The California Insurance Department and Fidelity National Title Insurance Company Settle Illegal Rebating Claims

 

February 15, 2013

 

Again not surprising that we, the consumers, may not be the "clients" that Fidelity National Title are seeking.....................

It was reported that the California Insurance Department entered into a $1.25 million settlement agreement with Fidelity National Title Insurance Company and its affiliates, regarding claims that the company engaged in illegal rebating activities. Fidelity also agreed to reimburse the Department $175,000 of its costs. An investigation revealed that Fidelity allegedly allowed realtors and other providers to pay a sublicensing fee for use of a technology platform to access orders placed with the insurer. The agreements were allegedly used to induce the referral of title, escrow and home warranty business.

Has Anyone Had a Good and Fair Experience in Settling a Claim with Fidelity National Title Company??

An interesting question at best.  I have heard from dozens of people who feel as I do - that Fidelity National Title Company was terrific during the escrow and closing process...............

but when a problem occurred with the property their was absolutely no one their to help the insured.  The claims counsel assigned to the claim was not their to assist the claimant, the insured, but rather was there to represent Fidelity National Title Insurance Company and their shareholders - of which the company take pride in the fact that the employees are shareholders.  To me this is a conflict in interest as the more claims that are not paid - the more valuable the shares of Fidelity National Title become.

Additionally, which is not apparent at first, all of the communication and the distances of the Fidelity National Title employees and people they hire such as the appraiser are designed to make suing them difficult and expensive and inaccessible.

My advise for working with a company like Fidelity National Title Insurance Company is to get everything in writing.  When something is not clear push hard for clarity - in writing.  When you receive a generic legalize type letter push hard for clarity - in writing.

I believe the treating of claims is completely hidden from the insureds when they purchase their title insurance. There is no one there to truly represent your interests in your property - at least there was not in my case. The claims counsels were there to represent the bottom profit line of Fidelity National Title.

And Yet Another Claimant Heard From

....and once again - the title company is not making an admission of being in the wrong and yet they are willing to pay something (I did advise against just using their appraissal as they will just low ball the problem in my experience) - but here is another good example of how confusing the process is and how the claims counsel does not truly appear to be there for the client/customer/us.

 

 

"Just got an email from the title insurance company...it's a bit greek to me...mind reading it and giving your opinion on it?

Thanks,"

 

Good morning:

One of our options under the policy in the case of a claim is to determine what the loss would be, whether or not we believe there is coverage.  In this case, here is an easement across most of the paved area on Lot 8 so it appears to be a trespass, not a title issue.  Also, because there does not appear to be a recorded easement for the storm drain that allegedly runs through Lot 9, it too would appear to be a trespass and not a title issue.

 
Under the policy, the measure of loss is the difference, if any, in the value of the property with and without the issues in question.  Although we do not concede that there are claims or rights to the property that were not excepted from coverage, we have opted to determine the diminution in value attributable to the paved driveway and the underground storm drain.  If you have any ideas of what you believe the loss to be, then please let me know.  Otherwise, I will retain an appraiser to evaluate the property and provide a value.

 Thank you,

Gag Orders and Fidelity National Title Insurance Company

Well I believe that communication is finally starting to take affect.  In addition to this blog now having been read by tens of thousands of people and that number is growing every day........... I now have a new statistic to keep track of!!

Two people who contacted me while their cases/claims were still active have settled with Fidelity National Title.  And the good news for this blog is that in both cases they were offered substantially more money by signing a gag order - that is an agreement to not discuss the particulars of their case - than if they did not.  Needless to say I did not press them for more information - their communication was merely a thank you and stating they could no longer participate by telling their stories.

So although we cannot all benefit from their experiences other than what may already be posted on this blog - the good news is apparently (hopefully) Fidelity National Title is starting to listen and perhaps - just perhaps - is treating their clients with more respect than I feel they treated me.

An Interesting Conversation About Fidelity National Title

First, no I have not given up blogging about Fidelity National Title Insurance Company. I have been tied up with work and getting my daughter off to college.

