I Would Never Use Fidelity National Title Insurance Company Again

Well I settled with Fidelity for what I felt was pennies.  Their attorney began the settlement conference with a summation of what he felt they did (admitting later that he had not even read their documents) and then spent a huge amount of time "explaining to" (in my opinion threatening) with me all of the horrible things that can happen to me financially if the case went to trial using the example of how much I would owe to Fidelity even if I won and was only awarded a dollar.  It was all legal doctrine that to be honest I do not understand.

If I had it all to do over I never would have bothered with the lawsuit.  I spent thousands and thousands of hours now trying to get Fidelity to pay my claim - basically for nothing.  But over the next few weeks I am going to relate everything that happened yesterday for only one reason - so hopefully no one will ever have to go through what I did.

I did call my escrow officer yesterday after I left Walnut Creek to tell her that I thought she should seriously think of working for a different company.  Her response to the short version of the story was that insurance claims are not part of her job - but then I questioned her - if that is the case how could she sell Fidelity National Title insurance knowing that it may not insure the real estate of the person she is selling it to?  I do not think she is the person I thought she was for all of these years.

The only good thing about this situation is thank goodness that this happened to me and not the hundreds of clients that I referred to Fidelity for title insurance.

So I have to get some work done today but as time permits I will tell the entire story.  But my advise for today -  well I would Never Never Never use Fidelity National Title Insurance Company again.

Meeting Tomorrow with Fidelity National Title Insurance attorneys

So I have spent the last three days reading the 2500 pages that Fidelity sent.  Most of which is just ten copies of everything.  I managed to glean about 10 things of value and the rest was mostly stuff that I wrote in the first place.  No notes.  No research by the Claims Counsels.  No telephone or meeting notes.  A few  things that appear  that they never had the intention of paying the claim and were going to do everything possible to confuse and delay and not respond to my communication.  Reading some of the things I found made me even more disappointed in Fidelity which was a company that I had referred dozens of clients to.

Oh well - tomorrow should be interesting.

Letter to my Fidelity National Title Escrow Officer

December 22, 2009

Dear XXXX,

I know that we have spoken about this very unfortunate situation many times.  Having worked together on literally dozens of escrows both on my own properties and those of my clients, I want to clearly say the future actions I am going to be force to take are no reflection on you or XXX in regards to the excellent escrow services and customer service you have always provided.  Through all of these transactions you were both ultimate professionals and through our association also became friends.

I know that you know that a private entrance to an 80 acre parcel overlooking the Napa Valley does not have a value of zero.  I believe that you really need to consider the ethics in stating that your company represents its clients as an insurance company.  I am including quotes taken directly for your (Fidelity's) website.  Being the honest person that I know you are- I do not see how you can sit across the desk from clients and tell them that your company is going to insure their interests in their property when clearly you now know that the claims department of Fidelity will intentionally delay and then finally not cover the interests in the property that you tell your clients that they have.

I believe that you should look at every single Prelim and tell your clients that in the event there is some errors made by your title department, Fidelity will not take any responsibility whatsoever for those errors and that they are wasting money insuring their title with Fidelity National Title.

I have found this entire situation to be unconscionable.

Ann

Here is a good example of what Fidelity says...............

This was written by Claims Counsel #4 - isn't this disappointing?  It does not give me great confidence that this appraisal was done without bias considering that it is basically been decided before it was done that it would be lower in value and that I would complain about the amount being lower.

And I wonder whose interest Fidelity National Title Insurance Company is protecting ???????????

“XXXX and I decided that due to the DOI complaint, we should go ahead and get the DIV appraisal, which will likely be lower than what Bob already paid Zollinger based on “cost to cure” appraisal.  XXXX suggested if Zollinger complains about lower appraisal, we can then raise the issue of the foreclosure.”

BTW - I did let the bank foreclose on the property as the property proved to be unmarketable without the northern residential easement to Mt. Veeder Road.

So how is the loss of the truly hypothetical easement determined?

So far there are two appraisals that have been done:

·         The appraiser from Boise Idaho who I feel used false and misleading information first valued a ‘cost to cure’ with the easement from Cavedale and then subsequently compared the before and after value using the same  comps as $0.  He does not appear to have even been on the easement nor does it appear that he visited the comparable properties that he used - nor driven on Cavedale Road.

e   "We will take care of this project.  It’s 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.”

c    I guess appraising commercial vineyards and properties in Aspen qualified him for this job?  Still have not heard from Fidelity National Title Insurance Company how they found him.

      

      The second appraisal I did myself.  I based it on these principles from Lee vs. Fidelity National Title Insurance Company.

      “[t]he ambiguity should be resolved in favor of the insured.”

“[t]he function of the title company is to ‘give the insured the protection which he reasonably had a right to expect’”

“[t]he risk of a proper description was assumed by the company, and it should bear the responsibility for the mistake.”

·         

       I valued the diminution as the value which we listed the property with all three easements which was determined by comparable properties and we felt was aggressive as the ‘before’ value (as that was clearly what I was led to expect by Fidelity) and compared that to the reality of having only the one deeded easement.  (XXXX just explained to me that unless I am doing the valuation for a lending institution – I can do an appraisal.  Even as an interested party this work should be considered.)

      Needless to say the value that I determined to be the diminution in value was not $0 like the appraiser from Boise Idaho.

From Fidelity - the Parcel Map with the Easement

Parcel Map from Fidelity National Title Insurance of the lost easement

Learning new things about Fidelity all the time

So here is what happened:

• ·         In 1998 XXXXXX subdivided off this property and sold it to XXXXXX.  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).
• ·         AND HERE IS THE MISTAKE.  When we purchased the property from the XXXX kids after XXX’s death Fidelity added in Parcels Two thru Five.  So although in many documents sent by Fidelity there is a debate as to whether the easements are valid as recorded – THE REASON THEY ARE NOT VALID AS THEY WERE NOT THE SELLER’S TO CONVEY.  Not because they did not reach the property.
• ·         I met with the title officer in Napa prior to purchasing the property and received the map and recorded documents leading me to believe that there was this second deeded easement from Mt. Veeder.  (He apparently had Alzheimer’s and has subsequently died – and there is no record of the original search.)
• ·         When I went to sell the property I (obviously) thought there was a valid easement which is the reason I contacted XXXXXX which started the entire claim.

·         Which then brings us to Lee vs. Fidelity:

“[t]he ambiguity should be resolved in favor of the insured.”

“[t]he function of the title company is to ‘give the insured the protection which he reasonably had a right to expect’”

“[t]he risk of a proper description was assumed by the company, and it should bear the responsibility for the mistake.”

So for the first time I now understand why the easement was not valid - it was never granted to the person I bought the property from but Fidelity included it in my Preliminary Title Report and Grant Deed.

Documents from Fidelity National Title Insurance say.......

Well - there appears to be many missing documents but still over 2000 pages of communication sent from Fidelity National Title.  It is an overwhelming amount of data to sort through but it appears from their claims forms that a lot of it is coming up with a legal "strategy" to not pay my claim.  I am just guessing at this but it seems to be standard in the forms.

The original Title Officer in Napa appears to have suffered from Alzheimer's and passed away and there are no original documents from our meeting other than the documents which I was given.

