Senate Bill sb0636c1

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    Florida Senate - 2007                            CS for SB 636

    By the Committee on Banking and Insurance; and Senator Lawson





    597-2471-07

  1                      A bill to be entitled

  2         An act relating to title insurance; amending s.

  3         626.84201, F.S.; providing additional

  4         requirements for nonresident title insurance

  5         agent licensure; amending s. 626.9541, F.S.;

  6         revising unlawful rebate specifications;

  7         amending s. 627.7711, F.S.; revising

  8         definitions; amending s. 627.780, F.S.;

  9         providing an exception to a prohibition against

10         dealing in certain premiums; amending ss.

11         627.782 and 627.783, F.S.; revising rate and

12         rate-deviation requirements; amending s.

13         627.7845, F.S.; revising determination of

14         insurability and records retention

15         requirements; amending s. 701.04, F.S.;

16         clarifying the content of estoppel letters sent

17         to mortgagors; amending s. 701.041, F.S.;

18         revising definitions relating to mortgage

19         certificates of release; revising limitations

20         on the application of the statute; adding title

21         insurance agents for the purpose of assigning

22         liability for damages; deleting the authority

23         of the Financial Services Commission to adopt

24         rules establishing charges; providing an

25         effective date.

26  

27  Be It Enacted by the Legislature of the State of Florida:

28  

29         Section 1.  Section 626.84201, Florida Statutes, is

30  amended to read:

31  

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 1         626.84201  Nonresident title insurance

 2  agents.--Notwithstanding s. 626.8414(2), the department, upon

 3  application and payment of the fees specified in s. 624.501,

 4  may issue a license as a nonresident title insurance agent to

 5  an individual not a resident of this state in the same manner

 6  applicable to the licensure of nonresident general lines

 7  agents under the provisions of s. 626.741, provided the

 8  individual passes the examination for licensure required under

 9  s. 626.221. Nonresident title insurance agents licensed

10  pursuant to this section must complete the continuing

11  education requirements of s. 626.2815 in the same manner as

12  resident title insurance agents. Sections 626.742 and 626.743

13  apply to nonresident title insurance agents.

14         Section 2.  Paragraph (h) of subsection (1) of section

15  626.9541, Florida Statutes, is amended to read:

16         626.9541  Unfair methods of competition and unfair or

17  deceptive acts or practices defined.--

18         (1)  UNFAIR METHODS OF COMPETITION AND UNFAIR OR

19  DECEPTIVE ACTS.--The following are defined as unfair methods

20  of competition and unfair or deceptive acts or practices:

21         (h)  Unlawful rebates.--

22         1.  Except as otherwise expressly provided by law, or

23  in an applicable filing with the office, knowingly:

24         a.  Permitting, or offering to make, or making, any

25  contract or agreement as to such contract other than as

26  plainly expressed in the insurance contract issued thereon;

27         b.  Paying, allowing, or giving, or offering to pay,

28  allow, or give, directly or indirectly, as inducement to such

29  insurance contract, any unlawful rebate of premiums payable on

30  the contract, any special favor or advantage in the dividends

31  

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 1  or other benefits thereon, or any valuable consideration or

 2  inducement whatever not specified in the contract;

 3         c.  Giving, selling, or purchasing, or offering to

 4  give, sell, or purchase, as inducement to such insurance

 5  contract or in connection therewith, any stocks, bonds, or

 6  other securities of any insurance company or other

 7  corporation, association, or partnership, or any dividends or

 8  profits accrued thereon, or anything of value whatsoever not

 9  specified in the insurance contract.

10         2.  Nothing in paragraph (g) or subparagraph 1. of this

11  paragraph shall be construed as including within the

12  definition of discrimination or unlawful rebates:

13         a.  In the case of any contract of life insurance or

14  life annuity, paying bonuses to all policyholders or otherwise

15  abating their premiums in whole or in part out of surplus

16  accumulated from nonparticipating insurance; provided that any

17  such bonuses or abatement of premiums is fair and equitable to

18  all policyholders and for the best interests of the company

19  and its policyholders.

