a title searcher should be considered in this analysis.  Consider, for example, the review of a foreclosure case in the course of searching the title.  A true abstractor would have accurately documented the case with information necessary for the examiner to determine that good title passed to the purchaser at the sheriff's sale.  Today, a title searcher is not expected to provide any information if the searcher is satisfied that the case was properly handled.  A title searcher should be checking to ensure that everyone with an interest in the real estate was properly served and that the court ordered all of the valid liens released.  If a lien was not disclosed during the course of the foreclosure, it would survive the judgment entry and a title defect would arise.  By not showing any information from a foreclosure case, isn't the searcher providing an opinion that the purchaser acquired good title?  And if that turns out not to be the case, wouldn't most expect that the title searcher would be liable for any claim that arises?  It seems that everyone recognizes that a searcher is expected to exercise some judgment and opinion in preparing a title search and that is what crosses the line in to the unauthorized practice of law.

Basically, if all you are doing is writing down what you see in the public records, you are not engaged in the practice of law.  However, in my opinion, if that is all you are doing, you are a poor title searcher; unless, of course, you are preparing full abstracts of title (which I doubt these days).  More likely than not, title searchers are necessarily providing some opinion in the course of preparing a title search.

Thus, I think in the vast majority of situations today, title searchers are technically engaged in the unauthorized practice of law, at least to some degree.  I don't believe that this has been an issue in many states because attorneys would most likely rather not spend their time digging through records at the courthouse.  In some states, however, I think that attorneys feel that they have lost what used to be a staple of a real estate law practice.  Most certainly there is some "protectionism" going on, but this doesn't mean that they aren't raising a valid concern.

It has been widely recognized that search standards have declined drastically over the past decade, or more.  While this is not the fault of the searchers, it would most likely not have occurred if attorneys were still involved in the processes.  Title companies and vendor management companies would not have been able to force their lax standards, and low fees, on licensed attorneys.

Ultimately, a finding that title searching is the practice of law could actually be a very good opportunity for professional, experienced title searchers.  But what would have to happen is for title searchers to lobby for legislation that specifically authorizes them to engage in title searching, as well as create meaningful licensing requirements and standards that must be followed.

As I previously stated, I don't think a law degree is necessary to search titles.  However, the state should be regulating it to ensure that only those who are well qualified, and well versed in the real estate laws, are permitted to engage in the profession.  It is reckless to permit just anyone to provide a title search.  I think we are seeing that now - as ALTA has stated, more than 1 in 3 title searches reveals a defect.  Could that possibly be because an inexperienced searcher, told to follow lax standards, didn't turn up the problem at the last transaction?

This kind of regulation would be a blessing for title searchers.  Clients would no longer be dictating sub-par search standards and they wouldn't be able to hire any inexperienced layperson willing to work for ridiculously low fees.  If those title searchers were forced out of the business, licensed searchers would have more negotiating power to demand reasonable compensation for their work.

If states begin to recognize title searching as the practice of law, one of a few things would happen.  First, title companies could go back to employing their title searchers.  It would most likely not be considered the practice of law for title companies to search titles in order to determine insurability because there is no advice or opinion being supplied to another.  Of course, this would force independent title searchers out of business.

Second, the work would all go attorneys, or their employees who would be hired to search titles under their supervision and control.  Again, this would put independent title searchers out of business.

Third, the laws could be changed to allow title searchers to engage in the business of title searching subject to state regulation and control.  Clearly, this would be the preferred option for title searchers, but it would require them to be proactive and lobby for such legislative changes.

I'm sure I'll draw a lot of criticism for suggesting that title searching is the practice of law.  I welcome all comments.  But, I don't think that title searchers can have it both ways - either title searching requires only "ordinary intelligence," which would leave the door open to fly-by-night, inexperienced searchers who will undercut the fees of professionals, or it requires special knowledge and expertise in real estate law, which infringes on the practice of law.