As I wade through the documents I am just going to post what Fidelity says in the documents so to start here is a quote from Claims Counsel #1 in Walnut Creek to the Title Officer who verified the problem:

"Could you please check to see if an owner's policy was issued? And if so, forward a copy to me? 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."

And this seems to be the final communication from him and apparently most of what occurred in Chicago does not exist either.

It truly makes me wonder how I went from the front burner to still fighting this battle more than four years later.

Fidelity National Title - Am I a Victim of Corporate Abuse

Am I a victim of corporate abuse?

I just hung up with my attorney and appraiser - basically second guessing the arguments that Fidelity National Title is going to make to justify their actions and a value of $0.

First, if the value was $0 why did they first do a cost to cure appraisal and determine that perfecting the prescriptive easement to Cavedale Road in Sonoma County could be valued at $3500?

Why did the first claims counsel offer to see about re-gaining the lost easements?

Why was I transferred all over the country?  Why from office to office and claims counsel to claims counsel?

Why did they not produce their documents in a timely fashion?  And why were are the documents requested not produced?

Why would they hire an appraiser from Boise Idaho?

Well we are trying to set up a meeting.  At this point in time the actual value of the loss is almost a moot point but rather how this was handled (or not) is more to the point.  And as my attorney pointed out - a jury might see me as a victim of this huge corporation that has done everything other than deal with the claim professionally.

Is it Time to Give Up and Throw in the Towel?

I am tired.  I have been fighting this battle of trying to get Fidelity National Title to do the right thing and pay the claim that they opened on my behalf for over four years.

And when I was finally forced to hire an attorney and take the battle to court in hopes of getting them to act justly - I now understand that trying to pursue justice is really a matter of who has the most money to throw in the hat. We are now on the third attorney that Fidelity National Title has assigned to this case.

It is so apparent that they have the personnel and the money to make even getting heard a daunting task. They have the claims counsels and appraiser in other states.  Their "expert" witness are crazy expensive just to depose. They produce irrelevant documents and omit the ones asked for as part of the game.  And I think that it is only a game to them.  I am not a valued client - rather just an annoying bug that needs to be squashed.

All I have ever asked is to be treated fairly. Is it time to give up and lick my wounds and realize that one person cannot fight the insurance industry.  I cannot help but ask why I ever bothered to purchase title insurance - obviously it would not have made one bit of difference - as the title insurance from Fidelity National Title did not protect my investment.  Instead Fidelity has chosen to treat me in a way I would never treat a client of mine.

Naming names at Fidelity National Title

BTW I was advised at this point to not name the names of the individuals involved in this unfortunate situation.  But as soon as I can believe me I will so that others can learn from what has happened to me.  (Note on December 6, 2012 - I may not be able to as those individuals could sue me - I may need to be cautious as the legal system does not appear to me to protect the victim.)

And the games go on and on and on

Well although my mother said if you cannot say something nice...........................

But she did not know what it was like to be represented as an insured by a company like Fidelity National Title Insurance Company.  It is getting to the point that I do not understand how the people who work for Fidelity can get up and look themselves in the mirror before going to work.  Or maybe they don't.

From my attorney to Fidelity:

"We had agreed to postpone the disclosure of experts until this Wednesday, but I received the disclosure of Fidelity from XXXXXXXX in the mail. I also finally received the documents by messenger, but there are many documents in this production which relate to foreclosures and properties in other states which are not relevant and some of the documents which are relevant have not been produced and I need all of these documents for my experts to review."

But here is where the game goes on ............  one of their experts if we chose to depose him charges $575 an hour for depositions.

And instead of sending the documents requested, they appear to have just copied a bunch of unrelated documents that are not relevant and not produce the ones that are.  So here is what Fidelity National Title Insurance Company has done on this claim:

1. Opened the claim on my behalf.
2. Determined it was a valid claim.
3. Bounced me all over the country from claims office to claims office.
4. Determined the claim was not valid, then determined it was.
5. Hired an appraiser from Boise Idaho to appraise a Napa Valley property.
6. Determined the value of the claim was $0.
7. Sent me from claims counsel to claims counsel.
8. Forced me to hire an attorney.
9. Requested a mound of documents which I produced.
10. Had a deposition of the person who verified their Answer scheduled but cancelled after we all went to Walnut Creek.
11. Produced their documents weeks late and then sent red herrings or "forgot" the herrings completely.
12. Made the claims counsels and appraiser not available due to distance and/or expense of producing them.
13. Have chosen an absurdly expensive "expert" just to run up costs.

Obviously all they want to do is make my life as miserable as possible so that I will go away.

So take my right leg...............

So one of the arguments that has been made by Fidelity National Title Insurance Company is that although I lost an almost mile long easement through residential property - my 80 acre parcel was not land locked as there was still a deeded easement through the commercial/manufacturing property.  And therefore I obviously had no loss as it was determined that my loss was $0.

Again I attempted to address this with the Fidelity Claims Counsel with an illustration that perhaps he could understand.

A top soccer player who kicks with their right leg is in an automobile accident severing their right leg.  And their insurance company decides that there is not loss - after all our soccer player has another perfectly good leg to stand on !!!!!

I do not think I would be in this position if Fidelity National Title Insurance Company had taken any kind of a position of fairness at the beginning of this claim  that their title officer filed on my behalf.  What do I feel is "fair" now?

• An amount that represents my actual financial loss of the easement
• An amount that represents the hundreds of hours I have had to invest to get them to pay the claim
• An amount that represents the stress and anger that this has caused me
• An amount that pays for all of the lawsuit actual fees - filing fees, expert fees, etc.
• An amount that compensates my attorney

All I have ever wanted was for Fidelity National Title Insurance Company to do what they say that they do - protect my interest in my investment.  Is that too much to ask?

I did not open the claim.  I did not "verify" that I had a claim.  Both were done by employees of Fidelity.  So then why would a value of $0 be determined as the loss for this claim.  Why bother opening it in the first place?  Why bother determining that there is a valid claim?  And how can anyone associated with Fidelity honestly say that the value of this loss is $0?????????????????

Commercial vs. Residential Entrance to the Property

One (but hardly all) of the objections I had to the appraisal done by the appraiser from Boise Idaho was that he contributed the loss of an easement through residential estate property to $0 leaving only a deeded entrance through a commercial/manufacturing facility - a winery.  He did not compare the subject property to one property with such an entrance.

Early on (Claims Counsel #3 for Fidelity National Title Insurance Company who was in Omaha Nebraska) I attempted to explain the difference in terms that he could understand.

"Now when I think of Omaha I think of steak.  Imagine each of these properties not with their current entrance but through a stockyard then past the slaughterhouse and the store selling the steaks that hundreds of customers are going to especially on the weekends.  Okay – I admit that a vineyard does not smell like a stockyard and a grape does not look at you with those big brown eyes before sacrificing it’s little life for a bottle of wine but………  I believe you may see my point.  The entrance to the subject property has changed from a private estate quality entrance to through a stockyard (okay – a vineyard is a little different) but past the slaughterhouse (winery) and the store (tasting room and sales room) hosting hundreds of visitors, weddings and other large receptions.  THE LOSS OF THE NORTHERN ACCESS HAS HAD A HUGE AFFECT ON THE VALUE OF THIS PROPERTY."