20         b.  In the case of life insurance policies issued on

21  the industrial debit plan, making allowance to policyholders

22  who have continuously for a specified period made premium

23  payments directly to an office of the insurer in an amount

24  which fairly represents the saving in collection expenses.

25         c.  Readjustment of the rate of premium for a group

26  insurance policy based on the loss or expense thereunder, at

27  the end of the first or any subsequent policy year of

28  insurance thereunder, which may be made retroactive only for

29  such policy year.

30         d.  Issuance of life insurance policies or annuity

31  contracts at rates less than the usual rates of premiums for

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 1  such policies or contracts, as group insurance or employee

 2  insurance as defined in this code.

 3         e.  Issuing life or disability insurance policies on a

 4  salary savings, bank draft, preauthorized check, payroll

 5  deduction, or other similar plan at a reduced rate reasonably

 6  related to the savings made by the use of such plan.

 7         3.a.  No title insurer, or any member, employee,

 8  attorney, agent, or agency thereof, shall pay, allow, or give,

 9  or offer to pay, allow, or give, directly or indirectly, as

10  inducement to title insurance, or after such insurance has

11  been effected, any rebate or abatement of the agent's,

12  agency's, or title insurer's share of the premium or any other

13  charge or fee for related title services below the cost for

14  providing such services, or provide any special favor or

15  advantage, or any monetary consideration or inducement

16  whatever. Nothing herein contained shall preclude an abatement

17  in an attorney's fee charged for legal services.

18         b.  Nothing in this subparagraph shall be construed as

19  prohibiting the payment of fees to attorneys at law duly

20  licensed to practice law in the courts of this state, for

21  professional services, or as prohibiting the payment of earned

22  portions of the premium to duly appointed agents or agencies

23  who actually perform services for the title insurer. Nothing

24  in this subparagraph shall prohibit a rebate or abatement of

25  an attorney's fee charged for professional services, the

26  portion of the premium that is not required to be retained by

27  the insurer pursuant to s. 627.782(1), or any other agent

28  charge or fee, to the person responsible for paying the

29  premium, charge, or fee.

30         c.  No insured named in a policy, or any other person

31  directly or indirectly connected with the transaction

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 1  involving the issuance of such policy, including, but not

 2  limited to, any mortgage broker, real estate broker, builder,

 3  or attorney, any employee, agent, agency, or representative

 4  thereof, or any other person whatsoever, shall knowingly

 5  receive or accept, directly or indirectly, any rebate or

 6  abatement of any portion of the title insurance premium or of

 7  any other charge or fee said charge, or any monetary

 8  consideration or inducement whatsoever, except other than as

 9  set forth in sub-subparagraph b. However, no portion of the

10  attorney's fee, the premium that is not required to be

11  retained by the insurer pursuant to s. 627.782(1), any agent

12  charge or fee, or any other monetary consideration or

13  inducement, may be paid directly or indirectly for the

14  referral of title insurance business.

15         Section 3.  Subsection (1) of section 627.7711, Florida

16  Statutes, is amended, and subsection (4) is added to that

17  section, to read:

18         627.7711  Definitions.--As used in this part, the term:

19         (1)(a)  "Closing Related title services" means services

20  performed by a licensed title insurer, or title insurance

21  agent or agency, or attorney agent in the agent's or agency's

22  capacity as such, including, but not limited to, preparing or

23  obtaining a title search, examining title, examining searches

24  of the records of a Uniform Commercial Code filing office and

25  such other information as may be necessary, preparing

26  documents necessary to close the transaction, conducting the

27  closing, or handling the disbursing of funds related to the

28  closing in a real estate closing transaction in which a title

29  insurance commitment or policy is to be issued. The premium,

30  together with the charge for related title services,

31  constitutes the regular title insurance premium.

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 1         (b)  "Primary title services" means determining

 2  insurability in accordance with sound underwriting practices

 3  based upon evaluation of a reasonable title search and

 4  examination of the title or a search of the records of a

 5  Uniform Commercial Code filing office and such other

 6  information as may be necessary, determination and clearance

 7  of underwriting objections and requirements to eliminate risk,

 8  preparation and issuance of a title insurance commitment

 9  setting forth the requirements to insure, and preparation and

10  issuance of the policy. Such services do not include closing

11  services or title searches, for which a separate charge is or

12  separate charges are made.