I had another email conversation with a Fidelity National Title claimant. She felt that no matter what she presented nor how she presented it especially when it was obvious that the title company was responsible and wrong - that they had a law or legal precedence with an "angle" to make them not responsible.  And she expressed a desire that the tables could be turned on the title company.

She expressed gratitude for the directions and advice that the blog and I provided. But she expressed a fear that Fidelity National Title was reading the blog and could be using it to find more ways to "hide under the radar".  And she wondered if David Saag had been able to help any of the individuals that I had referred to him.

First, on David Saag, I have not heard that he has been able to help any of the individuals that I have referred to him. If I personally was having a difficulty with a claim with Fidelity now I certainly would contact him and other executives and I would not depend on the Claims Counsel assigned to my claim to handle it and handle it properly.

And I do not know if anyone from Fidelity National Title is reading this blog. No one has contacted me nor offered any commentary on what is being written. Nor is anyone offering to answer the myriad of questions that I have asked in any capacity - let alone from the viewpoint of Fidelity National Title Company or Fidelity National Title Insurance Company.

So are they using the information on this blog to find new and unique ways to "hide under the radar"? I certainly hope not as my purpose is to raise questions, to explain to people who are thinking of using Fidelity National Title Company to protect their real estate investment to carefully weigh this choice and make sure that they are well protected and to unite people who are in claims with Fidelity National Title Insurance Company with as much information as possible so that they can have success and not experience what I did.

To that end - I will continue to research not only Fidelity National Title but the title insurance industry so that we (the consumers) all can benefit.

 

 

My advice in working with Fidelity National Title

Having heard of many other stories of Fidelity National Title other than mine they all have many things in common.

First, I believe all lenders require that title insurance be purchased.  And I believe that if there is a problem and you need to open a claim - there is a potential (probability) that there will be a problem with the coverage and the title insurance protecting your real estate investment.

If I were to use Fidelity National Title again (never) I would insist on sitting down with the most senior title officer available and I would go over every square inch of the preliminary title report.  I would record the conversation.  I would request copies of every public document mentioned in the preliminary title report and I would date stamp the day I received these and have the title officer sign and acknowledge that he/she gave them to me.  And whenever possible I would only communicate with both the escrow officer and the title officer in writing and I would keep a chronological copy of all communications.

In other words I would treat the escrow as the beginning of a potential lawsuit over some future error discovered in my title that is going to require me to file a claim with Fidelity National Title Insurance Company.

And although it was not my experience but others would advise that in the event your title needs to be defended in court  by Fidelity make sure that you are choosing your own attorney so that you are confident that they are representing you and your interests and not Fidelity National Title Insurance Company and their interests.

Should you use Fidelity National Title ????

Dear Ann, I came across your blog after doing a search for Nancy Vantassel - her name was on a long list of individuals that appear to be involved in your case. I am extremely concerned after reading something briefly about your complaints regarding an easement, etc. We are in contract with a property with an easement (and judgments to enforce the easement) and Nancy Vantassel at Fidelity was able to get a us a clean title when First American Title would not. I am of course concerned about the reliability of this title company (and whether they will continue to provide clean titles in the future) and wonder what I should do next - walk away from this perfect property (great even with easements) or inquire with a different title company after the all the concerns you have raised! Without title insurance, we can't get a loan . . . Any thoughts, advice, or other title company's would be so helpful to know at this time. Many thanks. Best regards,

"My advise would be - if you love the property - buy it.  But definitely sit down with the title officer - where is the property??  I would talk to the most senior person you possibly can who works for Fidelity.  Be firm and honest and tell them about this blog.  I have heard from many people (all of which feel that Fidelity did not adequately represent them) and in almost all instances it is about easements.

 

So get everything - absolutely everything - in writing from them.  Accept no verbal communication.  Let them know that you are extremely concerned about how they are actually going to "insure" you in the future."

 

Phillips Lytle Attorneys at Law - New York State

A reader provided this firm as another law firm that apparently has worked for Fidelity National Title in the New York State area.  Here is the link to their information on the service they provide for insurance coverage.

http://www.phillipslytle.com/PracticeDetail.aspx?id=63

Again - please feel free to send in the names of firms that were hired to represent you by Fidelity National Title and/or was representing Fidelity National Title.