Not that this made any difference as he and the appraiser just continued to ignore me.  I also attempted to explain this same difference to the attorney #1 for representing Fidelity for the lawsuit by using an example in Walnut Creek.  I think just maybe he got it.  Of course, he has been replaced - twice I think.

Just getting angrier and angrier

The more I am thinking about this the angrier I am getting.  First, these documents were due on November 5th.  They arrived today - the 20th.

And my attorney started looking at the disc and asked me if I was ever sued by an attorney in Washington state about a property in Portland that was foreclosed on.  I cannot even imagine what this is about.  Unless as I said rather than send the documents asked for - they just arbitrarily grabbed papers and scanned them into this disc to make it difficult.  I think this is called red herrings- right?

It reminded me of one of the response letters from the appraiser from Boise Idaho.  He started rambling in the middle of the letter about the price per ton of red grapes in 2006.  Now although this may seem like a pertinent fact to include in an appraisal for a property in the Napa Valley - one does have to wonder what this has to do with loss of an easement in 2008 - especially since no grapes gave up their lives for the easement.

Perhaps tomorrow I will describe my Omaha steak analogy.

So the documents finally came - hahahaha

My attorney just called and the attorney for Fidelity National Title Insurance Company claimed that the disc was just sitting on the receptionist's desk???????????????  Right.

So the file is too large to email but my attorney said that there is a document from a Washington state attorney about a property in Portland Oregon???

Are they serious?  Or did they just put every single piece of paper they could possibly find and send them to hide what we really asked for?

Stay tuned...........................

Still no documents from Fidelity National Title Insurance Company

From my attorney to Fidelity's attorney at 5:34 PM today.  Need I say more?

"I have still not received the documents or your amended response to request for documents."

Title Insurance is "insuring pig iron underwater...with a rust exclusion"

I keep running across the same figure that only 5% of the premiums for title insurance are allocated to paying losses.  Far far less than any other form of insurance.

I just found this great article from Mortgage News Daily by Rob Chrisman dated August 3, 2011

Perspective on Rejected Title Insurance Claims

Part of his article reads:


Monday the commentary discussed claims with title companies. "I just wanted to comment on the subject of claims with the title companies. I can tell you I had a personal claim against a national title company that missed some back taxes owed by the previous owner on a short sale. The county contacted me and said I was responsible for these back taxes, but that it was the title company's fault and I should contact it. Even though it was a clear case of the company being at fault the claim was denied. I had to eventually hire an attorney and threaten a lawsuit before getting them to settle. It took a lot of time and resources to get it to admit fault even though I had clear documentation from the county etc. I just thought I would share as this seems to back up what you are hearing."

One reader wrote, "As far as I can tell, from over 20 years of experience in this business, rejection of virtually all title claims by the insurer has been standard operating procedure. This is not a new phenomenon. In fact, a similarly jaded former Chairman of a small Midwestern thrift (long since deceased) once was heard to say that title insurance is "insuring pig iron underwater...with a rust exclusion". The economics of title insurance are vastly different from ordinary insurance with upwards of 80% of all premiums being paid to title agents merely for delivering the business. Only about 5% of all premium income is allocated to paying losses (the rest is administrative expense-such as lawyers to fight claims). The economics of casualty insurance, on the other hand, are reversed. There is rarely accountability between the purchaser of title insurance and the person making a claim (consider in many states the seller buys the insurance), but it's the buyer (or lender) who will have to pursue the claim. As a result, there is no need to have a good claims paying history since the buyers of their insurance never have to deal with a claim denial. In fact, if you think about it, if the title company does a proper search and knows the applicable law, the risk of loss should be zero. It is not as if a random occurrence like a tornado can hit your title and cause it to change. Title insurers are really just insuring their own negligence (and malfeasance) on the front end. Title losses were covered up by rising real estate values generally during the first half of the 2000's. Now, mortgage holders are seeking to hold title insurers liable for title losses whenever possible, many of which are really the result of fraud. Title claim volume has no doubt increased, so title insurers are just continuing their business model (of not paying claims easily) in more visible fashion."

And the rudeness goes on......................

From my attorney to the attorney for Fidelity National Title Insurance Company:

"I have not received the documents and yet we have deadlines approaching and my expert will need to see these documents before finalizing any report."

It is amazing to me the rudeness and unprofessional behavior that is shown by a company of this size and reputation.

After the claim was filed on my behalf by their own title officer I was shuffled around, ignored, not communicated with and not listened to.

Their attorneys have allowed us to drive to Walnut Creek for a deposition knowing full well that the person who was suppose to be deposed not only was not there - but actually knew nothing about the claim even though he had "verified" the Answer to the Third Amended Complaint.

And now they do things like ten days after the date for producing documents send a blank disc and now we are still waiting for the documents.  As it is Friday - it can only be assumed that we might get them on Monday which will be two weeks past the date they were due.

So what are they trying to hide??????????????????

No documents yet today from Fidelity National Title Insurance Company

It makes me wonder why I spent a dozen hours producing every single document in a timely fashion?  Especially since whoever is producing their documents is getting paid.

Insurance Companies and Sandy

I was watching the news this morning and there was a woman on Staten Island who was having a difficult time with her insurance company which caused me to do an Internet Search.

Sen. Schumer Warns Insurance Companies Against ‘Playing Games’ With Sandy Victims

Per this article Sandy was classified as a tropical storm when she reached the coast of New Jersey rather than a hurricane.  If classified as a tropical storm the homeowner's deductible is $1000 but if classified as a hurricane the deductible is $20,000.

Per the article the insurance companies are pressuring the NOAA (National Oceanic and Atmospheric Administration) , the weather agency, to reclassify Sandy as a hurricane to be able to change the amount of deductible that the homeowners have to pay substantially.

Haven't the people in Sandy's path been through enough without having to fight their insurance companies especially when the NOAA has already classified the storm?

Is it the job of insurance companies to protect the insured or their stockholders?

Documents were due November 5th from Fidelity

So ten days later and still no sign of the documents.  Just a blank disc sent to my attorney.

It just has to make one wonder...............................................

So Fidelity's attorneys sent documents !!!! Just kidding............

"There were no files on the disc which you sent me. Can you send me a disc which has something on it."

My attorney's comments.

Just wondering ????

Still No Documents from Fidelity National Title Insurance Company

So my attorney was gracious enough to give the attorney for Fidelity National Title Insurance Company a week's extension on producing the requested documents.  That extension was yesterday.  Still no documents nor any communication for Fidelity's attorney.

Am I surprised???
Is this standard procedure for the way Fidelity handles claims and lawsuits???
Are they just trying to hide something???

This also delays the deposition of the remaining (at least I think he is the only person still employed by Fidelity) Claims Counsel - as difficult as it is since this claim was transferred to Omaha Nebraska from Walnut Creek California.

Was this transfer made just to make it difficult????  It was impossible for me to meet with the person handling my claim due to the distance.  Now I wonder if this transfer to so far away was just to make pursuing a legitimate settlement of the claim difficult????

