Thursday, January 31, 2013

Fidelity National Title Attorneys Rejected My Offer


Well I am very very surprised the attorneys, Richard McNeely and Edward Kunnes, refused my offer to take part of the settlement funds.  Considering the Settlement Conference itself and its nature - I just find this surprising.
I am also still waiting for a response from William P. Foley II - but that I am not really expecting to happen.  If I do receive something I will post it immediately.

Wednesday, January 30, 2013

Am I "bashing" Fidelity National Title

Yesterday someone commented (not in a negative way mind you) that I was bashing Fidelity National Title.

Bashing is defined as "to criticize (another) harshly, accusatory and threateningly."

First, I am trying to not "accuse" anyone of anything.  I am trying to explain what happened to me and also to ask questions of things that I do not understand.  And there is a lot I do not understand.

Perhaps all of my reporting and questions do seem harsh.  I think they are probing.

And finally, I am not threatening Fidelity National Title in any way.  I am not telling people to not use them for your escrow, title and title insurance needs.  Personally I would never use them again but that is my choice.

And the only threatening that was done if at all was the opening remarks by Richard McNeely, the trial attorney for Fidelity National Title.  He explained at great length how I could be especially financially harmed by continuing on with the lawsuit - potentially even if I won - I could owe Fidelity money.  I even wrote on my legal pad a note to myself that I felt threatened by his speech.  But I do not think I have ever threatened Fidelity National Title nor any of its various entities.

Saturday, January 26, 2013

Is Fidelity National Title Employees Motivated to Not Pay Claims


"The quality of Fidelity's customer service and the level of employee loyalty and commitment are enhanced by our employee stock ownership. Stock ownership serves as a motivational force for Fidelity employees who recognize the Company's success is dependent upon their efforts and contributions." 



I guess that the discussion here is relevance.  I believe that it is relevant but this is, of course, my opinion.

It seems to me that this comes down to the bottom line of profit of the company.  If the employees have stock ownership and the higher the value of the stock the wealthier the are.  And the way to increase the value of the stock is to increase the bottom line which means to increase the profitability of the company.  And a good way to increase the profitability is to collect insurance premiums and not pay claims.

At least that is the way I do the math.  Now I could be wrong and I would certainly welcome an explanation that corrects this - not just an opinion but an actual explanation.

And to me this seems to create a conflict of interest with the employees as the fewer claims they pay the higher the value of the stock.


Did Fidelity National Title Defend my Easements??


Well I guess this is a good one.  First Craig Donner said that he would then he was gone.  Adam Pinchuck did nothing.  A year into the claim Robert Q. Kelly apparently did have research done.  Perhaps you remember this:




Except that it was now a year after the loss was first discovered and a year of marketing the property was lost - and I did not from Robert Q. Kelly's letter understand that the easements were now valid.

But the one thing I can say is that no effort was made to let the neighbor's title company know that they were incorrect and to defend the validity of the easements.  Of course, before we received the documents neither my attorney nor I knew any of this.

And what is even more confusing is that Jeff Hansen continued on with another appraisal treating it as if the easements were still lost - which to me means that he also did not read nor understand the research that was done for Robert Q. Kelly as he did not seem to understand that the easements were now considered to be valid.

So confusing.......................valid or not valid????????




What does Fidelity National Title do when processing a claim??


Well I have presented a list of Fidelity National Title Employees who have worked in some way on this claim which includes approximately 25 individuals.  Of those the last four or so are attorneys who have been somehow involved in the lawsuit and I can definitely see that meetings between these attorneys would be protected from disclosure by the attorney-client privilege and/or work product doctrine.

But what about all of the other meeting that occurred starting with the research done by Craig Donner through the numerous Claims Counsels.  There is communication that at least implies that some meetings probably occurred.  

But then when I read this - it made me wonder.  Is the reason that all of the Claims Counsels seem to be attorneys so that when a lawsuit occurs Fidelity National Title can claim attorney-client privilege so that they can keep everything a secret.  And on the 'work product doctrine' are they preparing for a lawsuit from the minute a claim is opened.

I don't know.  Just wondering and trying to ascertain some meaning to their response.



What does Fidelity National Title do to Conduct a Diligent Search?


"In order to determine the status of title, Fidelity National Title conducts a diligent search of the public records for those documents associated with the property. Fidelity National Title then examines those recorded documents in order to determine if there are any rights or claims that may have an impact upon the title to the property." 

Whoever did the "diligent" search on my property actually did not look at the Grant Deed of the previous owner as Parcels Two through Five were not part of that Grant Deed.  If anyone had even bothered to look at what seems to be the most obvious start of a "diligent" search, these parcels would not have been included in my Preliminary Title Report nor my Grant Deed.  

Not only was this missed the first time when the Preliminary Title Report was prepared, I then requested to meet on all of the various easements - and again this error was not discovered.

And then when I refinanced the property and another Preliminary Title Report and Grant Deed were prepared - again with a "diligent" search being done - the error was again not discovered.

So not only was the error not discovered once - but three times.  And with this attempting to find out how Fidelity National Title does a "diligent" search seems not only reasonable but appropriate.  And it definitely seems to me to be relevant to the subject matter.  Oh well.

Is Fidelity National Title Kidding???


With this - I think that they must think we all are stupid and crazy.  They paid $13,500 ($3500 to buy the easement to Cavedale Road in Sonoma County) and I was assured that this did not close the matter.  But they contended in their Response that I "accepted the insurance proceeds" "with accord and satisfaction."

Are they serious????  I wrote a tome very clearly how unhappy I was expressing what I believe were exceptionally negative feelings.

If anyone who has read anything on this blog could even remotely think that I accepted anything from Fidelity National Title with "accord and satisfaction" then I think I have really lost it.

Let's see.  What words would I use to describe my feelings?
  • Discord
  • Disagreement
  • Conflict
  • Dispute
  • Argument
  • Dissension
  • Dissatisfaction
  • Displeasure
  • Discontent
  • Unhappiness
  • Frustration


And these are the nicer words that I can think of to describe how I feel about Fidelity National Title.