Thank you.

Another Phone Call And Another Claim - Small World

The foundations are just being formed for the cottages at this new Zen Center here in Northern California - a project that I have been working on for more than a year.  And I just received a phone call from someone there - not about the design or construction - but because he had found this blog due to them having a problem with the title on the new Zen Center.  Needless to say since I was just up there a week ago - the last thing he expected to find was that I, too, had a problem with a claim with Fidelity National Title.

 

Hopefully I will be able to help them get this matter resolved a lot more quickly and a lot less painfully than my own claim with Fidelity National Title Insurance Company!!!

 

Dear XXXXX,

I am so happy to hear the contractor is starting the foundations on the cottages - as excited as I am to see them go up - I confess I am more excited about the timber framing coming from Japan for the temple.  I am very proud to have been able to work on this project and look forward to working with all of you on the design of the main meeting center in the future.

Needless to say it is a very small world that you happened to find my blog on my experience with Fidelity National Title Insurance Company.  And it was very disconcerting to learn that you, too, are having an issue on the property in XXXXX with an easement that crosses the Zen Center’s property that was not disclosed to you in the title report.  And the resulting proposed settlement of $500 from the appraiser in Connecticut on a property here in Northern California - well I cannot help but think that he is not familiar with the area.  (Considering the additional freight bill we just had to send you required by Caltrans is almost that amount.........................)

 
As handling a dispute with Fidelity is about as far away from the mission of the Zen Center as one can possibly get - I am glad that you called me.  As I spent five very long years and thousands of dollars trying to resolve my claim with Fidelity my suggestion would be to contact David Saag who is the Western Region Senior Vice President and Chief Claims Counsel immediately and ask him to oversee this claim so that you can receive a fair, just and speedy resolution of this matter.  In my experience trying to work with the assigned claims counsel is not productive and you will most likely bounce from one person to another.

I am copying Mr. Saag on this email in hopes that he can quickly intercede on your behalf and get this resolved so that we can all get back to the work of getting the new Center built and in use for its intended purpose.

Ann Zollinger

 

Kreise Enderle Attorneys at Law

After one of my reader's posts this afternoon on this law firm handling 150 cases a year for Fidelity National Title,  I went searching on the internet and found this information on Kreise Enderle Attorneys at Law:

“Insurance defense

In our comprehensive insurance defense practice, we represent clients including:
Automobile insurance carriers in no-fault coverage disputes and motor vehicle negligence claims
General liability insurers in premises liability and general liability claims

Title companies in real estate disputes and title claims

Our insurance defense attorneys provide effective strategies to reduce your claim costs.  

See more at: http://www.kreisenderle.com/practice-areas/#insurance-defense”

 

Whenever I read things like this it always raises questions.  First, what exactly is "comprehensive insurance defense practice"??

 

It does say specifically that they represent Title Companies (such as Fidelity National Title Insurance Company I assume) in real estate disputes and title claims.  Am I correct in my understanding that they represent Fidelity and not the insured??  And is this with third party disputes and claims?  And, if so, why would they then not represent the insured??

 

"Our insurance defense attorneys provide effective strategies to reduce your claims costs."

 Oh boy.  Am I reading this correctly that Kreise Enderle's job is to reduce the claims costs by coming up with a strategy to not pay claims????

 

It sure does not look with these statements that they are looking out for the interests of the insured - but rather looking out for the interest of the person employing them - their client - the title company.  Or am I reading this incorrectly??

 

If Fidelity National Title makes an error - do they defend your title??

So you all remember my blog post about the Maryland case involving Progressive Insurance??  In a nutshell Progressive hired an attorney who sat at the defense table trying to prove (unsuccessfully) that their dead client was at fault in her fatal automobile accident to get out of paying the claim.  When I heard about this I was beyond appalled but as I was in the middle of my own claim with Fidelity National Title Company et al - I felt there was a resonance of truth in this story.