13         (4)  "Title search" means the compiling of title

14  information from official or public records.

15         Section 4.  Subsection (1) of section 627.780, Florida

16  Statutes, is amended to read:

17         627.780  Illegal dealings in risk premium.--

18         (1)  A person may not knowingly quote, charge, accept,

19  collect, or receive a premium for title insurance other than

20  the premium adopted by the commission, except as provided in

21  s. 626.9541(1)(h)3.b.

22         Section 5.  Subsection (1) of section 627.782, Florida

23  Statutes, is amended to read:

24         627.782  Adoption of rates.--

25         (1)  Subject to the rating provisions of this code, the

26  commission must adopt a rule specifying the premium to be

27  charged in this state by title insurers for the respective

28  types of title insurance contracts and, for policies issued

29  through agents or agencies, the percentage of such premium

30  required to be retained by the title insurer which shall not

31  be less than 30 percent. However, in a transaction subject to

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 1  the Real Estate Settlement Procedures Act of 1974, 12 U.S.C.

 2  ss. 2601 et seq., as amended, no portion of the premium

 3  attributable to providing a primary title service shall be

 4  paid to or retained by any person who does not actually

 5  perform or is not liable for the performance of such service.

 6  The commission may, by rule, establish limitations on related

 7  title services charges made in addition to the premium based

 8  upon the expenses associated with the services rendered and

 9  other relevant factors.

10         Section 6.  Subsection (1) of section 627.783, Florida

11  Statutes, is amended to read:

12         627.783  Rate deviation.--

13         (1)  A title insurer may petition the office for an

14  order authorizing a specific deviation from the adopted

15  premium, and a title insurer or title insurance agent may

16  petition the office for an order authorizing and permitting a

17  specific deviation above the reasonable charge for related

18  title services rendered specified in s. 627.782(1). The

19  petition shall be in writing and sworn to and shall set forth

20  allegations of fact upon which the petitioner will rely,

21  including the petitioner's reasons for requesting the

22  deviation. Any authorized title insurer, agent, or agency may

23  join in the petition for like authority to deviate or may file

24  a separate petition praying for like authority or opposing the

25  deviation. The office shall rule on all such petitions

26  simultaneously.

27         Section 7.  Subsections (1), (2), and (3) of section

28  627.7845, Florida Statutes, are amended to read:

29         627.7845  Determination of insurability required;

30  preservation of evidence of title search and examination.--

31  

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 1         (1)  A title insurer may not issue a title insurance

 2  commitment, endorsement, or title insurance policy until the

 3  title insurer has caused to be made conducted a determination

 4  of insurability based upon the evaluation of a reasonable

 5  title search and examination of the title or a search of the

 6  records of a Uniform Commercial Code filing office, as

 7  applicable, has examined such other information as may be

 8  necessary, and has caused to be made a determination of

 9  insurability of title or the existence, attachments,

10  perfection, and priority of a Uniform Commercial Code security

11  interest, including endorsement coverages, in accordance with

12  sound underwriting practices.

13         (2)  The title insurer shall cause the evidence of the

14  determination of insurability and the reasonable title search

15  and examination of the title or search of the records of a

16  Uniform Commercial Code filing office to be preserved and

17  retained in its files or in the files of its title insurance

18  agent or agency for a period of not less than 7 years after

19  the title insurance commitment, title insurance policy, or

20  guarantee of title was issued. The title insurer or agent or

21  agency must produce the evidence required to be maintained by

22  this subsection at its offices upon the demand of the office.

23  Instead of retaining the original evidence, the title insurer

24  or the title insurance agent or agency may, in the regular

25  course of business, establish a system under which all or part

26  of the evidence is recorded, copied, or reproduced by any

27  photographic, photostatic, microfilm, microcard, miniature

28  photographic, or other process which accurately reproduces or

29  forms a durable medium for reproducing the original.