Again Another Attorney !!!!

I just spoke to my attorney and I guess I misunderstood and since we filed the lawsuit against Fidelity National Title Insurance Company - we are now on our third attorney.  Moving up the ladder I think.

Lee v. Fidelity National Title Insurance Company

Fidelity National Title Company's legal description and erroneous references were resolved in favor of the reasonable expectations of coverage by the Insured.

The California Court of Appeal, First Appellate District, reversed an order granting summary judgment to a title insurer arising from a dispute in ownership of a parcel of land, where the title insurer provided a preliminary report that mistakenly referred to Plaintiffs’ land as comprising of two parcels, although the metes and bounds legal description of the land was accurately stated. 

Plaintiffs are purchasers of land who, at the time of the sale, believed they were buying two parcels of adjoining property, identified as Assessor’s Parcel Number (“APN”) 042-230-090 (“APN 9”) and 042-230-220 (“APN 22”). The purchase contract identified the property Plaintiffs were buying as APN 9 and APN 22.

In my case Parcels Two, Three, Four and Five were in not only the Preliminary Title Report but also in the Grant Deed and from a meeting with the Title Officer in Napa California I was lead to believe that I had two deeded easements from Mount Veeder Road to my property.

Years later, when Plaintiffs decided to sell their property, an investigation uncovered that APN 22 actually belonged to a neighboring property owner. The county assessor advised both Plaintiffs and the neighboring owner that taxes on APN 22 had been erroneously assessed to Plaintiffs, the error dated back to when title to Plaintiffs’ land was conveyed to Plaintiffs’ sellers, and thus title to APN 22 was held by the neighbor, not Plaintiffs.

Years later, when i decided to sell my property, an investigation uncovered that  Parcels Two, Three, Four and Five should not have been conveyed to me as the easement described did not go reach my property.

Plaintiffs’ counsel informed Fidelity of the county assessor’s determination and demanded Fidelity “obtain clear title in favor of [Plaintiffs].” Fidelity’s counsel sent Plaintiffs a letter denying coverage of Plaintiffs’ dispute over ownership of APN 22 because Plaintiffs held title to the legal description as set forth in their grant deed (echoed in the preliminary report) and were insured to hold title to no more than that which is described there. 

In my case I was not denied coverage as the claim was opened by the Fidelity National Title Company Title Officer but the loss of Parcels Two, Three, Four and Five where valued at $0 by an appraiser from Boise Idaho.

Plaintiffs subsequently filed suit against Fidelity for declaratory relief, breach of insurance contract, bad faith, and escrow negligence.

I, too, have filed suit against Fidelity National Title Insurance Company.

The Court of Appeal held that while the preliminary report shall not be construed as a representation as to the condition of title, it “shall constitute a statement of the terms and conditions upon which the issuer is willing to issue its title policy, if such offer is accepted.” The preliminary report, then, is an offer identifying the risk the insurer will agree to assume, which the insured accepts by buying the title policy, and the insured has the right to reasonably expect that the contract thus formed will be consistent with the terms of the offer. 

I not only had the Preliminary Title Report but I went to the Napa California office of Fidelity National Title Company and met with the Title Officer who showed me on the parcel map all six of the parcels listed in the Preliminary Title Report that were subsequently also in the legal description on the Grant Deed also prepared by Fidelity National Title Company.  I thought (reasonably expected) that I had two deeded legal easements from Mount Veeder Road to the property.

The Court of Appeal cautioned to determine if there is an ambiguity, it would look to the “ordinary reading” of words in the insurance policy that are to be interpreted according to the plain meaning which a layman (not an attorney or insurance expert) would ordinarily attach to the words. The Court of Appeal concluded the legal description in Fidelity’s preliminary report was ambiguous because laypersons like Plaintiffs would have no way of knowing from the surveyor’s metes and bounds description of the land in their title policy whether APN 22 was covered. In addition, further ambiguity was created in Fidelity’s report by the attachment of the assessor’s parcel map with an arrow pointing to APN 22 and listing APN 22 in the property’s address. The Court held Fidelity’s preliminary report can be reasonably construed as an offer to insure APN 22 and Plaintiffs could have reasonably expected, under the circumstances, that they were buying a title insurance policy on APN 22 that would conform to the preliminary report.

Although we are just at the discovery period I believed not only from my reading of Parcels Two, Three, Four, Five and Six that I had two legal easements from Mount Veeder Road to my parcel but also these parcels were all listed in my Grant Deed.  And I thought that these easement were not only deeded but also insured.

Needless to say there will be more to write about as this lawsuit continues on.

But I have so many questions. 

Insurance Claims and Settlements

The one thing that I am learning is the importance of research of how other people and their attorneys have successfully navigated this tangled web with their insurance claims and settlements.  It appears that this is necessary in order to achieve a just settlement or outcome with an insurance company such as Fidelity National Title Insurance Company or Fidelity national Title Group or Fidelity National Financial.

It appears that insurance companies are renowned for either not paying claims, paying low settlement amounts or withholding the release of settlement funds until the absolute last possible second.  These are implemented as both money making and money preserving techniques.  Major insurance companies like Fidelity National Financial and its subsidiary Fidelity National Title Group have billions of dollars due to high revenues and cash flow.  Like banks, they invest these funds in order to increase their profits.  Even if a claim should be paid that they cannot avoid paying, they will hold the money as long as legally possible in an effort to increase their own profits through the interest they earn on their investments.

Per my research in addition to delaying the payment of settlements, most insurance companies implement many of the following strategies to cut costs and generate profit:

• Nickel and dime individual clients with various charges with the knowledge that the clients cannot afford to investigate their legal options.
• Make the process lengthy and difficult by constantly changing the personnel handling the claim and moving the client from claims office to claims office.  Sound familiar?
• Provide "expert" evaluations of the value of the loss that are misleading and/or inaccurate knowing that the clients cannot afford to investigate the value of the claim on their own.
• Present clients with a very small initial settlement offer, as many policy holders do not realize they do not have to accept the insurance company's first offer nor questions the validity of the valuation.  (Such as value the loss of an easement to Mt. Veeder Road in Napa County with a value to an existing easement to Cavedale Road in Sonoma County.)
• Wait until the last possible week to disperse the payment of the settlement knowing that this process can last for years.  (It has now been 4 1/2 years since this process started for me.)

The bottom line appears from my research to be the bottom line of profits for Fidelity National Financial and its subsidiary Fidelity National Title Group and subsequently its stockholders- its employees.  The same people who process the claims.

More Research on Fidelity National Fianancial

Per Wikipedia and other sources Fidelity National Financial (NYSE:FNF) is headquartered in Jacksonville, Florida (formerly Santa Barbara California.)  It is a Fortune 500 company that provides real estate and financial services.  The company is comprised of three primary subsidiaries: Fidelity National Title Group, Fidelity property and Casualty Insurance Group, (both wholly-owned) as well as Sedgwick CMS, a minority-owned subsidiary.