Why can't Fidelity National Title Answer a Question??


You know I do not know why Fidelity National Title cannot take any responsibility and answer any of the questions.

Jim Gibson with PGP Valuation of Boise Idaho determined that the "Cost to Cure" the loss of my almost mile long easement to Mount Veeder Road in Napa County was to determine a area value of a much shorter prescriptive easement to Cavedale Road in Sonoma County.  The two easements went in two different directions - one existing the property to the west and the other to the east.  To drive from the entrance of one of these easements to the entrance to the other was approximately a 25 minute drive.

What I really wanted was answers not some objection that the request was vague and ambiguous.  I wanted to know who and why would the Claims Counsel even remotely think that you can substitute the value of an easement that I already enjoyed for one that I lost - not to mention that the easement went to a different road in a different county - miles apart.

There were a lot of things about the handling of the claim that I did not remotely understand - but this substitution is right up there at the top of the list.  I just completely and totally fail to understand who at Fidelity National Title would even remotely think that this was correct or appropriate.

So the fact that they failed to respond to this request - well it was disappointing but was what I was expecting considering how this whole claim was handled.

Fidelity National Title has no office in Napa California


When this first came up - I thought that the attorney, Edward Kunnes, was implying that I was lying that I had gone to the office in Napa to meet with the Title Officer before purchasing the property.  Either that or I was losing my mind.  So I even went to Google Earth and captured this picture:



I felt that it was important that I state that I had gone to the Napa Office to review the easements to the property before I purchased the property originally and it was in reference to this meeting that it was stated that the "defendant" aka Fidelity National Title Insurance Company had no offices in Napa California.

Well I now know that as I have stated on so many things - this is a fine distinction that is made - but in the context of the lawsuit and finding out how I ended up without easements that I was told by a Fidelity National Title Officer that I had - I thought this was important.

And I feel that the attorney telling me that there was no office in Napa - was insulting.  I still wonder why he could not have just been honest and said "Fidelity National Title Insurance Company does not have an office in Napa- but you are not crazy - you did go to the Fidelity National Title Company there."  Instead I had to figure out the relationship between all of the various entities myself.

I just wonder why Fidelity could not deal with me a straightforward and honest way.  But I felt this way during the entire claims process.  I could not get the Claims Counsel to talk to me.  I felt that the volumes I wrote were not read.  I felt like Fidelity thought that I was an idiot.

So Fidelity says that "Responding Party has conducted a diligent search and a reasonable inquiry in an effort to comply with this demand."  So did the person writing this even bother to ask Mr. Edward Kunnes on what basis he made these statements?  And on what basis did he make them and why did he not bother to explain the difference between Fidelity National Title Company and Fidelity National Title Insurance?

The one thing I can definitely say is that I have no idea how to play this game. 


Does Fidelity National Title Insurance Company have Deniability????



Per Wikipedia:
The work-product doctrine is more inclusive than attorney-client privilege.  Unlike the attorney–client privilege, which includes only communications between an attorney and the client, work-product includes materials prepared by persons other than the attorney him/her self: The materials may have been prepared by anybody as long as they were prepared with an eye towards the realistic possibility of impending litigation. Additionally, it includes materials collected for the attorney such as interrogatories, signed statements, other information acquired for the prosecution or defense of a case, "memoranda, briefs, communications . . . other writings prepared by counsel for his/her own use in prosecuting the client's case . . . mental impressions, conclusions, opinions, or legal theories."

So here are my questions.  In the previous blog post I discussed the fact that they would not produce the documents concerning the Grant Deed because as an "insurance company" they did not produce them.  Now they cannot produce them because they are saying that part of this material was produced in preparation for litigation.  So since when are Grant Deeds prepared with the anticipation of litigation?

Here is what again I do not understand.  The title insurance company insures the "title" - right???

Per Wikipedia:
Title is a legal term for a bundle of rights in a piece of property in which a party may own either a legal interest or an equitable interest. The rights in the bundle may be separated and held by different parties. It may also refer to a formal document that serves as evidence of ownership.  Conveyance of the document may be required in order to transfer ownership in the property to another person.

So according to this one of the things they are insuring is the "formal document that serves as evidence of ownership".  So in other words the Grant Deed that is (and was) recorded by Fidelity National Title.  So as this is the "document" that Fidelity National Title Insurance Company would insure - correct?  And wouldn't one think that Fidelity National Title Insurance Company would in some way participate in the preparation (or at least review it) of the Grant Deed????  Or do they just insure a document that they have absolutely no relationship to?

When we (my attorney and myself) actually wrote this what I was trying to figure out was how this mistake was made considering that Fidelity's website says they do a diligent search of the public records - and neither of us realized that Fidelity National Title Company and Fidelity National Title Insurance Company - although related are somehow legal separate entities so their is deniability.


Friday, January 25, 2013

Does Fidelity National Title prepare Grant Deeds??

When you use Fidelity National Title for your title and escrow services who prepares and records the Grant Deed?  How is it determined what is going to get recorded?  And is this not what Fidelity National Title Insurance Company insures?  And if they do insure the legal description in the Grant Deed - don't they review what they are insuring???????



And here is the screen shot from the Fidelity National Title Company website:


So through their "nationwide network of direct operations and agents, FNTIC provides..."  "escrow and closing services"  .... and   "Recordings".  So who actually researches for the Preliminary Title Report and who prepares the Grant Deed (the physical document) and who actually records it?  And per this statement doesn't it look like FNTIC provides escrow and closing services?  Isn't the recording of the Grant Deed part of the closing service?


So the recording of the original sale was "requested by Fidelity National Title Company" and it mentions the escrow and title numbers.  And per the Fidelity National Title Insurance Company they provide these services.  Oh well, I am certain that the statement they make in this legal document is just another legal "loophole" in the structure of Fidelity National Title (whatever) to be able to avoid responding.

It makes me wonder though - if Fidelity has gone to such great lengths to structure their company so that they appear to be able to avoid answering questions and requests - what are they trying to hide?????