In my particular case I believed I had an easement.  Fidelity confirmed they had made a mistake and there was no easement and opened a claim.  They valued the loss of the easement at $0 using an appraiser from a different state.  BUT apparently in the middle of the four year claim they discovered that the easement was valid (and did not tell me) and made no attempt to defend the easement.  Of course, I did not discover this fact until another two years later during discovery and by that time we were 24 hours away from the Settlement Conference and I no longer owned the property.

But what happens in the case that Fidelity makes an error and you need to go to court to retain your property rights against your neighbor??

From the Fidelity National Title website:

"How Does a Title Insurance Policy Protect Against All These Claims?
If a claim is made against your insured title, Fidelity National Title Insurance Company protects you by: (1) Defending your title, in court if necessary, at no cost to you, and (2) Bearing the cost of settling the case, if it proves valid, in order to protect your title and maintain your possession of your property."

Sounds great, doesn't it??  Please read this comment that was posted on my blog:

"The title company accepted the responsibility of the claim but mandated that the insured accept an outside hired attorney of the title company's choice to represent the insured.

However, what had become apparent in the process was that the title company was not acting in good faith for the responsibility of their error. But instead proceeded with action to legally eliminate their responsibility of the error by hiring an attorney to manipulate an outcome so that the title company would have little to no responsibility. After this was accomplished the title company then discontinued coverage and representation of the insured.

Even though this was "successfully" accomplished by the title company and their hired outside council. The title company remains accountable for the original error no matter what course of action the company took to minimize the damage of the original error made by the title company.

The insured continued to pursue the original issue with the title company and he received another letter. Only this time, from an "outside attorney" hired on "behalf" of the title company. This attorney actually had the audacity to issue a cease and desist notice on behalf of the title company."

So here is the question for today.  After making an error in your title policy and then defending that error in court and losing whether with an in house or outside attorney - doesn't Fidelity National Title Insurance Company still then owe you for your loss??

And if Fidelity National Title hires an attorney are they representing you, the insured, or like Progressive in the above example - are they representing the financial interests of Fidelity National Financial and its subsidiaries including Fidelity National Title Insurance Company??

The person who wrote to me felt that the outside attorney was not representing them but rather attempting to manipulate the outcome to alleviate the responsibility of Fidelity National Title - just as the attorney for Progressive was trying to prove their dead client was at fault.

 

When a person has a claim with Fidelity National Title Company or Fidelity National Title Insurance Company who is really there to represent the interests of the insured??  In my experience it was not the claims counsels as it was apparent that their interest was to represent the stockholders (themselves) of Fidelity National Financial.  And if you end up in court with a third party it appears from the stories that I have been told that again the attorney who is there is not to represent you, the insured, but rather Fidelity National Title Company. 

 

 

 

How does FideltyNational Title Treat People During the Claims Process??

Another two hour conversation yesterday.  I have now had numerous conversations with people who were involved in the claims process with Fidelity National Title.  The specifics of the claims are all slightly different but the similarities are remarkably the same.

1)  Every individual I have talked to has felt frustrated, very angry and that they were not being treated fairly or as valued customers.  Class action, fraud, bad faith and/or other choice words have been used singularly or in combinations.  (And the emphasis here is on choice words!!)
2)  Every individual has in some way - frequently by Fidelity National Title like I was - had it acknowledged that they had a valid claim.  Some like myself actually had the claim opened for them by Fidelity and/or had the claim acknowledged as valid in a letter.
3)  Every individual was attempting to settle or was involved with the Claims Department for years.  I would guess the average time to be four years.
4)  Every individual thought at the beginning of the claims process that the Claims Counsel was there to help them and/or to represent their (the insured's) interest but slowly over time learned that the Claims Counsel appeared to represent the financial interest of Fidelity National Title above the interest in protecting their property rights.  (And here I should clarify - not one person I spoke to felt that they received a fair and equitable settlement - not even close.  Compounding this for most was the tens and hundreds of hours the claimants had to work to procure any kind of a settlement - and this time was universally not acknowledged financially.) (In my particular case by the time court, attorney and appraisal fees were paid - I received nothing for my loss and about 10 cents an hour for the time I spent pursuing the claim opened on my behalf by Fidelity.)
5)  Every individual had multiple Claims Counsels assigned to their claim. So far the fewest I have heard is three (and that person has still not settled their claim) but six seems to be a common number.
6)  Individuals have spent between $50,000 and $300,000 or more to settle their claims with Fidelity National Title.