Fidelity National Title Group (FNTG), a subsidiary of Fidelity National Financial (FNF) was established in 2005.  it provides title insurance and escrow services.  Title insurance brand names in the Fidelity National Title Group include Aero Records and Title, Alamo Title Insurance, Chicago Title Insurance Company, Fidelity National Title, Lawyers Title, Security union and Ticor Title Insurance.  The Fidelity national Title Group website claims that the group underwriters issue approximately half of the title insurance contracts in the United States.  Fidelity National Title Group provides additional real estate related services through brand names such as Fidelity National Home Warranty, Service Link, and Fidelity Residential Solutions.

The one thing I have not been able to find out is that if Fidelity National Title Group was established in 2005 what companies existed before then?  What company represented me on the title search in 2003 and 2004?  What company represented me in the escrow in 2003 and again in 2004?  What company actually insured m title in 2003 and 2004?

I would obviously welcome any comments if anyone has the answer to these questions.

Learning more about how insurance works

i have spent a lot of time over the last four years and the payment of claims and the motivation to pay claims leaves me with many questions.

For example, if you are in a car accident and it is not your fault it is obvious that your insurance company will defend you so that the other driver's insurance has to pay.

But as with the case with Katie Fisher and Progressive insurance where she lost her life when hit by another driver.  The other driver's insurance paid the Fishers the $25,000 owed by that driver's policy but Progressive apparently attempted to prove that Katie was at fault so that they would not have to pay the Fishers the additional $75,000 in under insured motorist insurance.

And with my title insurance claim - Fidelity National Title Insurance Company did not question when the neighbor's title insurance company said that I did have an easement across their property.  Actually instead of attempting to protect my interest they confirmed that the other company was correct in their analysis and opened a claim on my behalf for the easements that they recorded to my benefit in my Grant Deed.

So what happened next?  The Claims Counsel concurred with the Fidelity National Title Company Title Officer that I had a valid claim.  But then as I was shuffled across the country from Claims Counsel to Claims Counsel it was determined that the value of my claim was $0.

Why????

Huffington Post Article

Apparently per my understanding the insurance industry in California and other states is unique in that it is required to act in good faith - also known as the covenant of good faith and fair dealing - with its insured customers.

This Huffington Post article "Insurance Claim Delays Deliver Massive Profits To Industry By Shorting Customers" from December 2011 states that "a new profit-hungry model, combined with weak regulation, has upended that ancient social contract" between the insured and the insurance companies.

I, of course, do not know if this is the principle that was being applied in the case of my claim but it is interesting that the claim was filed on my behalf by Fidelity, determined by Fidelity to be a valid claim and then assigned the value of the claim for the loss of an almost mile long easement to an 80 acre parcel over looking the Napa Valley at $0.  Is this a coincident?

Fidelity National Title Insurance Company's New Attorney

I just found out that Fidelity has assigned a new attorney to my case.  After having gone through six at the Claims Counsel level - ask me if I am surprised????

I wonder if I am working up or down the proverbial ladder?

Why am I Writing this Blog about Fidelity National Title Insurance Company????

As a former licensed California Real Estate Broker and Architect, when I purchased this property I feel that I had more knowledge and experience than the normal purchaser of property.  I feel that I investigated all issues that were raised on the Preliminary Title Report issued by Fidelity National Title Company.  I trusted Fidelity National Title Insurance Group to protect my interests.

I was very surprised to learn:

• The company who handled title, escrow, prepared the prelim and the grant deed (Fidelity National Title Company) was not the same company that provided the title insurance (Fidelity National Title Insurance Company)
• How easily the claim was opened on my behalf by Fidelity's title officer - this made me very optimistic
• That Fidelity National Title Insurance Company would hire an appraiser from Boise Idaho to value the loss of the easement
• That no one from Fidelity National Title Insurance Company thought that it was unusual (until I pointed it out) that the appraiser from Boise Idaho determined a "cost to cure" value that to be honest is unrealistically low - but also to a different road to a different town in a different county.
• That then this same appraiser from Boise Idaho would value the loss of an almost mile long easement to an 80 acre parcel in the Napa Valley at $0.
• That for the most part none of the Claims Counsels who were, I thought, supposed to be representing my interests would even talk to me on the phone.  That indeed to get any response I had to contact the California Department of Insurance for assistance.
• That the attorney for Fidelity National Title Insurance Company is apparently by his affirmative defenses going to argue that it is my fault that they insured Parcels Two, Three, Four and Five ????   (I am not sure about this but as a lay person this is how I read their affirmative defenses.)

So the reason I am writing this blog about my experience with Fidelity National Title Company and Fidelity National Title Insurance Company.  Buyer beware.  Even if a claim is filed on your behalf by a title officer from Fidelity National Title Company, it appears that Fidelity National Title Insurance Company will do everything (move you from office to office, from Claims Counsel to Claims Counsel, present erroneous and misleading appraisals, etc.) to value the claim at $0 and wear you down.

And why would they do this?  Is it their job and/or loyalty to protect your interest in your property?  Or is it their job and/or loyalty to protect and/or insure their bottom line and by that I mean profit?  And as their [employee] "Stock ownership serves as a motivational force for Fidelity employees who recognize the Company's success is dependent upon their efforts and contributions,"  is this not a conflict in interest?  Does it not appear that it is beneficial to the stock holders that the less they pay in claims the higher the value of their stock will be?

The only thing I can say for certain is this entire situation is exhausting but if someone had to go through this horrible situation I am glad it is me and not one of my clients.  I have a different opinion and that is that my clients deserve the best representation and service and honesty and loyalty that I can possible provide for them.

So What Happens Next with Fidelity National Title Insurance Company?????

So where do we stand now and what happens next?

Fidelity National Title Insurance Company made an offer to settle a couple of months ago for $50,000 but this amount in my opinion does not even begin to cover the cost of the loss of the easement let alone all of the other costs now involved so we did not respond.

As the Title Officer from Fidelity National Title Insurance Company opened the claim on my behalf and as it was confirmed by their Claims Counsel - I believe that we are all in agreement that there is a valid claim - which means that it just comes down to how much?

First is the actual value of the lost easement.  Their appraiser from Boise Idaho valued the loss of an almost mile long easement to an 80 acre parcel at $0.  To show how subjective appraisals can be I, too, did a Property Valuation Report (formatted exactly like an appraisal) which valued the loss of the easement at substantially over $1,000,000.  I felt qualified to do this as a former Real Estate Broker having completed a college level course in Real Estate Appraisal.  And there are two other appraisers (my appraiser's fee is $6500) preparing two more appraisals.

I feel that other things need to also be included in this evaluation.  First and foremost the property was left with only a deeded entrance through a commercial and manufacturing facility which had a tremendous effect on the attempted sale of the property.  Next although the price the property would have sold for if it had the easements which I thought that I had when I purchased the property is hypothetical and needs to be based on comparable sales - the value of the property without the residential easement is a known value as the property was actively on the market the entire time.  And finally the effect that having this cloud exist during the prime selling time for this parcel - meaning during the fair weather months of June/July through October when Fidelity finally admitted that I should not have been granted Parcels Two, Three, Four and Five.

So determining this value is important.