It appears in all of the documents that the Claims Counsels had access to all of these documents but they only provided the "claims file" so somehow none of these documents made their way into that file.  If you were Claims Counsel and you were investigating this claim - wouldn't you want to figure out what happened????



Thursday, January 24, 2013

Why did Fidelity National Title not reacquire the lost easement??


Dennis Lucey, the first Claims Counsel in Walnut Creek, California, said that he would check into the validity of the lost easements first, and then if they were not valid, he would look into reacquiring the easements from the owners.  This seemed logical to me.

But I never heard anything more about this option - rather is was first confirmed by Adam Pinchuck, the second Claims counsel in Chicago, that the easement was insured.  The Robert Q. Kelly commissioned Jim Gibson, an appraiser from Boise Idaho, who apparently determined the correct way to value the Diminution in Value was to value the prescriptive easement to Cavedale Road in Sonoma County to replace the lost easement to Mount Veeder Road in Napa County.  To me this was not logical.

So did Fidelity ever contact the owners of the properties where the easements were?  And if so, what did they say?  Would they sell the easements?  And if so, for how much?  And why did Fidelity National Title then not purchase the easements that they insured???????



So according to the last line of this document by Robert Q. Kelly, the third Claims Counsel for Fidelity National Title,there was communication with the neighbor.  Which neighbor?  All of the neighbors?  Who and when did this negotiation take place?  What exactly did the neighbor say?  Was an offer made to purchase the easement?  If so, how much was offered? Was any other neighbors approached to acquire an easement?  Where is the communication regarding this request?

And how is this not relevant to this action????  And as the reference to this communication is in the claims file provided - what happened to the documents commemorating this negotiation??????





Wednesday, January 23, 2013

Integrity and Fidelity National Title

“The only ethical principle which has made science possible is that the truth shall be told all the time. If we do not penalize false statements made in error, we open up the way for false statements by intention. And a false statement of fact, made deliberately, is the most serious crime a scientist can commit.”
―Dorothy L. Sayers



The irony after a four year long battle with Fidelity National Title over the easements being not valid and it being determined by the second Claims Counsel Adam Pinchuck that they were insured, then after a year Robert Q. Kelly determines that is as insured:


Robert Q. Kelly is then advised by Johnson:


Robert Q. Kelly then writes: 



But Mr. Kelly never told me that there was no loss and therefore the property was as insured but again no effort was made to give me access to the easements.  What I understood at the time and also what my attorney understood was that Parcels Two through Five were excepted from insurance under Schedule B Part II but this did not make sense to me as this states if not recorded - and the Fidelity National Title Officer provided me with the recorded public records of these easements.

And what was even more mysterious is that after this Jeff Hansen continued to treat it as a covered loss and commissioned another appraisal.

But when I "complained" about this second appraisal I was then told that the property was not insured as I no longer owned it.  At the Settlement Conference Edward Kunnes said (smugly in my opinion) that this was true.



But then it raises the question as to why Fidelity would have stalled and stalled on the settling of the claim to intentionally apply this legal "loophole."  I do not know if it is a "loophole" or not to be honest but it seems odd to me that the claim was filed a year before - and therefore was not handled in a quick and efficient way.  Was that intentional?  

And what part of anything that was said to me was true?  or accurate?  or honest?  I do not know.

Does Fidelity National Title Employ Escrow and Title Officers

This is my personal favorite of things which the attorneys for Fidelity National Title Law Group (at least I think that is who employed them) asserted repeatedly:


So the "Responding Party" is 'Fidelity National Title Insurance Company' and it was stressed during the law suit that the escrow and title services were performed by 'Fidelity National Title Company' and therefore, for example, the Responding Party did not have documents for employees it did not employ.

I consider this a dodge and an excuse for not producing documents but making it even more confusing for me is a screen shot that I took of the Fidelity National Title Insurance Company website this morning:


I can see this is hard to read so hopefully this close up is clearer:


So according to their website they provide escrow and closing services - so how can they do that without employing escrow officers?  And I will have to do some digging but they also denied recording the Grant Deeds that included Parcels Two through Five.  And yet is states right here that FNTIC performs services such as this??????????????????

Now I am certain that there must be some legal nuance that allows them to make such statements and get away with it - as I do not think even the Fidelity National Title attorney's would be so blatant about lying.  But as a consumer reading this (and considering that from this website I can click directly through to the Fidelity National Title Company website) I would and did assume that in my case "FNTIC also performs other title- related services such as" "Escrow" and "Recordings".

I do though find it interesting unless it is included under "underwriting" it that the title portion and the research is not specifically included as this is the work that is actually being insured.  But again this might be included under the "underwriting" portion of this description.

At any rate I personally feel that the structure here is and was very misleading at least to me.  And I was a real estate broker - I cannot imagine how many other clients of Fidelity have no idea the nuances of the distinctions of the corporate structure of this company and that this allows deniability.


Does Fidelity National Title Make Mistakes?????


Does Fidelity National Title Make Mistakes????  And, if so, does Fidelity National Title take responsibility for those mistakes?


First, and this is true for many of the Responses of Fidelity National Title "the request seeks documents that are not relevant to the subject matter of this action, are not admissible, and do not appear reasonably calculated to lead to the discovery of admissible evidence."

Am I crazy??????????????

Considering the subject of the claim was Parcels Two, Three, Four and Five were first put into the Preliminary Title Report (as I have mentioned previously it appeared they were not in the seller's grant deed - so therefore were not his to convey), I questioned the Escrow Officer on the Prelim and was referred to the Title Officer who provided me documents (which I am assuming was researched) of the easements in question.  Then Fidelity National Title provided the Grant Deed that was recorded with these parcels.  Considering that they do a diligent search of the public records per their website - don't you think that looking at the previous Grant Deed recorded for the seller of the property might be a good place to start?

Why were these parcels added into my Preliminary Title Report?  Why were they included in the Grant Deed that was recorded for the original sale of the property and again when it was refinanced?  And then a title officer decided that they should not be conveyed and then a year into the claim it Fidelity decided that perhaps they were valid - but did not explain this to me - and they wondered the effect this had on the marketability of the property???????????????

