January 11, 2013
Mr. William P. Foley II
Fidelity National Title Insurance Company
601 Riverside Avenue
Jacksonville FL
32204
Dear Mr. Foley,
I am writing to you as the President of Fidelity National
Title Insurance Company. (Mr. William P. Foley, serves as the President and Chairman of Fidelity National Title Insurance Company.) I was a real estate agent/broker in
Sonoma, a Fidelity Gold Client and used Fidelity for my personal real estate
transactions. I owned an 80 acre parcel with
sweeping views of the Napa Valley off of Mt. Veeder Road that was above the
former Chateau Potelle property purchased by Jess Jackson and Barbara Banke. An easement from Mt. Veeder Road that was
insured by Fidelity was found to be invalid (but it was determined but not told
to me a year into the claim that it might be valid). A claim was opened on my behalf by a Fidelity
Title Officer. An appraiser from Boise
Idaho was hired who determined the value of this mile long easement in Napa
County had a value of $0. He did things
like compare in value my property above Oakville to America Canyon – I am
mentioning this as it would be the equivalent of comparing in value your
property in Healdsburg to Ukiah. His
first “cost to cure” was to substitute a prescriptive easement I already had to
Cavedale Road in Sonoma County for the lost easement to Mount Veeder Road in
Napa County. The claims counsels in
Omaha found neither of these facts odd.
After four years, three claims offices and six claims
officers I finally filed a lawsuit. I
discovered though that an individual is in no position to fight a corporation
such as yours. I settled the suit to pay
the legal fees and compensate my attorney for his time. Here is my blog entry on the result of the
settlement:
“I have been thinking a lot about this since I
wrote the email to my attorney instructing him to divide the Settlement money
between himself and the two trial attorneys from Fidelity National Title.
Over the course of my former career as a real
estate agent/broker I referred hundreds of clients to Fidelity National Title
as the title company that I supported and felt did the best job due to the
excellent service I and my clients had received from the escrow officers in the
Sonoma California office.
As I have said - thank goodness that I am the
only one who ever had to actually file (or had filed on my behalf) a claim with
Fidelity National Title. Having experienced working with (LOL) the claims
department of Fidelity National Title, I feel guilty having referred so many of
my clients to Fidelity knowing that if they have a problem in the future with
their real estate investment title, they will need to most likely go through an
experience similar to what happened to me.
If I accepted the pittance of a settlement
that I felt I was forced to agree to - which I did solely for the purpose of
paying the legal expenses (amounting to almost $8000 just to barely get the
lawsuit started) and to pay my attorney for his time. I was convinced by
the intimidating speech of Fidelity National Title's Senior Trial Attorney
(Richard M. McNeely, Jr.) that not only was it going to cost tens of thousands
of dollars but even if I "won" I could still legally end up owing
Fidelity money.
Additionally, the second Fidelity National Title
Attorney (Edward Kunnes) in what I felt was not a pleasant way pointed out the
following:
1.
My attempts at adding a little levity to the conference was not
appropriate for a settlement conference.
2.
When he stated that Fidelity National Title Insurance Company did
not have an office in Napa (and therefore this statement in our complaint was
false) - which I wrote about as I researched the company I realized that
he was correct as there are so many different divisions but even as a real
estate broker - I thought that they were all the same and interconnected and
not part of what I now understand to be a form of organization and legal
protection.
3.
And he stated that indeed per the law I was no longer covered by
the insurance because I no longer owned the property. Of course, I now
realize that this must have been part of the intention of moving me all over
the country from office to office and claims counsel to claims counsel and the
lack of response until I contacted the California Department of Insurance, etc.
At any rate - I feel that it is important that I
continue to express the reasons I would never ever use Fidelity National Title
Company and Fidelity National Title Insurance Company documented with copies of
documents from Fidelity National Title. If I took the money then I would
be sending the message that I thought that I had been treated justly and fairly
- which I do not - not even close.”