But then there is the literally hundreds of hours that I have personally spent peacefully trying to convince Fidelity National Title Insurance Company that this loss was not $0.  No one would even speak to me.  So there is the cost of my time.  (And yes, this was extraordinarily stressful.)  And Fidelity National Title Insurance Company still has no respect for my time nor my attorney's time as they just chased us to Walnut Creek for depositions of a person employed by them who was not even there because the attorney for Fidelity forgot to communicate with my attorney.

And then as they would not discuss this situation with me peacefully I was forced to hire an attorney and file a lawsuit against them.  So now in addition to my attorney's time there is filing fees, court reporter and videographer fees, the appraiser's fee, and more of my time and energy involved.

And then there is the time I am spending writing this blog.

Obtaining the Easements from the Owners

When I was first assigned to the Claims Officer in Walnut Creek the first thing he was going to do was to try and obtain the easements again from their current owners.  After the claim was transferred first to Chicago and then the two Claims Counsels in Omaha no effort was made to obtain the lost easement again.

On June 25, 2009 the third Claims Counsel emailed the options for settling the claim:


1. Pay the insured his or her actual loss [Conditions and Stipulations 6].
2. Defend an insured who has been sued [Conditions and Stipulations 4(a)].
3. Prosecute an action on behalf of the insured to establish or clear title
[Conditions and Stipulations 4(b)).
4. Pay the insured policy limits [Conditions and Stipulations 6(a)].
5. Pay the party adverse to the insured [Conditions and Stipulations 4(b) and 6(b)].
6. Cure the insured's title by obtaining a deed, easement, release or other
instrument [Conditions and Stipulations 4(b) and 6(b)].

Looking at this list the first, fourth and sixth appear to be applicable to this claim.

To my knowledge no effort was made to cure the title by obtaining the easement.  A "cost to cure" appraisal was done by the appraiser from Boise Idaho and he determined that an 'equivalent' easement could be obtained with a value of purchase of $3500.  Today I was communicating with the owner who originally questioned this easement and as the easement across her property constituted approximately half of the lost easement - I thought I would ask her if she would have sold the easement across her property for $1750 and, if not, at what price.

"We have no interest in selling any easement through our property at any price," was her response.  I believe that this is understandable as both of the owners of this property are or have been public officials with the City of San Francisco and without my easement their property is very private.  They had purchased their property less than a year before the defect in the title was discovered for $2,500,000.

The Difference Between FNTG and FNTIC and FNTC again

Th mystery continues - at least I for one do not understand the difference between Fidelity National Title Group and Fidelity National Title Insurance Company and Fidelity National Title Company.  I thought the reason, for example, that Fidelity National Title Insurance Company denied that they employ escrow and title officers was because these individuals are employed by Fidelity National Title Company.  But then last night I noticed this:

And in it's Answer the attorney for Fidelity National Title Insurance Company wrote, "Defendant admits that its claim officer wrote a letter regarding payment of the claim".

So my new questions are as follows:

Why are escrow and title officers not employees of Fidelity National Title Insurance Company but it appears that the Claims Counsel is?

And even more importantly - why are claims not handled by Fidelity National Title Insurance Company????

Insurance Bad Faith Defined

Insurance Bad Faith Defined by Wikipedia:

"An insurance company has many duties to its policyholders. The kinds of applicable duties vary depending upon whether the claim is considered to be "first party" or "third party." A common first party context is when an insurance company writes insurance on property that becomes damaged, such as a house or an automobile. In that case, the company is required to investigate the damage, determine whether the damage is covered, and pay the proper value for the damaged property. Bad faith in first party contexts often involves the insurance carrier's improper investigation and valuation of the damaged property (or its refusal to even acknowledge the claim at all). "

So here is what I feel that Fidelity National Title Insurance Company did to fulfill it's responsibility:

1. Investigate the damage.  FNTIC hired an appraiser from Boise Idaho to do an appraisal of the loss of the ingress/egress easement in Napa County California.  His first appraisal was a "cost to cure" appraisal where he valued a prescriptive easement which the property already benefited from to Cavedale Road in Sonoma County for the lost easement to Mt. Veeder Road in Napa County.  The same appraiser from Boise Idaho presented an almost identical second appraisal which determined the loss of the almost mile long residential easement did not affect the value of the subject property.  So the resulting loss was valued at $0.
2. Determine whether the damage is covered.  It was determined to be covered by the second Claims Counsel in Chicago.
3. Pay the proper value for the damaged property.  The first appraisal determined the amount to secure, survey and record the easement to Cavedale Road in Sonoma County was $13,500.  The second appraisal determined that the diminution in value was $0.

Did Fidelity National Title Insurance Company properly investigate the loss of the easement by hiring an appraiser from Boise Idaho?  Was determining a "cost to cure" with an easement to another road in another County correct?  or should it have been determining a "cost to cure" of the actual lost easement?  And was an attempt made to obtain that easement from the current owners?  Were those owners asked what they would sell the easement for?  How did they determine that the loss of an almost mile long easement through residential and vineyard property leaving only an entrance through a commercial/manufacturing property caused no ($0) diminution in value?

For years I begged Fidelity National Title Insurance Company to talk to me and work with me on settling this claim before I was forced to hire an attorney.

Do Insurance Companies Represent the Insured or Their Stockholders??

Over that last four years the one thing that I did not understand was why I felt my insurance company was not representing my interests?

Why were they not attempting to regain the lost easements?  And if this was not possible, why were they not even willing to discuss with me the loss?

Needless to say I have spent hundreds of hours reading, writing and trying to understand this.  And as far as I can tell the ultimate question is do insurance companies have a responsibility to the insured or to their stock holders?  Here is my understanding and questions.

First, my relationship with my insurance company is not an agency relationship but a contractual relationship. The way I understand this they have to act in good faith but it is not a fiduciary duty.  

When I began researching on the Fidelity site (www.fntic.com) in 2009 I found this:

"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." 

So here is what I do not understand and it seems to me that it is a conflict of interest.  Per this statement the employees of Fidelity own the stock so therefore it is to the employee's benefit to increase the value of the company as it increases their own net worth.  So the income for the company comes from the premiums paid and I would assume also that this money is invested.  And then claims would be paid from these funds.  So wouldn't it be financially beneficial for the employees to not pay claims as it would increase the value of their stock?

It seems that  the basic equation would be:

Insurance premiums  -  Claims Paid  =  Profits

So if the claims are valued at $0 like mine then this would increase the profitability of the company which means that as Fidelity has employee stock ownership it would be beneficial to the employees to value claims at $0.  Right?????  Am I not understanding something here?  How are they defining "Company's success"???  The company's financial success?

My reaction to Fidelity National Title Insurance Company's Verified Answer to Third Amended Complaint

After the first part of my deposition (we have still not completed it) I actually felt for the very first time since I had spoken to the first Claims Counsel in Walnut Creek that someone from Fidelity was actually listening to what I had to say and was not only listening but attempting to understand how complex this situation had become.

Then I received his Verified Answer to the Third Amended Complaint much of which all I could do was shake my head in wonder (that they did not employ escrow officers and title officers nor prepare things like Grant Deeds) and when I got to the portion of Affirmative Defenses I got extremely angry as I felt that Fidelity was saying that it was my fault that they had listed Parcels Two, Three, Four and Five not only in my Preliminary Title Report but also in the Grant Deed.