And private information of the other parties?  Isn't the sale price, etc. a matter of public record?  And even if their was information (the only thing I can think of would be the loan documents but it was all my loans so it would only be my information) that was private with the first escrow - certainly all of the title search documentation, my request to see the title officer, etc. is not and could have been provided.

At least that is my opinion - and a lot of this is not proving that Fidelity was incorrect or not - for me a lot of it is answering questions and perhaps taking responsibility for errors made.  As a professional I make mistakes - and I take responsibility for those mistakes.


Updating the list of Fidelity National Title Employees


As I continue to sort through documents from Fidelity National Title - I keep discovering the names of other Fidelity Employees that were some how aware and/or worked on my escrow, title, claim and/or lawsuit with the exception of William Foley - who I wrote a letter to - but so far he has not responded.

Whether or not to work with Fidelity National Title for your escrow and title needs and whether or not to insure your real estate with this company is obviously an individual decision.  BUT with that said I would NEVER work with either Fidelity National Title Company nor Fidelity National Title Insurance Company nor any of the following individuals again.  Nor would I use Jim Gibson or Philip Steffen for appraisal services.

Lynn Rode, Fidelity National Title, Escrow Officer
Debbie Shelton, Fidelity National Title, Escrow Officer
Lee Grice,  Fidelity National Title, Title Officer
John Hlivka,  Fidelity National Title, County Manager
Craig Donner, Fidelity National Title, Title Officer
Paul Anin, Fidelity National Title
Douglas Borchert, Fidelity National Title
Dennis Lucey, Fidelity National Title, first Claims Counsel
Adam Pinchuck, Fidelity National Title, second Claims Counsel
Robert Q. Kelly, Fidelity National Title, third Claims Counsel
Owen Girard, Fidelity National Title, Claims
James Gibson, Appraiser, Boise Idaho
Philip Steffen, Appraiser, Phoenix Arizona
PGP Valuation Inc., Appraisal Company
Gary Colemere, Fidelity National Title, Title
Steven K. Johnson, Fidelity National Title Group, Quality Assurance Counsel
Colleen Babutzke, Fidelity National Title
Jeff Hansen, Fidelity National Title, fourth Claims Counsel
Todd Moody, Fidelity National Title
Jennifer Reeves, Fidelity National Title, fifth claims,West Coast Manager
Ryan Forrest, Fidelity National Title, sixth Claims Counsel
Ed Kunnes, Fidelity National Title, Attorney
Jeffrey S. Nelson, Fidelity National Title, Attorney
Richard M. McNeely, Fidelity National Title, Attorney
Nancy Van Tassel, Fidelity National Title, Vice President
Peter Wolff Jr., Fidelity National Law Group
William P. Foley II, Fidelity National Title Insurance Company, President and Chairman


“Somebody once said that in looking for people to hire, you look for three qualities: integrity, intelligence, and energy. And if you don’t have the first, the other two will kill you. You think about it; it’s true. If you hire somebody without [integrity], you really want them to be dumb and lazy.”
―Warren Buffett



Tuesday, January 22, 2013

What makes documents of Fidelity National Title not relevant?????


Lee Grice was the first Title Officer for Fidelity National Title who was on the Preliminary Title Report that I was given prior to the purchase of the property.  When I requested a meeting with title to review all the Exclusive Use Easement and the other easements to the property listed as Parcels Two, Three, Four, Five and Six I went to the office of Fidelity National Title in Napa to meet.  It was at that meeting in approximately 2002 that I was provided with the parcel map showing the location of easements and the copies of the public records of those easements.  And Mr. Grice was the Title Officer again when the property was refinanced and Parcels Two through Five were included again in the Preliminary Title Report and again in the Grant Deed. 

As it was this meeting and the documents given to me and the research done to prepare those documents that led me to believe that I had two deeded easements that not only existed but were insured by Fidelity National Title - so in my opinion all of these documents are totally and completely relevant.  But also see the comments made in the document below:


(This is just a part of the entire document and is only the part as it pertains to these document requests.)  Obviously although incomplete apparently the file does exist.  And from my research Mr. Grice not only retired from Fidelity but per the Napa Valley Register has passed away.  Still it appears that the file became part of the claim file but it was not produced.



So there were apparently in the claims files emails (as in plural - more than one) from Craig Donner between 10-3-08 and 10-15-09 - that is covering more than a year.  None of these were produced that I could find other than on email noted below:


I never saw the email from Paul Anin mentioned above.  And the validity of Parcels Two, Three, Four and Five were completely and totally what the claim was about.  And Craig Donner not only researched it but was the person who opened the claim on my behalf.  How could any document he produced in relationship to these easements not be relevant??????

It does though make me wonder what happened to the documents that Robert Q. Kelly was referring to.  I thought when I prepared by documents for Fidelity National Title that if I failed to include anything including day book pages, phone logs, etc. - that I would minimally be struck by lightening.  As no one at Fidelity National Title has been stuck by lightening (at least to my knowledge) I guess my impression was incorrect.




Why was my claim moved from Walnut Creek California to Chicago to Omaha?????


My claim was originally assigned to Dennis Lucey in Walnut Creek California which made total sense to me as it was close to the property - and also within driving distance for me.  And Mr. Lucey took the claim seriously and was going to keep the claim "on, or near, the front burner."


The next communication that I received was from Adam Pinchuck at the Fidelity National Title that I had been assigned to him in the Chicago office.  When I could not reach Mr. Pinchuck, I called Dennis Lucey who told me that I was now assigned to Robert Q. Kelly in the Omaha office of Fidelity.

Why?????  Why was I transferred from Dennis Lucey who considered by claim a priority to Chicago??