Having only two days before the Settlement Conference to
pour through thousands of pages of documents provided weeks late by Fidelity I
finally put some of the pieces of the puzzle together and formed this list of
events for the Conference:
Chronological Order of Events
·
1998
Hamilton Vose subdivided off this property and sold it to Arnie Kresch. At that time the Grant Deed from Napa Land
Title Co. lists only Parcel One (the property) and Parcel Two (our Parcel Six –
the easement thru Chateau Potelle). Grant Deed
·
2002 -2004 AND
HERE IS THE MISTAKE. When we
purchased the property from the Kresch kids after Arnie Kresch’s death Fidelity
added in Parcels Two thru Five to both the prelim and the Grant Deed on the
purchase and subsequent re-finance. THE
REASON THEY ARE NOT VALID AS THEY WERE NOT THE SELLER’S TO CONVEY. Grant
Deed
·
2002 I met with the title officer in Napa prior
to purchasing the property and received the map and recorded documents on all
of the easements leading me to believe that there was this second deeded
easement from Mt. Veeder.
·
June 2008
When I went to sell the property I (obviously) thought there was a valid
easement which is the reason I contacted Doreen Ho which started the entire
claim. Fax to Debbie Shelton
·
October 2008
Craig Donner of Fidelity National Title determines the easements are not
valid as they were not the sellers to convey and opens the claim. “Our insured is now putting the property on
the market and wants to advertise that she has an additional access being the
insured easement. I know we need to
forward to claims department, but escrow wants to know what she should advise
her customer. I think we should be up
front and let her know the facts and that it will be handled by the claims
department.” Email re: telling Zollinger and Confidential
Claim Report to General Counsel
·
October 29, 2008 Claim assigned to Dennis Lucey,
Walnut Creek. Email to Craig Donner
“Since she ‘s trying to sell the property, and needs the claim resolved
first, (and we apparently have a long professional history with her) I’m going
to be sure to keep this on, or near, the front burner.” Conversation was he was going to attempt to
get the easements back.
·
November 13, 2008 Claim re-assigned to Adam
Pinchuck, Chicago
·
November 18, 2008 Initial Fact and Claims
Analysis “However, since these easements were included as insured parcels in
Schedule A, we have provided coverage to our insured.”
·
December 30, 2009 Mr. Pinchuck “determined”
“coverage is appropriate…..”
·
January 26, 2009 Zollinger reaches Dennis Lucey
who tells her she has been re-assigned to Robert Kelly in Omaha. (Kelly told Zollinger in a phone conversation
he was swamped from the closing of the Chicago Office closing and asked for the
names of local appraisers.)
·
February 23, 2009 Email from Jim Gibson to Owen Girard, “Thank you for taking the
time with me this morning. As I
indicated, I have been, and continue to perform Diminution In Value (DIV)
appraisals for Fidelity National-Chicago Title, covering numerous states,
including:……. I work with a small team
of appraisers who have experience in DIV projects. We have offices scattered across the county,
providing local market knowledge.”
·
March 5, 2009 Email from Jim Gibson to Robert Kelly, “We will take care of this
project. It’s very similar to a DIV
project I did in Aspen/Snowmass CO last fall.
A key issue for this type of project is not to over look the “Cost to
Cure” for the noted defect in title. If
the estimated Cost to Cure is less than the difference of the “Before and After
Value”, the Cost to Cure is considered to be the appropriate measure of
damages. In terms of this project, we
have valued numerous commercial vineyards within the Napa/Sonoma market over
the past few years.” (So as he first did
a “cost to cure” it can be assumed that this value was less than the DIV????)
·
May 1, 2009 Jim Gibson completes his appraisal
determining that perfecting the prescriptive easement to Cavedale Road in
Sonoma County can be substituted for perfecting the easement to Mount Veeder
Road in Napa County and valued the “Cost to Cure” at $13,500.
·
Zollinger refutes the appraisal.
·
June 15, 2009 Email Robert Kelly to John Hilvka
and Gary Colemere, “I’ll call Ann and advise her that I’m waiting for Mr.