Categories: Abstractors, Legislation, Opportunities, Title Standards

3347 words | 10831 views | 14 comments | log in or register to post a comment

Devil's Advocate

  I would like to speak on one point made in the blog:  the issue of who is competent to search title.

  With an eye toward history, I would note that the Grantor-Grantee Indices of Official Records of the vaiorus Parishes and Counties were set up in an alpha-numeric manner in order for them to be accessible to the Common Man using his Common Sense, or what was often referred to as "horse sense" back in the day (17th and 18th Centuries).  As the Union grew, each new state adopted these same standards, using basic library science to create alpha-numeric catalogues of books in order to keep and preserve land matters for future generations.

  This was in days before typewriters or computers.  People with a elementary education, which was the completion of 5th Grade or "elementary  school", could hold and own land by signing a deed with their hand and mark before a notary or other witenessing party. 

  The completion of 5th grade elementary school or it's equivalent, was sufficient to provided the fundaments of the 3 R's (Reading, Writing and Arithmatic); as necessary for people to operate in "civil society", meaning society governed by civil codes and statutes.  This is an important thing to note, as the difference between a Freeman operating at the Common Law, and a member of the public exercising Civil Rights in a Civil environment like a Recorders Office, is a meaningful distinction to this day.

  To bring things forward to modern times, it is important to note that the records only feel more complex as there are more of them and the rate at which the number of records increases is in proportion to the growth of the American population and a respones to the changes in lifestyles that civilization brings with it. 

  A second point to note about our current records system is that it creates constructive notice in many cases of matters pertaining to property, especially land.  In this regard, the notice is a general one made to the public at large, and, as part of a civil system, creates an obligation on the part of all members of the public, to remain aware of such matters.  This means that the posting of the notices in the indices, as public matters, the reposting of the same in newspaper classifieds  (as with Notices of Trustee Sale), the delivery of notice by postal delivery to the debtor (liens), the posting of legal matters at the county courthouse (as with Lis Pendens), the delivery of process service to some, and the posting of other notices at the property, are all manners and ways of informing specific parties of interest, in simple American English, about the matters at hand. 

  None of this is intended to be arcane, runic or obtuse, but rather direct and clear as to the reading, intent and intrepretation;  in other words, sufficient to the person with horse sense and an elementary education to understand.

  As such, I see nothing in the system which prevents anyone with a 5th-grade "diploma" and Common Sense from doing this job.  However, the prevelant lack of Common Sense is something I too have decried in the forums.  While most $10 competitors have more than a 5th grade education, most also bear an unwillingness to exercise good sense. 

  I've got a high school education and a few years of community college and have been in business 10 years, with another 15 in the title industry before that.  I am not greatly educated, but I assure you that I bear more in the way of Common Sense than many who have come before me, or others that I've outlasted. 

  Today's Common Man is well versed in the ways of being a corporate consumer with a dumbed-down government education, but he or she is certainly not barred by any industry standards, state statutes or other operative principles from starting a business in abstracting and doing the job right.  I have, so it can work for anyone.

by William Pattison | 2010/04/12 | log in or register to post a reply

Abstractors VS: Attorney's

This is crazy, does the Attorney's want to spend hours searching title out of the court houses? Keep in mind some of these searches take two or more days to complete. which means they would not have time to do what they are there to do, be in the Court Room. People say in Florida it is an Attorney's state that does their own searches, which means the Lender's has to wait over a year to actually get the foreclosure done, which means the Debtor basicially lives free and clear, until the foreclosure is complete. Abstracting is not easy, and let's talk about Abstracting, we are not Abstractor's we are the examiners. We are the ones that prepares the Title searches, examine the documents and eliminate what is needed. After all try and run Jose Gonzales, give it whirl. We are not praticing the law, we are merely examining these property so the Law can do their job....

by Kelly Schuler | 2010/04/12 | log in or register to post a reply

William: I think you are missing my point...