The other common thread which is the purpose of this blog is "How do we keep this horrible situation from happening to others?"  I do not have the answer to that question.  One difficulty is that I have spoken to/or heard from clients of Fidelity National Title from more than a dozen states.  But I believe that using our First Amendment rights and communicating the facts of what occurred during our claims to inform and educate others is at least a step in the right direction.

Additionally, I have been trying to learn more of how title insurance claims work by talking to others and researching the process on the internet.

Some important questions that arose from my experience include:

Why is your escrow handled by Fidelity National Title Company and your property is insured by Fidelity National Title Insurance Company?

Is this why the files and documents of the escrow and title search done by Fidelity National Title Company for that process not available to Fidelity National Title Insurance Company during the claims process?  (At least they were not available in my case.)

Why are the people who handle the claims attorneys?  And do these attorneys represent you as the claimant or the financial interests of Fidelity National Financial and its subsidiaries?

Are the claims counsels attorneys and really representing the financial success of Fidelity?  And then in the case of a lawsuit their phone logs, notes, emails, etc. are not available due to attorney/client privilege??  (At least they were not provided in my case.)

If they are indeed all separate companies why do all of their email addresses (from escrow officers to claims counsels) end in @fnf.com?

Are the insured actually the clients/customers of the company??

Does the fact that Fidelity has an employee stock program create a conflict of interest in the paying of claims?  In other words if claims are not paid then the value of the stock increases, correct?

Oh, I could go on and on with question after question.  I obviously have a lot more research to do on how title insurance companies handle the claims of the insured.

More from Citizen for Freedom from Fidelity Fraudsters

Hello Ann,

 Thank you for getting back to me.  Yes, this really is an amazing unraveling of epic proportion that we find ourselves embroiled in.  For me personally, it has brought an entirely new meaning to how did I get here and why?  

The actions of the Fidelity executives appear to represent a shift of an epoch that is hell bent on the destruction of right relationship through the means of unabated greed and mis-aligned power.  

I believe that we must "stay calm and carry on" and not give up!     The actions that are taking place have such far reaching implications for future generations of the entire species.  The executive board members and leadership associated with Fidelity seemingly are in the business of "Human Capital Resources”.   That is a frightening reality if they succeed.  

Obviously, the great lengths the company has gone to intimidate and mutilate the fabric of trust and honor would indicate that Fidelity National Financial has fallen into the belief that they are "too big to fail."  However, that particular strategy has already been used on the people many times and it always ends the same, civilization after civilization.       

I replied to your blog posted on the July 4, 2013 as Citizen for Freedom from the Fidelity Fraudsters

If you would like to exchange ideas and methods to move forward please let me know.  I am currently in discussion with several firms on next steps for not only on my personal case, but also for a much larger venue.  

I sincerely appreciate your time and consideration.  

And another unhappy customer of Fidelity National Title

Sent: ‎July‎ ‎30‎, ‎2013 ‎5‎:‎08‎ ‎AM
To: annzollinger@gmail.com
Subject: Lawyers title and FNF

Dear Ann,

I have been in a situation with Lawyers Title/FNF regarding an easement issue since 2009.  I appreciate the information and explanation of your experience.  I have not been able to successful locate email addresses for William Foley and the other FNF board members and executives.   However, at this point that has not prevented me from getting their attention.  It just would be helpful to cc them on correspondence.  

If you would like to know more about the details of my issue, I would be more than happy to exchange my process to date.  If you could direct me to the outlets where email addresses are available that would be most helpful. 

Currently, I am in process of aligning myself with a large firm (I have had several types of representation throughout the process, most couldn't handle the "heat").  However, it appears that I will be moving in the direction of compensatory and punitive damages for legal malpractice, fraud and breach of fiduciary duty involving a conflict of interest in a real estate transaction in the near future. 