This is from a report in June of 2009 by Claims Counsel Robert Q. Kelly in Omaha.  So I did receive a letter from Dennis Lucey and was told by Irvine (California) that I was assigned to him.  And as, for example, the above email was in the claims file that was sent to us - why does Mr. Kelly say that there was no documentation from 10/15/09 to 12/30/09???  If that is the case how does he know that it was transferred to Chicago in November?  And why?  And as the above email supposedly came from the file - why does he say there is not documentation during that time period?

I do not know for a fact why I was transferred all from claims office to claims office and claims counsel to claims counsel.  I suspect though that it was a tactic to delay the processing of the claim and also to make deposing the claims counsel expensive as they were not physically available.  These are just my thoughts and they would address the issue of Bad Faith.

If Fidelity National Title's reasons for all of these transfers were because they had my best interest as the insured in mind - why would they not want to explain this?  I cannot imagine why these transfers would be a "trade secret"??????  I honestly do not know why I was transferred all over the place.







Monday, January 21, 2013

Instructions to appraiser by Fidelity National Title??????


As I mentioned yesterday I was told by Robert Q. Kelly of Fidelity National Title that Jim Gibson from PGP Valuation in Boise Idaho was on Fidelity National Title's "approved appraisers" list.

Jim Gibson wrote the following to Robert Q. Kelly:


Jim Gibson then prepared an DIV appraisal using the "cost to cure" method as he mentions above valuing a prescriptive easement which I already had and used to Cavedale Road in Sonoma County to replace the lost easement to Mount Veeder Road in Napa County.  One can assume by his statement above that this was less than the difference of the "Before and After Value."


And yet when the second appraisal was done by Jim Gibson of Boise Idaho - the value of the loss or the Diminution in Value was now $0.

Per Mr. Gibson's email his preferred method of communication was via phone - but other than the above documents there are no phone logs nor any other written communication indicating what instructions were given to this appraiser from Fidelity National Title's "approved list."





Sunday, January 20, 2013

How does Fidelity National Title Insurance Company chose it's Appraisers???


The third Claims Counsel, Robert Q. Kelly, asked me for the names of local appraisers.  But then I was told that Jim Gibson of PGP Valuation from Boise Idaho was hired as he was on their list of "approved appraisers."  There was communication between Owen Girard of Fidelity National Title and Jim Gibson:


It is apparent from this email that Jim Gibson has done many Diminution in Value appraisals for Fidelity National Title and that these appraisals are all over the western United States.  From this I think that perhaps the reason that he has repeatedly been hired by Fidelity National Title to perform these kind of appraisals is that he performs appraisals that are to Fidelity's advantage.

I do know from my experience that he did not spend enough time studying the area and driving around looking at all of the comparable properties so that he could make a fair and accurate appraisal.  In my case I wrote almost 17 pages pointing out the discrepancies, misinformation and indeed what I felt was false information.  And although he made general statements that he had performed commercial appraisals in California - but he never provided actual data on those appraisals.

I still question what qualifies an appraiser to be on the Fidelity National Title's list of "approved appraisers" and why they do not use local appraisers who are familiar with the area and the comparable properties.

Sigh!!


Process by which Fidelity National Title issues title insurance to consumers????


So what in the process by which Fidelity National Title issues title insurance to consumers and how does it defend claims??

How is the title actually researched?

When one opens an escrow with Fidelity National Title is it assumed that one will insure the title with Fidelity National Title Insurance?

Who actually "sells" the title insurance to the consumer?

As the only contact, for example, I had contact only with my escrow officer and then when researching the Preliminary Title Report provided to me by Fidelity National Title Company.  So did one of them sell me the title insurance policy?

And my understanding is that the Prelim is an offer to insure.  So why would the escrow and title company prepare an offer to insure for Fidelity National Title Insurance Company?  And why would they accept this?

Doesn't Fidelity National Title Company prepare the Grant Deed?  And wasn't it the legal description in the Grant Deed that Fidelity National Title Insurance Company insures?  If not, what exactly do they insure as far as a written document?

So many questions and so few answers.  As a consumer (for me now with hindsight) don't you think you would like to know how all of this works?  I know I would.

I do not see personally how all of this works is a "trade secret".  It seems perhaps, at least in my case, an effort to keep the consumer in the dark so that the relationship between who prepares and researches the property, who sells the actual title insurance and who and how is it insured a mystery.

At least having gone through everything I have gone through - it is still a mystery to me.

Notes, Records, Calendars and Daybooks of Fidelity National Title


In going through all of the documents that were provided by Fidelity National Title - there was one letter of mine (only two of three pages though) with hand written notes by Jeff Hansen, Claims Counsel for Fidelity National Title.  Other than this - I could not find any "notes", "records", "calendars" nor "daybooks" with any entries.

And yet there were emails, for example, that referred to phone conversations with the appraiser, Jim Gibson, from Boise Idaho.

So although I was always taught as a real estate broker to memorialize all phone conversations, for example, it appears that the attorneys who work as claims counsels for Fidelity National Title (Dennis Lucey, Adam Pinchuck, Robert Q. Kelly, Jeff Hansen, Jennifer Reeves, Ryan Forrest) take no notes, do not keep records, do not have calendars nor do they keep daybooks where them memorialize what is going on with a claim.  I find this fascinating. Either they have extraordinary memories - or they failed to produce their notes - or perhaps knowing that they will be asked for them - they really do not write anything down.

Interesting.

Saturday, January 19, 2013

So where are all of the original Escrow and Title Documents from Fidelity National Title

So I have gone through all of the documents that were provided to us from Fidelity National Law Group which had documents from the claim's file.  It is difficult to say that the file is complete.  There are references to research - but no substantiating documents.  There are references to phone calls - but no phone logs or notes.  There are references to conversations - but no memorandums of those conversations.

Additionally there are no documents from the original escrow or title search including the title search done prior to the purchase of the property.  There are no documents of the search done by Craig Donner that caused him to open the claim on my behalf.  I would think that if I were a claims counsel investing a claim that all of these documents would be critical to my analysis of the claim and therefore would be included in the claims file.