You seem to be arguing that it takes nothing more than "common sense" (or "ordinary intelligence" as the courts put it) to find records in the county's index.  I would agree.  However, there is much more to title searching today than simply finding documents.  Today a title searcher must be able to distinguish between the relevant information that must be shown on the report and the expired, released, invalid, or otherwise irrelevant information that can be omitted from the search.

If you are showing EVERYTHING you find in the index (compiling a traditional abstract), then you are probably right, anyone with common sense can be an abstractor.  However, I doubt that is the case.  Most likely, you are exercising your judgment and providing an opinion as to which documents to show because they impact the status of title.

I used to think that anyone could be an abstractor.  But after having attempted to train many who couldn't cut it, I have changed my mind.  Some people just don't have the ability to understand the real estate laws necessary to make those kinds of judgment calls. 

Here is an example.  I have had clients ask why we have showed oil and gas leases when there is an affidavit of non-production of record signed by the homeowners.  They argue that the leases are only valid "so long as oil and gas is being produced," and that the affidavit is evidence that the lease no longer affects title.  They tell me that "other abstractors" omit such leases from their reports.  I explain that (1) the affidavit is self-serving and is of no legal affect, and (2) that just because there is no well on the property does not mean that a well on an adjacent parcel is not extracting oil or gas from beneath the subject property.  Both I and the "other abstractors" are exercising our judgment and offering an opinion as to whether the lease is an encumbrance on the title.  Making that determination necessarily requires some knowledge of the real estate laws of the state.

It seems clear to me that determining which instruments to show on a title search entails more than common sense or ordinary intelligence.  Thus, I believe that there is some practice of law involved where such reports are prepared for the use of third-parties.

by Robert Franco | 2010/04/12 | log in or register to post a reply

Thank you, Kelly...

You just made my point.

Abstracting is not easy, and let's talk about Abstracting, we are not Abstractor's we are the examiners. We are the ones that prepares the Title searches, examine the documents and eliminate what is needed.

I think you would agree that "not easy" means that it requires more than ordinary intelligence.  And when you say "we are the examiners," it is important to note that the difference between "abstracting" and "examining" is exactly what makes it the unauthorized practice of law.  I agree that today abstractors are expected to conduct some level of examination and as the 1930 treatise clearly states "the process, taken as a whole, must be distinguished from the examination conducted by one learned in the law."

I do not mean to imply, as I stated, that a non-attorney cannot be competent to search titles today.  On the contrary, there are many good title searchers that know more about real estate law than many attorneys.  But, without a statutory provision authorizing abstractors to do this, they are engaged in the practice of law to some extent.

by Robert Franco | 2010/04/12 | log in or register to post a reply

Not Easy to Abstract

  I  agree that the Common Man-on-the-Street in this modern day, is not well versed in those critical thinking skills that are necessary to handle more than a search for porn on the web.  He is lost in a library and wandering aimlessly in Recorders Office facilities.  I see it daily.  I've tried to train many by being a "Good Samaritan" on my own time by helping members of the public, and I too have trained many wanna-be researchers over the years.  Most fail and move onward, never to return to this again.  However, because an effort is hard, does not mean that it should not be undertaken. 

  I will not draw a distinction between "Common Sense" and critical thought, as they are both aspects of the same logic processes and must be looked at as a necessary skill set for survival in a civil environment.  The dumbing-down of public education has created this situation.

  However, I do abstracting.  I stand by that, absolutely, and for good reason;  foremost being that I provide abstract reports to my clients.  I do not make determinations by examining the state of title.  I report from the public records the current status of title starting with that shown on the current Assessor Rolls, and I clearly disclose that it is derived exactly from that source.  I do not draw conclusions or make determinations.  I search for documents pertaining to the owners names of record.  I read the American English words on the documents and keep a dictionary (an American English dictionary, not a legal dictionary) available to ensure my understanding of ever word.  Papers bearing words which correspond to the property of my client are abstracted to my report.  I do not exclude mortgages unless explicitly directed to do so by my client and even then I still provide an addendum showing all such terminated matters and their corresponding releases.