I realize that you have settled with FNF so my process may be of no interest to you.  However, thank you for blogging about your experience and especially for opening the portal to let the light in on the practices of greed that invade the very essence of balance and right relationship for all our relations.

Respectfully,

Hi -

Thank you so much for contacting me.  You are not the first person to contact me through my blog and yes, I was forced to settle with Fidelity due to threats and finances and could not continue on with the fight although I felt that there was definitely evidence sent in the documents that they finally provided at the eleventh hour that demonstrated their position on doing everything possible to value my claim at $0.  As you have read my blog - you have an idea of the ordeal I went through.

But with that said I will do everything I possibly can to assist you in process and if you and your attorneys feel that some of the documentation I have will be beneficial to you - I will be happy to provide it.  Please let me know what you need and I will be there.

I do not have email addresses for William Foley, et al.  I mailed hard copies of those letters not expecting a response - more as what happened to me was exactly the opposite of Mr. Foley’s stated creed.  I did surprisingly receive a response from David Saag who is the Chief Legal Counsel Western Region who I am copying on this email.  I am not sure if he covers Michigan or not.

 

If nothing else I will be there for moral support.  Good luck !!!  And make sure you have on your asbestos suit to take the heat - and trust me - it is going to get really nasty.  From my experience the Claims Counsels are not there to help and represent you - they are there to protect Fidelity’s bottom line.

 

Ann

 

Will I put the matter with Fidelity National Title to rest?? Hell no!!!

My response to the letter from David Saag, SVP/Chief Claims Counsel - Western Region, Fidelity National Title Group:

 

Dear Mr. Saag,

Well to be candid I am very disappointed.  My letter to Mr. Foley and Mr. Quirk were merely an expression of my disappointment with Fidelity National Title and I never expected to get an offer from someone to actually answer my questions.  I was for the first time in years of dealing with Fidelity thrilled to receive your response.

 I did involuntarily (depending on how you define this word) agree to release Fidelity from all financial obligations in agreement for a payment I have still not received but this was due to comments (I felt threats) made by Mr. McNeeley, your attorney, and information from my own attorney on the potential costs of proceeding with the lawsuit.  I have since then heard from individuals who have spent hundreds of thousands of dollars in lawsuits against your company and I was definitely after the huge loss I suffered from my claim not in a position to continue the fight.

As a licensed architect and real estate broker at the time of purchase, I found in the claims process I was clueless as to how title insurance worked – and even now having spent countless hours researching it – I still do not understand really how Fidelity National Title Insurance pays claims.  And I consider myself better educated in the field and above average intelligence.  I have heard from many individuals who were even less equipped than I was to file a claim.

 One of my greatest disappoints in not being able to continue with the lawsuit was not being able to find out what really happened.  What happened and why it happened that a claim opened on my behalf by one of your own title officers for the loss of a mile long easement to an estate property overlooking the prestigious Napa Valley could be valued at $0 is still a mystery to me – and I am surprised that you do not find this a little odd too.

 I do understand that from Fidelity National Title’s viewpoint my claim and lawsuit are fully resolved.  And I do understand that Fidelity National Title has no further duty nor obligation in this matter.  But please rest assured that even with the finality of your response I will not put this matter to rest.

I am dedicating myself to researching how title insurance works and how it protects (or does not protect) the consumer.  I have now heard from many individuals who have had similar experiences with Fidelity National Title and am learning a lot – and hopefully will be able to help these individuals and others in the future.  I did learn that it is extremely difficult to file a lawsuit against a company like yours as it is very difficult to resolve a claim.  You are correct you won – I lost.  And I guess you could easily – and politely – describe me as disgruntled.  Personally I am certain that a few choicer words have been used behind closed doors!!

 Sincerely,

 Ann Zollinger

Disappointing answer from David Saag, SVP/Chief Claims Counsel Fidelity National Title

 

Hopefully Fidelity National Title Will Answer My Questions !!!!

First Questions to David Saag, SVP/Chief Claims Counsel, Fidelity National Title

Dear Mr. Saag,

 

First of all let me thank you again in advance for your kind offer to answer all of my questions.  For the sake of clarity I have framed them in red type.