Well on the first part of this - I did not understand this until a couple of days ago when I realized that there were two affiliated companies Fidelity National Title Company and Fidelity National Title Insurance Company.  So one obvious reason for this division is so that FNTIC can claim that it has no responsibility for the errors made by FNTC.  This makes sense in claims cases like this one and I am sure that there are other justifications for this distinction.  But I confess that not only did I not realize this when this particular property was in escrow not once but twice and was insured twice but I did not realize this even though I began using Fidelity almost 20 years ago as both a licensed real estate agent and later broker.  And it does not totally make sense to me that the offer to insure which is presented by the Preliminary Title Report is prepared by a company other than the company that actually insures the title.  Call me stupid.

When I read the Affirmative Defenses I felt betrayed by my insurance company Fidelity National Title Insurance Company as I had expected that it was their job to protect me, the insured, and instead of taking responsibility for the error that was made by Fidelity, they were trying to blame me.  I just plain did not understand what I felt was a direct attack.

Then a few weeks later the situation with Progressive Insurance and the death of Progressive's client in a 2010 car crash in Baltimore was all over the news due to an online post made by her brother Matt Fisher titled "My Sister Paid Progressive Insurance to Defend Her Killer In Court."  Not only did I read Matt's post but every article I could find. "At the trial, the guy who killed my sister was defended by Progressive's legal team," Fisher wrote.  "If you are insured by Progressive, and they owe you money, they will defend your killer in court in order to not pay you your policy."  The way I understand what happened is that Progressive refused to pay the claim for the benefit due the dead girl's family (which they used to pay off her student loans) and the way the system works in Maryland they had to take the other driver to court to prove that he had run a red light and was responsible for Katie Fisher's death.  Progressive's attorneys were not present to defend the other driver but rather to prove that Katie was responsible for the crash to relieve Progressive of their liability to pay the claim.  (This is a brief description but there is a lot of articles plus Matt's posts to read.)

As I read this it became apparent the meaning of the Affirmative Defenses in Fidelity's Answer.  Rather than pay me for the claim for the loss of the easement, they strategy would be to show that I was at fault or it was my responsibility.

And the Affirmative Defenses Go On

Here are even more of their Affirmative Defenses.

"Defendant [FNTIC] is informed and believes and thereupon allege that Plaintiff [me] was negligent, legally responsible, comparatively at fault, or otherwise at fault or responsible for the loss and damages complained of, if any there were."

• I did not write nor include in the Grant Deed the four lost parcels so I do not understand how this applies.

"Defendant [FNTIC] is informed and believes and thereupon allege that the failure to limit discretion of the finder of fact as to the amount of punitive damages violates Defendant's constitutional rights."

• I do not understand this.

"Defendant [FNTIC] is informed and believes and thereupon allege that California Law impermissibly discriminates against Defendant by limiting the amount of punitive damages which may be awarded in certain cases, while not providing limitations in the pending case."

• Again, I cannot comment as I do not understand this.

"Defendant [FNTIC] alleges that defendant has the right, at its option, to settle a claim by making payment in the amount of the loss to Plaintiff and at the time payment was made in the amount of the loss, any liability or obligation to defend, prosecute or continue any litigation terminated.  Defendant diligently and appropriately made payment to Plaintiff [me] under the terms of this policy and thereby terminated any liability or obligation to defend, prosecute or continue any litigation."

• Fidelity National Title Insurance Company diligently and [in]appropriately determined that the loss was zero by accepting the opinion of their appraiser from Boise Idaho.  LOL.

"Defendant [FNTIC] alleges that Plaintiff [me] failed to provide proof of loss or damage signed and sworn to by Plaintiff within 90 days after the Plaintiff ascertained the facts giving rise to the alleged loss or damage.  Said failure to provide the proof of loss or damage was a breach of the contract that contributed to or was the primary caused of any alleged delay in the processing of the insurance claim."

• This requirement was waived by the second Claims Counsel and even after that both Claims Counsel numbers three and four hired and procured two appraisals from the Boise Idaho appraiser - so I do not understand how this caused the delay.  I actually had to contact the California Department of Insurance in order to get a response from Fidelity National Title Insurance Company.

"Defendant [FNTIC] alleges that Plaintiff [me] failed to give the Company a written statement at the address provided in the insuring contract.  Said failure to provide the written statement to the address provided in the insuring contract.  Said failure to provide the written statement to the address provided was a breach of the contract that contributed to or was the primary caused of any alleged delay in the processing of the insurance claim."

"Defendant [FNTIC] alleges that after the foreclosure of the subject property, Plaintiff [me] by and under the terms of the insuring contract no longer was an insured and was no longer entitiled to benefits under the policy of title insurance."

• The research and claim that was filed on my behalf was almost a year before this date and Fidelity ordered the second appraisal after this date as we were still attempting to settle this matter so this does not make sense to me.

"Defendant [FNTIC] alleges that by the agreement under which Plaintiff [me] accepted the insurance proceeds for her loss there was an accord and satisfaction."

• Accord and satisfaction??????  I think not.

"Defendant [FNTIC] is informed and believes and thereupon allege that some or all of Plaintiff's [mine] causes of action are barred by the applicable statutes of limitation including but not limited to Code of Civil Procedure Sections 337, 339 and 343."

• I will leave this to the attornies.

"Defendant [FNTIC] is informed and believes and thereupon allege that some or all of Plaintiff's [mine] causes of action are barred by the doctrine of laches."

• This is a delay in pursuing a claim but the claim was actually opened on my behalf by a title officer with Fidelity.  So I do not understand this.

Even More Affirmative Defenses of Fidelity National Title Insurance Company

Onward and upward....................

"Defendant [FNTIC] alleges that Plaintiff [me] failed to mitigate her alleged damages, if any."

• I just do not again know how to respond?
• What was I suppose to do about Parcels being recorded and insured that were not the sellers to sell to me?  
• And that Fidelity National Title Insurance Company insured?

"Defendant] [FNTIC] is informed and believes and thereupon allege that Plaintiff [me] is barred from recovery because she ratified, in whole or in parts, Defendant's alleged wrongful acts."

• So did they do wrongful acts?
• And what acts did I ratify?

"Defendant [FNTIC] is informed and believes and thereupon allege that Plaintiff [me] has released, waived and is estopped from asserting the claims set forth in the TAC."

• Another mystery to me.............released?  Waived?  Estopped?

Getting tired so more Affirmative Defenses tomorrow - we are not even halfway through !!!!!!

More Affirmative Defenses of Fidelity National Title Insurance Company

Continued...............

"Defendant [FNTIC] is informed and believes and thereupon allege that if any wrongful conduct was engaged in by other defendants or third parties, that Plaintiff [me] directly or indirectly acted in concert with other defendants or third parties or knowingly ratified or approved such conduct, and are therefore precluded from any recovery under the doctrine in parti delicto."

• Well I do not even know what questions to ask on this one.  I acted in concert??????
• With whom?  Knowingly ratified?  What?
• In parti delicto??  Per Wikipedia,  "The phrase means, in essence, that since both parties are equally at fault, the court will not involve itself in resolving one side's claim over the other, and whoever possesses whatever is in dispute may continue to do so in the absence of a superior claim." 
• As I just looked that up - what two parties?????