  I don't see how a law can make me anything more than watched-over, subjected to complaints by those competitors who would abuse the system, subject to additoinal oversight and hassle by state agencies seeking to exercise authority they still wouldn't have, or subject to added annual fines and fees and costs for special licensure.  All of which are added costs that get passed on to the consumer, your client. 

  Why not spend more time having a watchdog agency oversee the integrity of the records by correcting material flaws and omissions,  ensuring fast and easy access to the records, getting more record indices online for greater availability, and otherwise tightening recording standards so that things are not missed by the recording staff?  Seems like it's better to regulate that which is already within the realm of government (existing public agencies); and to do so with more efficiency, than currently is happening.  It sounds like you want to create a new bureaucracy to enforce a new power grab by a few;  thus turning a free-market industry into a regulated one which is indeed a form of socialism that I cannot support.  Too much nanny-state for me.


by William Pattison | 2010/04/12 | log in or register to post a reply


You are welcome, both of us agree... I also show oil and gas leases. If the client wants to ignore it, that is fine as long as it was reported on the Title search. I think we both agree on many aspects. Well done. Have a great day..

by Kelly Schuler | 2010/04/13 | log in or register to post a reply

I'll take your word for it, William...

If you say you are preparing abstracts, I'll have to take your work for it.  But, please tell us how you can do that for the fees that clients are willing to pay today.  None of our clients would be willing to pay enough to report EVERYTHING in the chain of title for a property.  The search would be several inches thick if we showed everything from the patent forward and it would take several days to properly abstract EVERY document. 


by Robert Franco | 2010/04/13 | log in or register to post a reply

It's the times

Truth is, if the entire industry didn't fall off the tracks in the last couple of years with more and more attorneys in desperate need of work, this discussion, though informative and interesting, wouldn't even be necessary.   Boom and Bust is the story of America.  When real estate turns around-and it eventually will-the lawyers will be on to more profitable enterprises, and the tedious task of examining a title will be safely and securely returned to the hands of those possessed with an eye for detail and a capacity for deductive reasoning, and should the industry gain a few licensed attorneys who for some reason decide that examining a title is what 3 years of law school was really all about,  all the more better.

But until that day arrives, expect more legislative and judicial interference masked as efforts of reform.

by Vincent Racaniello | 2010/04/13 | log in or register to post a reply

point made

That was said very well, with the economy the way it is, the Attorney's has time and now wants to complain. The economy will get better and the same attorney's complaining now, will request our services. Let's just give it time and they will see. I really never seen an Attorney wanting to spend hours on Examing reports.

by Kelly Schuler | 2010/04/15 | log in or register to post a reply

Abstracts of Title

Robert, here in Western New York Abstracts of Title are a common practice.  They are specifically  requested in the Sales Contract.  The language in the Contact is:

10. Title and Related Documents:.Seller shall deliver at Seller’s expense:
A. At least 15 days prior to the closing date, to Buyer or Buyer’s attorney, (i) a draft of the proposed deed, (ii) abstract of title, fully guaranteed tax and U.S. Court searches, all dated or re-dated after the date of acceptance, with a local tax certificate for Village or City taxes, if any (all of which shall be continued to and including the day of closing at Seller’s expense), and (iii) an instrument survey map dated after the date of acceptance, certified and prepared to meet the standards of the Monroe County Bar Association and Buyer’s mortgage lender;
Each County in Western, Central and Upstate New York has a specific Bar Standard (as distinguished by the local Bar Association) determining how far one must go back to complete a Full Abstract of Title.  This varies from 40-100 years depending on the County. As you indicated they are sometimes quite time consuming to complete and are sometimes very thick.
It is also common practice for the Abstract Companies to "store or hold" an Abstract for a homeowner.  When the time comes for the homeowner to sell their property the Abstract Company holding the Abstract will either "Re-date" the Abstract; or hand over the Abstract to another Company who is working with the Sellers Attorney.  It is customary for the seller to direct who will complete the Abstract up here and to pay for the Abstract.
by John Sauers | 2010/04/19 | log in or register to post a reply


Well, it does take many days.  I don't promise any product more than 2 weeks out at minimum.  My clients are not title companies, unlike many of your clients;  that is quite evident.