 

Needless to say it is impossible to readily explain now five years of agony, frustration and unhappiness dealing with your claims department on a claim that your own company filed on my behalf.  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 have now heard from individuals who have spent $50,000, $250,000 and $300,000 in lawsuits against Fidelity National Title.  I settled the suit to pay the legal fees and compensate my attorney for his time as after the devastating loss of the marketability of my property – I was not financially able to continue with the lawsuit.

 

I also discovered that although well educated in the area of real estate (was a licensed architect and real estate broker at the time of purchase), I was remarkably ignorant and naïve in how title and escrow service relate to title insurance and also how title insurance works (or in my case does not in my opinion.)

 

Having only two days before the Settlement Conference to pour through thousands of pages of documents provided weeks late by Fidelity (most of which was just multiple copies of my own emails) I was truly puzzled by the lack of information provided.

 

So my first question, as both an architect and a real estate broker I keep extensive notes and phone logs and email records of all conversations and interactions with my clients.  There were no phone calls, only one or two log sheets and a handful of emails between your employees provided in the disclosure documents.  I was taught, also, that this is a normal standard of care.  Don’t your employees (claims counsels) keep phone logs and transaction notes?  And if not, how do they possibly keep track of what is happening with the various claims??

 

There were none of the research nor meeting notes from the original Title Officer Lee Grice nor Craig Donner who opened the claim on my behalf.  Don’t your claims counsel have access to these critical files?

 

I finally put some of the pieces of the puzzle together and formed this list of events for the Settlement 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).  This Grant Deed was provided

·         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.  I understand that the reason they were not valid was because they were not the sellers’ to convey.  How did this happen?

·         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.  As the Prelim is an offer to insure, how does Fidelity National Title Insurance Company have no record of the Prelim nor the research done to produce it?

From www.fntic.com (Fidelity National Title Insurance Company) website under “Steps in the Title Process”:

Initial Request for Title Insurance
An order for title insurance is opened with a title officer who produces the initial response promptly within 24 to 48 hours. A preliminary report can be issued with the minimum of information; without even identifying the buyer or the terms of the sale. It shows the record title as it presently exists and is only an offer to provide insurance. To order a preliminary report contact your local Fidelity National Title representative or office.

On-Site Searching and Examining
Your title officer performs three searches: Property, Name, and Tax searches. From that information, a preliminary report is created. Our on-site customer service center expedites the process of obtaining hard copies of recorded documents. Imaging helps to expedite searches with the ability to obtain documents online.

Technical Review
The skill and expertise of our title officer is the key to providing you with a useful, accurate title report. Once the report is issued the review begins by making a technical analysis of the documents of record. An interpretive view of all recorded matters is made to evaluate their impact on the title to the property. Among the questions the examiner asks are: Would any of the recorded matters prevent the buyer from using the property for its intended purpose? Can antiquated leases be eliminated from the policy per a review of the current leases?

This states “expedites the process of obtaining hard copies of recorded documents” and “an interpretive view of all recorded maters is made to evaluate their impact on the title,” etc.  So what happened to the file of these documents that was created when the property was purchased and again when it was refinanced?

 

·         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, a neighbor who owned the servient property, which started the entire claim.  Fax to Debbie Shelton

Did any of the Claims Counsels contact Ms. Ho to see if she would sell her easement?

·         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 on my behalf.  “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.

So what happened to Craig Donner and did he attempt to get the easements back??  It seemed logical to keep the claim in Walnut Creek so why was it transferred to Chicago?

·         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…..”

After this Adam Pinchuck seemed to disappear – what happened to him and the claim?

·         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.)

I provided the list of local appraisers, what happened to that list?

Instead I was told that Jim Gibson of Boise Idaho would be doing the appraisal as he was on Fidelity National Title’s list of “approved appraisers.”  How does an appraiser get on that list?

·         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.”

What office do they have in the Napa Valley “providing local market knowledge?”  What did Mr. Girard to qualify Mr. Gibson to do this appraisal?  Where is Mr. Girard’s phone record of this conversation?  How did he get involved in this in the first place?

·         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.”

How is this project in the Napa Valley similar to one in Snowmass/Aspen?