But I believe the argument by the Fidelity Law Group would be that these files were part of the Fidelity National Title Company and therefore not part of the claim insured by Fidelity National Title Insurance Company.  But then I have to question again the relationship between these two companies.  Why would one company insure the work of another without having access to the documents and why would they also therefore trust them to be accurate.  I personally would not jump off a cliff without at least taking a peek over the edge to see how far was the fall and what was I going to land on.


Do Fidelity National Title Company escrow officers sell the title insurance??????

There are so many things I do not understand about what happened - and I had hoped to come to a better understanding of how this entire mess happened in the first place.

Per the Fidelity website:

"In order to determine the status of title, Fidelity National Title conducts a diligent search of the public records for those documents associated with the property. Fidelity National Title then examines those recorded documents in order to determine if there are any rights or claims that may have an impact upon the title to the property." 


And yet - as will be shown later.  No documents seem to exist from this "diligent search of the public records."  And it seems that four "diligent" searches should have been done:

1) When the property was originally purchased.
2) When the property was refinanced and I took sole ownership of the property.
3) When Craig Donner did the search when the problem arose and discovered the easements were not valid.
4) Then about a year into the claim another search was done and it then appeared that the easements might be valid - although I was never told.

Because of all of this - I felt that finding out what they actually do in issuing title insurance is important.

Another critical question I have is who actually "sells" the title insurance.  Until the lawsuit I did not realize that it was too different "companies" that handle the escrow, issues the prelim and prepares the Grant Deed and the title insurance company.  When one opens escrow with Fidelity National Title Company it appears that the insurance is automatically issued by Fidelity National Title Insurance Company.  At least I was never asked for myself or any of my clients - would I like the title insurance delivered  by another company.  So does that make the escrow officer the salesperson for the title insurance??????  Do they get a commission or get paid for selling the title insurance???

I do not know but personally I think these are very good questions.



Thursday, January 17, 2013

What constitutes the contract between an insured and Fidelity National Title Insurance Company?

I have edited this down to a relatively small number but due to a busy work schedule it is going to take some time to post and comment on them......................


So it is my understanding that the agreement between the client and the title insurance company is a contractual arrangement.  And therefore the payment of a claim (or lack of payment) would be a contractual matter.  So requesting all documents regarding any agreements between myself and Fidelity National Title seems reasonable and hardly irrelevant.

For example, as part of this I feel that all of the documents that I was provided at the meeting I had with the Fidelity National Title Officer in Napa California prior to purchase of the property regarding Parcels Two through Five (the subsequently lost easement) and research to obtain these documents would not only be relevant but IS the "subject matter of this action."  And it was definitely part of the "agreement" which I had when I purchased the property namely that I had taken the additional step of meeting with the title officer to find out more about the parcels (easement), had obtained from him the recorded public records and understood these parcels (easement) to be a valid portion of my real estate purchase.

Additionally as cited previously from the Fidelity National Title website:

"When you purchase real property, rely on Fidelity National Title to protect your interests. You’ll be insured by a company backed by more than 150 years of successful title operations."

"The title search may reveal the existence of recorded defects, liens or encumbrances upon the title such as unpaid taxes, unsatisfied mortgages, judgments and tax liens against the current or past owners, easements, restrictions and court actions. These recorded defects, liens and encumbrances are reported to you prior to your purchase of the property. Once reported, these matters can be accepted, resolved or extinguished prior to the closing of the transaction. In addition, you are protected against any recorded defects, liens or encumbrances upon the title that are unreported to you and which are within the coverage of the particular policy issued in the transaction. This is the first benefit you receive from title insurance." 

I believe that these quotes were also part of the agreement between myself and Fidelity National Title although I do not know if technically what is on their website would be part of the "contract."

Wednesday, January 16, 2013

Waiting to hear from William P. Foley II

I do not know if Mr. Foley (or most likely an assistant) will even read or respond to the letter I wrote - but I feel a certain sense of satisfaction having sent it and expressing my feelings.

In the meantime - the last legal part of the lawsuit was requesting documents from Fidelity National Title.  They were late in responding - I did not receive the thousands of pages until the Monday night before the Thursday morning Settlement Conference.  And obviously many of them were repetitive as email responses can repeat the preceding emails dozens of times.  I spent days pouring over these documents searching for clues and I am certain I did not find them all.

Along with the documents, Fidelity National Title accidentally sent a draft version of their response before sending the final version.  There were very few changes - including not seeing an incomplete sentence that remained in the final version (I guess proof reading this document was not a high priority) - and it also seemed to me that many of their responses were an effort to avoid answering the request - but then I am not a lawyer.

What I did do is the following:

  1. Cut and paste every response made by Fidelity National Title to the original request - this was the only way I could make sense of it.
  2. Carefully read through each Request from my attorney and the Response from Fidelity National Title - most of their responses were repetitive - and did not really address the request but then again - I am not an attorney.
  3. I took some of the most relevant items that were either confusing or I felt were not addressing the request or I felt were trying to not send information - and I made jpegs of those - so that I can post them on this blog and comment on them.
Needless to say all of this took hours but at least for me it was very helpful in understanding - or not understanding - the process.

And there were also many things that I found interesting.  First, in every risk management course I have ever taken - Risk Management 101 is keeping a detailed calendar and phone log of every conversation.  I found it very interesting that not one of the employees of Fidelity National Title apparently did this even though a majority of them were attorneys.  I thought this was one of the first things they taught people in law school.  Or I cannot help but wonder if they do keep a calendar and phone log - why did they not send them?  In emails they mentioned phone and other conversations - but there were no logs of what was actually said in those conversations.  And I had a few phone conversations with various employees - and there were no records of those phone conversations either.  I guess I find this either strange and/or unprofessional.  

And now and in the future - I am just going to say Fidelity National Title who worked for which division was and is confusing.  As you will see, even though Fidelity National Title Insurance Company turned to Fidelity National Title Company to research the easements - if a title question (which is really what the entire claim is about) is asked - those documents are not produced as Fidelity National Title Insurance Company is not a title company.  So documents like all of the original title and escrow documents are not included.  But isn't it the basis of those documents that my title was insured on?