Our reports are very thick, so this does not seem to be at issue for us and you are correct on this point.  Reread my many posts on good title practices and you can see what I mean.

My clients typically pay $1k-2k per report, so there are people willing and able to pay this for Bay Area lots, no question in my mind since their checks cash through as good.

I do about 3 or 4 projects per month at most, and typically do a few minor / side jobs in the process too. 

I work 9 hours without lunch to go home and work into the evening hours and on weekends, just like I've seen you and many  others in our community do.  I've done so with one vacation in 10 years (for my wedding), so I'm not asserting that it's easy, but the work is rewarding and I've never once had a single claim in 10 years in business. 

Really, people DO do abstracting to this very day.  I assume that you do not do so, based on your incredulous reply. 

by William Pattison | 2010/04/20 | log in or register to post a reply

Thank you, John.

I have heard that true abstracting is still alive and well in parts of NY.  It is pretty rare in the rest of the country where clients are only willing to pay $45 to $150 for a title search.  In most cases, title searching is very different from abstracting.  I'm glad to hear that real abstracts are still used in some parts of the country.  Though its just not practical in most situations today, I think its great that are still people out there that know how to do them.

by Robert Franco | 2010/04/21 | log in or register to post a reply

Lawyers Don't Want This Business

From 1936 until the State Bar Association revoked the agreement, the California Land Title Association had maintained an agreement as to what activities, if undertaken by title insurance companies, would not be treated as an unauthorized law practice. (41 State Bar J. 156 (1966)). The agreement was effectively revoked as of January 18, 1980. Some lawyers referred to the agreement as the “Bar Treaty”. The revocation coincided with the advent of legalized advertising by members of the State Bar.

The other well-known "gentlemens' agreements" are the Land Title Examination Standards that appear in more than 15 states. Iowa's state bar monopoly sort of started the idea in the 1940's. A nationwide survey of those standards is compiled and diligently updated by Kraettli Q. Epperson, Attorney-at-Law, OKC, OK Phone: (405) 840-2470;

Lawyers learn a lot about future interests and the Rule Against Perpetuities in law school, but their faculty is most often unprepared to handle the varieties that state law problems present in the field of real property. As a result, the average lawyer is a little superstitious about real property law. Error and Omissions coverage in this area is treated as an extra hazardous risk.

Patton on Titles, Third Edition contains a lot of helpful background on these things. I think that lawyers are happy call what we do "paperwork" and they complain about how long it takes, and how many errors are committed. But out here, lawyers prudently avoid this work - even if they could use a title plant resource to get it done. the exception is the specialists in water and oil & gas interests who do roll up their sleeves.

Don't forget that the title insurance business had its very beginning in the abstractor's error in Watson v. Muirhead.

by Lawrence Lacombe | 2010/04/25 | log in or register to post a reply


"Don't forget that the title insurance business had its very beginning in the abstractor's error in Watson v. Muirhead."

Actually the abstractor, Muirhead, found the lien but then got bad advice from a lawyer regarding whether or not it encumbered the title.  He was sued because he passed on the lawyer's bad advice to his client.

by David Jenkins | 2010/04/30 | log in or register to post a reply
Source of Title Blog

Robert A. FrancoThe focus of this blog will be on sharing my thoughts and concerns related to the small title agents and abstractors. The industry has changed dramatically over the past ten years and I believe that we are just seeing the beginning. As the evolution continues, what will become of the many small independent title professionals who have long been the cornerstone of the industry?

Robert A. Franco



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