So as he first did a “cost to cure” it can be assumed that this value was less than the DIV, correct?

·         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.

How can there be a “cost to cure” value to a different road in a different county??  And that no one else thought this was odd but me?

·         Zollinger refutes the appraisal.

I presented a tome of information refuting everything from Mr. Gibson’s market analysis was not of the area my property was in (American Canyon rather than Oakville) to most of his comparable properties were not even on his Market Area Map.  Has anyone in the Claim’s Department even read this?  Or compare the information provided to Mr. Gibson’s appraisal and observe that he really was not familiar with the market area?

·         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.)  See June 26, 2009 comment.

·         June 25, 2009 Jim Gibson responds with more false and misleading information

Did the Claims Counsel read my response to this letter?

·         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.”

This was perhaps my most interesting discovery.  Apparently for the first time due to my query on June 15, 2009 another study was done and it was discovered that the easements were valid.

So the easements were valid the entire time and I was never told?  And if so, then why was not attempt made by Fidelity to defend my right to the easements? And is this saying that although Fidelity agreed that they were not valid and opened a claim on my behalf, now that they discovered a year later that they were valid but I had loss the marketability of the property because of the false statement that there was no liability?

·         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.”  Who is Steven Johnson?  And how did they respond diligently 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. Nor did my attorney.  We thought that he was saying that the easements were excepted but further in the policy is states unless they are recorded in the public records and if you recall I was given the public records by the original title officer.

Are you confused yet?

·         Zollinger files claim with DOI

·         August 18, 2009 letter from Jeff Hansen (replacing Robert Kelly).  Why was 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.” 

First, did Jeff Hansen not understand also that the easements are valid?  Isn’t he again treating it still as a valid loss?

Gibson stated clearly in his first communication that “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.”

So as he chose to use the “cost to cure” (granted perfecting a prescriptive easement to a different road in a different county that the original lost easements) isn’t is understood that this was the lesser value?  And if so, why would Mr. Hansen predetermine that it is likely to be lower?  And who is Todd Moody and why would he suggest that I would complain about lower appraisal when the new appraisal had not even been requested?  How did he know it would be lower?

·         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.” 

So why was this not done?

·         November 19, 2009 Jeff Hansen sent an almost identical appraisal without any analysis of the submitted data only now DIV is $0.

Do you not find that the loss of a mile long easement through residential property leaving only an entrance through a commercial property to an 80 acre single family residential property with sweeping views of the infamous Napa is worth nothing?

·         November 21, 2009 Zollinger complains.

Are you surprised?

·         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”.

As the property was unmarketable at the value of the loan I did let it go back to the bank.  The difference between the comparable properties with the easement at the time is was listed for sale with the lost easement was approximately $675,000.

Was the reason I was shuffled from Claims Office to Claims Office and Claims Officer to Claims Officer with months of no communication (this can be verified by the Sonoma County Manager John Hilvka and the reason I went to the Department of Insurance) so that Fidelity would no longer be liable as I would no longer be the owner of the property?

By the way, why was there no record of the communication with the Department of Insurance in the documents sent?

·         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.”

I did prepare a rather extensive (and more accurate) market report than what Mr. Gibson provided.  Has anyone read it?

I cannot thank you enough for taking the time to answer all of these questions.  I believe that getting these answers will not only help me understand what happened with this claim and why but will also help me and my readers understand how title insurance works and how we should ”Rely On Fidelity National Title To Protect Your Investment”. This is again from www.fntic.com.  But at the bottom of the page copyrighted in 2010 is the statement: “The statements made on this web page and any page that follows within the Fidelity National Title website are not intended, and shall not be construed to expressly or impliedly issue or deliver any form of written guaranty, affirmation, indemnification, or certification of any fact, insurance coverage or conclusion of law.”  So my final question for today, does this mean that since 2010 we should not rely on Fidelity National Title to protect are investments – but we should have prior to that date?  This is a little confusing.  I pulled quotes off the website and sent them to various claims officers and I do not remember this disclaimer.  Is this new?

Thank you again for your assistance. 

Ann Zollinger