The further I delve into the workings of Fidelity National Financial, Fidelity National Title Company, Fidelity National Title Insurance Company and Fidelity National Law Group - the more questions I have.

So later today or tomorrow I will start to post some of the Requests and Responses and I will comment on my confusions and/or what I had hoped to find out.

Friday, January 11, 2013

Letter to Mr. William P. Foley II, President and Chairman of Fidelity National Title Insurance Company


January 11, 2013

Mr. William P. Foley II
Fidelity National Title Insurance Company
601 Riverside Avenue
Jacksonville FL  32204

Dear Mr. Foley,

I am writing to you as the President of Fidelity National Title Insurance Company.  (Mr. William P. Foley, serves as the President and Chairman of Fidelity National Title Insurance Company.)  I was a real estate agent/broker in Sonoma, a Fidelity Gold Client and used Fidelity for my personal real estate transactions.  I owned an 80 acre parcel with sweeping views of the Napa Valley off of Mt. Veeder Road that was above the former Chateau Potelle property purchased by Jess Jackson and Barbara Banke.  An easement from Mt. Veeder Road that was insured by Fidelity was found to be invalid (but it was determined but not told to me a year into the claim that it might be valid).  A claim was opened on my behalf by a Fidelity Title Officer.  An appraiser from Boise Idaho was hired who determined the value of this mile long easement in Napa County had a value of $0.  He did things like compare in value my property above Oakville to America Canyon – I am mentioning this as it would be the equivalent of comparing in value your property in Healdsburg to Ukiah.  His first “cost to cure” was to substitute a prescriptive easement I already had to Cavedale Road in Sonoma County for the lost easement to Mount Veeder Road in Napa County.  The claims counsels in Omaha found neither of these facts odd.

After four years, three claims offices and six claims officers I finally filed a lawsuit.  I discovered though that an individual is in no position to fight a corporation such as yours.  I settled the suit to pay the legal fees and compensate my attorney for his time.  Here is my blog entry on the result of the settlement:

“I have been thinking a lot about this since I wrote the email to my attorney instructing him to divide the Settlement money between himself and the two trial attorneys from Fidelity National Title.

Over the course of my former career as a real estate agent/broker I referred hundreds of clients to Fidelity National Title as the title company that I supported and felt did the best job due to the excellent service I and my clients had received from the escrow officers in the Sonoma California office.

As I have said - thank goodness that I am the only one who ever had to actually file (or had filed on my behalf) a claim with Fidelity National Title.  Having experienced working with (LOL) the claims department of Fidelity National Title, I feel guilty having referred so many of my clients to Fidelity knowing that if they have a problem in the future with their real estate investment title, they will need to most likely go through an experience similar to what happened to me.

If I accepted the pittance of a settlement that I felt I was forced to agree to - which I did solely for the purpose of paying the legal expenses (amounting to almost $8000 just to barely get the lawsuit started) and to pay my attorney for his time.  I was convinced by the intimidating speech of Fidelity National Title's Senior Trial Attorney (Richard M. McNeely, Jr.) that not only was it going to cost tens of thousands of dollars but even if I "won" I could still legally end up owing Fidelity money.

Additionally, the second Fidelity National Title Attorney (Edward Kunnes) in what I felt was not a pleasant way pointed out the following:

1.      My attempts at adding a little levity to the conference was not appropriate for a settlement conference.
2.      When he stated that Fidelity National Title Insurance Company did not have an office in Napa (and therefore this statement in our complaint was false) -  which I wrote about as I researched the company I realized that he was correct as there are so many different divisions but even as a real estate broker - I thought that they were all the same and interconnected and not part of what I now understand to be a form of organization and legal protection.
3.      And he stated that indeed per the law I was no longer covered by the insurance because I no longer owned the property.  Of course, I now realize that this must have been part of the intention of moving me all over the country from office to office and claims counsel to claims counsel and the lack of response until I contacted the California Department of Insurance, etc.
At any rate - I feel that it is important that I continue to express the reasons I would never ever use Fidelity National Title Company and Fidelity National Title Insurance Company documented with copies of documents from Fidelity National Title.  If I took the money then I would be sending the message that I thought that I had been treated justly and fairly - which I do not - not even close.”


Having only two days before the Settlement Conference to pour through thousands of pages of documents provided weeks late by Fidelity I finally put some of the pieces of the puzzle together and formed this list of events for the Conference:

