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The Unique Conduct of Mortgage Closings in California Amid Concerns Over Fraud

nationalmortgageprofessional.com | October 29, 2015

By Andrew Liput

According to figures published by the Federal Bureau of Investigation (FBI), the Financial Crimes Enforcement Network (FinCEN), CoreLogic, Interthinx and LexisNexis, based upon filed SARS reports and other available data, California has been cited in the top 10 fraud states nearly every year. In 2009 and 2010, California was third in the nation for the most mortgage fraud incidents. In 2011 and 2012, California came in seventh out of 50 states. In 2013, the state improved to 10th place, then in 2014, crept back up to second place. California is a large state, with many investment properties, diverse communities and a large and diverse housing stock, which ensures that it will also be a target for mortgage fraud.

California allows several different parties to handle and participate in a property's escrow and closing process. Escrow companies licensed by the state's corporation commission are the primary agents allowed to handle California real estate escrow and closings, however, property title companies frequently handle real estate escrow and closings and attorneys and real estate brokers may also be involved. In some instances California-licensed real estate brokers can handle escrow and real estate closings for their clients.

Who may conduct a closing may also differ geographically. In Northern California, property title companies traditionally handle escrow and closing activities. Southern California real estate processes are different, however, in that escrow companies as well as lenders deal with escrow and closing services. However, California is so large that the selection of escrow and closing services providers can vary even from county to county.

When fraud occurs, the State of California encourages government reporting however the ability to recover for losses when fraud has already taken place is limited. Escrow officers are required have a stated $25,000 net worth and to maintain a $125,000 fidelity bond as well as a $25,000 surety bond. Upon initial application, escrow officers must complete a fingerprint process and a criminal background check. It is performed only once upon licensing; there is no ongoing monitoring or annual checks conducted. In a state where the current average home price is $393,000 (according to Zillow) and the average mortgage is $310,676 (Lending Tree) these protections are helpful, but will not prevent fraud nor cover a significant lender loss.

Attorneys are licensed when admitted to the bar and should be insured, however malpractice insurance is not required in California, it is only recommended. Title agents who are not direct employees of an underwriter must maintain a $25,000 surety bond and are issued closing protection letters however the CPL does not cover all fraud incidents such as conspiracies and theft of NPI.

Of further concern to lenders in California is the perceived lack of a legal duty for closing agents to actually report fraud even if they have actual knowledge that it is taking place. In 1999, in Vournas v. Fidelity National Title Co., the California Court of Appeals held that settlement agents have “no duty to police the affairs of a lender,” and have no obligation to “report fraud.” Similar results were reached in Axley v. Transnational Title Ins. Co. and Lee v. Title Insurance & Trust Co.

CFPB vendor management rules require lenders to adopt policies to evaluate and monitor anyone who handles their documents, funds and borrower NPI for risk, not simple rely upon licenses and insurance. California lenders are quickly adopting new vendor management solutions to evaluate and monitor risk for closing professionals to deter and prevent fraud and the threat of harm before it occurs.

Greater risk management rules and vendor management programs may never knock California out of the list of top fraud states, but they very well may help deter the types of mortgage and settlement fraud risks those lenders and consumers in the state fear most.

 

Back to October 2015 Archive

 

CFLA was founded by the Nation's Leading Foreclosure Defense Attorneys back in 2007 to serve the Foreclosure Defense Industry and fight pervasive Bank Fraud. Since opening our virtual doors, CFLA has rapidly expanded to become the premier online legal destination for small businesses and consumers. But as the company continues to grow, we're careful to hold true to our original vision. For us, putting the law within reach of millions of people is more than just a novel idea—it's the founding principle, just ask Andrew P. Lehman, J.D.. With convenient locations in Houston and Los Angeles, you can contact Our National Account Specialist and General Manager / Member Damion W. Emholtz at 888-758-2352 for a free Mortgage Fraud Analysis or to obtain samples of work product, including cutting edge Bloomberg Securitization Audits, Litigation Support, Quiet Title Packages, and for more information about our Nationally Accredited and U.S. Department of Education Approved "Mortgage Securitization Analyst Training Certification" Classes (3 days) 24 hours for approved CLE & MCLE Credit (Now Available Online).

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