"Defendant [FNTIC] is informed and believes and thereupon allege that Plaintiff [me] is guilty of unclean hands with regard to the matter set forth in the TAC."

• Well I admit I have absolutely no idea what unclean hands is - that is in the legal term - or are they talking about when I am gardening or petting the St. Bernard or cleaning the bathroom?????
• Unclean hands??  Per Wikipedia, "Unclean hands, sometimes called the clean hands doctrine or the dirty hands doctrine, is an equitable defense in which the defendant argues that the plaintiff is not entitled to obtain an equitable remedy on account of the fact that the plaintiff is acting unethically or has acted in bad faith with respect to the subject of the complaint—that is, with "unclean hands".
• I do not think I have been acting unethically.  The claim was opened by a title officer on my behalf.  I did not prepare the Preliminary Title Report nor the Grant Deed.
• I just do not even know what to say or ask.

"Defendant [FNTIC] is informed and believes and thereupon allege that Plaintiff [me] did not rely on any act 

or omission of Defendant [FNTIC]."

From www.fntic.com:

• Fidelity employees are committed to providing our customers with a level of satisfaction that is unparalleled in the title insurance industry. Based on our experience and expertise, we are confident that you'll appreciate the Fidelity Difference.
• At Fidelity, commitment is not just a word--it's a conviction. We take pride in our desire to serve our customers to the best of our ability.
• Title insurance is a unique form of insurance. It provides coverage for future claims or future losses due to title defects which are created by some past event (i.e., event prior to the acquisition of the property.)
• 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.
  
  
  "Rely On Fidelity National Title To Protect Your Investment"
  
  
  
  
  To be continued...............................
  
  
  
  

Affirmative Defenses of Fidelity National Title Insurance Company

So back to the Fidelity National Title Insurance Company's Verified Answer to Third Amended Complaint.

"Defendant [FNTIC] is informed and believes and thereupon allege that Plaintiff [me] had knowledge of and assumed the risks incident to the matters set forth in the TAC.  The damages alleged by Plaintiff [me], if any, were caused by or arose out of such risks."

• I feel that I questioned via the title officer to produce the public records of all easements namely Parcels Two thru Six and after that point I relied on Fidelity National Title Insurance Company to protect my real estate interests.  Although there is always risks I felt that by purchasing title insurance I was given protection.

"Defendant [FNTIC] is informed and believes and thereupon allege that Plaintiff [me] is guilty of negligence which contributed to her alleged damages, if any."

• Negligence is the failure to use reasonable care.  Prior to purchasing the property I met with title and received documents of all of the public records and a map with the parcel easements shown on it.  I did not prepare the Preliminary Title Report nor the Grant Deed both that described the Parcels.
• How was I negligent?

"Defendant [FNTIC] is informed and believes and thereupon allege that the damages suffered by Plaintiff [me], if any, were proximately caused or contributed to by the acts or omissions of other defendants and third parties and not by any wrongful conduct of Defendant [FNTIC]."

• By whom?
• The only thing I can think of is the Preliminary Title Report and the Grant Deed prepared by Fidelity National Title Company and affiliate of the Defendant [FNTIC].  My understanding was that the Preliminary Title Report constituted a statement of the terms and conditions upon which Fidelity National Title Insurance Company was willing to issue its title policy.
• And the Grant Deed also prepared by Fidelity National Title Company was the recorded document prepared prior but recorded at the close of escrow that described the property and described what was agreed upon to be insured.
• At least this is what I thought.

To be continued.....................

More Questions of Fidelity National Title Insurance Company

So to continue on my questions from last night, back to the letter from Fidelity National Title Group:

So here are some of my questions:

Why was my claim transferred from Walnut Creek to Chicago to Omaha?

Was it to make it difficult for me to meet with my Claims Counsel?

Was it to make it difficult to depose anyone who supposedly even knows about this claim?

As Fidelity National Title Insurance Company chose to transfer the claim why isn't it their responsibility to produce someone who knows about this claim?

Isn't it Fidelity National Title Insurance Company's obligation to produce the requested documents in a timely fashion?

Why would Fidelity National Title Insurance Company hire an appraiser from Boise Idaho to appraise a property in the Napa Valley in California?

Why did the Claims Counsel who requested the names of local appraisers from me (which I provided) did an appraiser from Boise Idaho?

Since Fidelity National Title Insurance Company chose to hire an appraiser from Boise Idaho, isn't it their responsibility to make that appraiser available to me and my attorney to depose?

Why is the escrow and title officers employees of Fidelity National Title Company but the insurance policy is issued by Fidelity National Title Insurance Company?

Perhaps the answers to these questions seem obvious and/or you have an opinion but I would welcome all input.

Depositions of Fidelity National Title

Although I spent hours and hours preparing all of the documents requested by Fidelity's attorney and was on time to my deposition in Walnut Creek taking an entire afternoon off of work, the same courtesy was not extended to me and my attorney by Fidelity National Title Insurance Company.

First, they requested an additional two weeks to produce the documents.  As my schedule is tight as I have two children to take care of and also have to work, I find this an imposition as I need those two weeks to review the documents.

Then as I mentioned my attorney, a court reporter, a videographer and I all drove to Walnut Creek on Friday morning to depose the officer and Vice President of Fidelity National Title Insurance Company who signed the verification of Fidelity National Title Insurance Company's Verified Answer to Third Amended Complaint.  This deposition was confirmed by my attorney that we were definitely on the calendar of the attorney by his assistant.  But when we arrived it was confirmed the deposition would have to be cancelled.  Between renting a car, the toll fee and lost work time this cancellation cost me over $700.

And it was raised as to whether this individual was knowledgeable to respond to questions about what had occurred.  I find the statement "I am informed and believe an on the ground allege that the matters stated in the foregoing document are true" a little confusing but I think a "d" is missing.  In which case he is stating that he is informed and that the matters in the document are true.

So, for example, when the Answer states, "there was a prescriptive easement from Cavedale Road to the subject property," he is informed and knows this to be true.  I would assume in order for him to be informed and verify that this statement is true, he would need to have knowledge of the case and the property.

But instead a new attorney from Fidelity National Law Group sent this letter today in reference to both this Vice President and the appraiser from Boise Idaho:

So they have written that the person who signed the Verification "lacks information relative to the case."  So he declares under penalty of perjury that he is informed but then per the Senior Trial Counsel he lacks information relative to the case.  I do not understand.

I need to get some work done so I will continue with more things that I do not understand tomorrow.

Fidelity National Financial vs. Fidelity National Title Company vs. Fidelity National Title Insurance Company

Back for a minute to last night's post - I am still scouring the internet and the various websites trying to determine the relationship between these three entities.  But it does explain some of the denials in the Response.  I would still like to determine ultimately who is responsible for the recording of Parcels Two, Three, Four and Five in my Grant Deed.

But I am going to take a short pause in delving into Fidelity National Title Insurance Company's Verified Answer to Third Amended Complaint to report on the letters received today from Fidelity National Law Group.