Gibson to provide a written response to his review of the information Ann
submitted in an attempt to increase the loss amount indicated in his original
DIV report. I really need to discuss
options 1 & 2 with you because Ann is asking me if we have acted on either
of these options. (Note #1 is regaining Parcels 2 – 5, #2 obtaining another
easement (not thru a winery) to Mt. Veeder Road.)
·
June 25, 2009 Jim Gibson responds with more
false and misleading information
·
June 26, 2009 Policy Payment Approval Report
“After investigating this issue extensively with Gary Colemere out of the
Napa County office it appears that Parcels 2 – 5 may run with Parcel 1 after
all.”
“Legal Arguments: Once the Company
indicates to the Insured that the Property does not include Parcels 2 – 5 and
as a result, this is a covered loss, and the insured relies on our statement
and does not market the property as having a secondary easement access through
parcels 2 – 5, can the company now say 6 months later that there is no loss,
the property is as insured.” (so it was
valid the whole time and I was never told??????
And no attempt was made to defend my right to the easement with the
neighbors?????)
·
June 30, 2009
Email from Steven Johnson to Robert
Kelly, “We should provide our best explanation of the basis for the
tendered claim payment, pointing out that it looks like there is a valid
easement, that there are exceptions to the easement, and that we have
diligently responded to requests in handling the claim.”
·
July 10, 2009 Robert Kelly writes, “Based on
your request of 5/27209, our Company in good faith reviewed Parcel…… Based on this information the interest in the
land is as described in Schedule A of the Policy.” Then he excepts the coverage under Schedule B
but states that in good faith the Company treated this matter as a covered
loss. Then, “so if the Historical
Easements provide another access to the Property it would be the third access
easement to the Property.” (I did not
get from his letter that there was a valid easement.)
·
Zollinger files claim with DOI
·
August 18, 2009 letter from Jeff Hansen
(replacing Robert Kelly)
·
September 23, 2009 Brief by Jeff Hansen, “On
9/23/09 sent the following email to appraiser Jim Gibson of PGP after
discovering bob Kelly had instructed Jim to appraise base on “cost to cure”,
i.e. of obtaining alternative easement, as opposed to straight DIV. “Talked to Todd Moody about this on 09/22/09
and also talked to Todd about fact that it’s come to light that Zollinger
recently lost the property in foreclosure (Bank of America now owns). Todd and I decided that due to DOI complaint,
we should go ahead and get DIV appraisal, which will likely be lower than what
Bob already paid Zollinger based on “cost to cure” appraisal. Todd suggested if Zollinger complains about
lower appraisal, we can then raise the issue of the foreclosure.” (Interesting – since Gibson implied that the “cost
to cure” was less by Hansen has now decided it would be less?????)(And Hansen,
also, obviously did not get that the easements were valid as he, too, is still
treating it as a loss?????)
·
November 9, 2009 Hansen writes, “In your letter
of September 27, 2009, you made reference to the extensive sales data you had
submitted on six other properties. Rest
assured, all of that data you submitted was sent to the appraiser and I told
the appraiser to analyze it as part of the new appraisal and to make sure and
address it in the appraisal report.”
(Not done.)
·
November 19, 2009 Jeff Hansen sent an almost
identical appraisal without any analysis of the submitted data only now DIV is
$0.
·
November 21, 2009 Zollinger complains.
·
December 16, 2009 Jeff Hansen writes, “The PGP
Valuation Inc. report concludes the diminution in value is zero.” “Additionally, your coverage under the above
–referenced policy of title insurance terminated because, due to foreclosure, you
ceased to be the record owner of the property”.
·
July 26, 2010 Jennifer Reeves writes, “If you
would like to provide us with an appraisal from a certified appraiser we would
be more than willing to review it.”
Needless to say it is impossible to readily explain four
years of agony, frustration and unhappiness dealing with your claims department
on a claim that your own company filed on my behalf. The bottom line is that if I were you – I would
be ashamed that the company that I head calls itself an insurance company.
If you would like more information please feel free to read
my blog:
Sincerely,
Ann Zollinger
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