Chronological Order of Events
·          1998 Hamilton Vose subdivided off this property and sold it to Arnie Kresch.  At that time the Grant Deed from Napa Land Title Co. lists only Parcel One (the property) and Parcel Two (our Parcel Six – the easement thru Chateau Potelle).  Grant Deed
·         2002 -2004 AND HERE IS THE MISTAKE.  When we purchased the property from the Kresch kids after Arnie Kresch’s death Fidelity added in Parcels Two thru Five to both the prelim and the Grant Deed on the purchase and subsequent re-finance.  THE REASON THEY ARE NOT VALID AS THEY WERE NOT THE SELLER’S TO CONVEY.  Grant Deed
·         2002 I met with the title officer in Napa prior to purchasing the property and received the map and recorded documents on all of the easements leading me to believe that there was this second deeded easement from Mt. Veeder.
·         June 2008  When I went to sell the property I (obviously) thought there was a valid easement which is the reason I contacted Doreen Ho which started the entire claim.  Fax to Debbie Shelton
·         October 2008  Craig Donner of Fidelity National Title determines the easements are not valid as they were not the sellers to convey and opens the claim.  “Our insured is now putting the property on the market and wants to advertise that she has an additional access being the insured easement.  I know we need to forward to claims department, but escrow wants to know what she should advise her customer.  I think we should be up front and let her know the facts and that it will be handled by the claims department.”   Email re: telling Zollinger and Confidential Claim Report to General Counsel
·         October 29, 2008 Claim assigned to Dennis Lucey, Walnut Creek.   Email to Craig Donner
“Since she ‘s trying to sell the property, and needs the claim resolved first, (and we apparently have a long professional history with her) I’m going to be sure to keep this on, or near, the front burner.”  Conversation was he was going to attempt to get the easements back.
·         November 13, 2008 Claim re-assigned to Adam Pinchuck, Chicago
·         November 18, 2008 Initial Fact and Claims Analysis “However, since these easements were included as insured parcels in Schedule A, we have provided coverage to our insured.”
·         December 30, 2009 Mr. Pinchuck “determined” “coverage is appropriate…..”
·         January 26, 2009 Zollinger reaches Dennis Lucey who tells her she has been re-assigned to Robert Kelly in Omaha.  (Kelly told Zollinger in a phone conversation he was swamped from the closing of the Chicago Office closing and asked for the names of local appraisers.)
·         February 23, 2009 Email from Jim Gibson to Owen Girard, “Thank you for taking the time with me this morning.  As I indicated, I have been, and continue to perform Diminution In Value (DIV) appraisals for Fidelity National-Chicago Title, covering numerous states, including:…….  I work with a small team of appraisers who have experience in DIV projects.  We have offices scattered across the county, providing local market knowledge.”
·         March 5, 2009 Email from Jim Gibson to Robert Kelly, “We will take care of this project.  It’s very similar to a DIV project I did in Aspen/Snowmass CO last fall.  A key issue for this type of project is not to over look the “Cost to Cure” for the noted defect in title.  If the estimated Cost to Cure is less than the difference of the “Before and After Value”, the Cost to Cure is considered to be the appropriate measure of damages.  In terms of this project, we have valued numerous commercial vineyards within the Napa/Sonoma market over the past few years.”  (So as he first did a “cost to cure” it can be assumed that this value was less than the DIV????)
·         May 1, 2009 Jim Gibson completes his appraisal determining that perfecting the prescriptive easement to Cavedale Road in Sonoma County can be substituted for perfecting the easement to Mount Veeder Road in Napa County and valued the “Cost to Cure” at $13,500.
·         Zollinger refutes the appraisal.
·         June 15, 2009 Email Robert Kelly to John Hilvka and Gary Colemere, “I’ll call Ann and advise her that I’m waiting for Mr. Gibson to provide a written response to his review of the information Ann submitted in an attempt to increase the loss amount indicated in his original DIV report.  I really need to discuss options 1 & 2 with you because Ann is asking me if we have acted on either of these options. (Note #1 is regaining Parcels 2 – 5, #2 obtaining another easement (not thru a winery) to Mt. Veeder Road.)
·         June 25, 2009 Jim Gibson responds with more false and misleading information
·         June 26, 2009 Policy Payment Approval Report
“After investigating this issue extensively with Gary Colemere out of the Napa County office it appears that Parcels 2 – 5 may run with Parcel 1 after all.”
“Legal Arguments:  Once the Company indicates to the Insured that the Property does not include Parcels 2 – 5 and as a result, this is a covered loss, and the insured relies on our statement and does not market the property as having a secondary easement access through parcels 2 – 5, can the company now say 6 months later that there is no loss, the property is as insured.”  (so it was valid the whole time and I was never told??????  And no attempt was made to defend my right to the easement with the neighbors?????)
·         June 30, 2009  Email from Steven Johnson to Robert Kelly, “We should provide our best explanation of the basis for the tendered claim payment, pointing out that it looks like there is a valid easement, that there are exceptions to the easement, and that we have diligently responded to requests in handling the claim.”
·         July 10, 2009 Robert Kelly writes, “Based on your request of 5/27209, our Company in good faith reviewed Parcel……  Based on this information the interest in the land is as described in Schedule A of the Policy.”  Then he excepts the coverage under Schedule B but states that in good faith the Company treated this matter as a covered loss.  Then, “so if the Historical Easements provide another access to the Property it would be the third access easement to the Property.”  (I did not get from his letter that there was a valid easement.)
·         Zollinger files claim with DOI
·         August 18, 2009 letter from Jeff Hansen (replacing Robert Kelly)
·         September 23, 2009 Brief by Jeff Hansen, “On 9/23/09 sent the following email to appraiser Jim Gibson of PGP after discovering bob Kelly had instructed Jim to appraise base on “cost to cure”, i.e. of obtaining alternative easement, as opposed to straight DIV.  “Talked to Todd Moody about this on 09/22/09 and also talked to Todd about fact that it’s come to light that Zollinger recently lost the property in foreclosure (Bank of America now owns).  Todd and I decided that due to DOI complaint, we should go ahead and get DIV appraisal, which will likely be lower than what Bob already paid Zollinger based on “cost to cure” appraisal.  Todd suggested if Zollinger complains about lower appraisal, we can then raise the issue of the foreclosure.”  (Interesting – since Gibson implied that the “cost to cure” was less by Hansen has now decided it would be less?????)(And Hansen, also, obviously did not get that the easements were valid as he, too, is still treating it as a loss?????)
·         November 9, 2009 Hansen writes, “In your letter of September 27, 2009, you made reference to the extensive sales data you had submitted on six other properties.  Rest assured, all of that data you submitted was sent to the appraiser and I told the appraiser to analyze it as part of the new appraisal and to make sure and address it in the appraisal report.”  (Not done.)
·         November 19, 2009 Jeff Hansen sent an almost identical appraisal without any analysis of the submitted data only now DIV is $0.
·         November 21, 2009 Zollinger complains.
·         December 16, 2009 Jeff Hansen writes, “The PGP Valuation Inc. report concludes the diminution in value is zero.”  “Additionally, your coverage under the above –referenced policy of title insurance terminated because, due to foreclosure, you ceased to be the record owner of the property”.
·         July 26, 2010 Jennifer Reeves writes, “If you would like to provide us with an appraisal from a certified appraiser we would be more than willing to review it.”

Needless to say it is impossible to readily explain four years of agony, frustration and unhappiness dealing with your claims department on a claim that your own company filed on my behalf.  The bottom line is that if I were you – I would be ashamed that the company that I head calls itself an insurance company.

If you would like more information please feel free to read my blog:

Sincerely,


Ann Zollinger