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