30         (3)  The title insurer or its agent or agency must

31  maintain a record of the actual risk premium charged and

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 1  related title service charges made for issuance of the policy

 2  and any endorsements in its files for a period of not less

 3  than 7 years. The title insurer, agent, or agency must produce

 4  the record at its office upon demand of the office.

 5         Section 8.  Subsection (1) of section 701.04, Florida

 6  Statutes, is amended to read:

 7         701.04  Cancellation of mortgages, liens, and

 8  judgments.--

 9         (1)  Within 14 days after receipt of the written

10  request of a mortgagor, the holder of a mortgage shall deliver

11  to the mortgagor at a place designated in the written request

12  an estoppel letter setting forth the unpaid balance of the

13  loan secured by the mortgage, including the principal,

14  interest, any other charges properly due under and secured by

15  the mortgage, and interest on a per-day basis for the unpaid

16  balance principal balance, interest due, and the per diem

17  rate. Whenever the amount of money due on any mortgage, lien,

18  or judgment is to shall be fully paid to the person or party

19  entitled to the payment thereof, the mortgagee, creditor, or

20  assignee, or the attorney of record in the case of a judgment,

21  to whom such payment has shall have been made, shall execute

22  in writing an instrument acknowledging satisfaction of said

23  mortgage, lien, or judgment and have the same acknowledged, or

24  proven, and duly entered of record in the book provided by law

25  for such purposes in the proper county. Within 60 days after

26  of the date of receipt of the full payment of the mortgage,

27  lien, or judgment, the person required to acknowledge

28  satisfaction of the mortgage, lien, or judgment shall send or

29  cause to be sent the recorded satisfaction to the person who

30  has made the full payment. In the case of a civil action

31  

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 1  arising out of the provisions of this section, the prevailing

 2  party is shall be entitled to attorney's fees and costs.

 3         Section 9.  Section 701.041, Florida Statutes, is

 4  amended to read:

 5         701.041  Title insurer; mortgage release certificate.--

 6         (1)  DEFINITIONS.--For purposes of this section, the

 7  term:

 8         (a)  "Estoppel letter" means a statement of the amount

 9  of:

10         1.  The unpaid balance of a loan secured by a mortgage,

11  including principal, interest, and any other charges properly

12  due under or secured by the mortgage; and

13         2.  The interest on a per-day basis for the unpaid

14  balance. "Mortgage" means a mortgage or mortgage lien on an

15  interest in real property in this state, including any

16  modifications thereof, given to secure a loan in the principal

17  amount of $500,000 or less, other than a mortgage securing an

18  open-end or revolving credit agreement.

19         (b)  "Mortgagee" means:

20         1.  The grantee of a mortgage; or

21         2.  If a mortgage has been assigned of record, the last

22  person to whom the mortgage has been assigned of record.

23         (c)  "Mortgage servicer" means the last person to whom

24  a mortgagor or the mortgagor's successor in interest has been

25  instructed by a mortgagee to send payments on a loan secured

26  by a mortgage. The A person transmitting an estoppel letter a

27  payoff statement is the mortgage servicer for the mortgage

28  described in the estoppel letter payment statement.

29         (d)  "Mortgagor" means the grantor of a mortgage.

30         (e)  "Payoff statement" means a statement of the amount

31  of:

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 1         1.  The unpaid balance of a loan secured by a mortgage,

 2  including principal, interest, and any other charges properly

 3  due under or secured by the mortgage.

 4         2.  Interest on a per-day basis for the unpaid balance.

 5         (e)(f)  "Record" means to record with the clerk of the

 6  circuit court or the comptroller in the county or counties in

 7  which the real property securing the mortgage is located.

 8         (f)(g)  "Title insurer" means a corporation or other

 9  business entity authorized and licensed under chapter 624 to

10  insure to transact the business of insuring titles to

11  interests in real property in this state under chapter 624.

12         (2)  APPLICATION.--This section applies to a mortgage

13  secured by a loan in the principal amount of $500,000 or less,

14  as determined from the recorded mortgage, and which contains

15  no disclosure of record that the mortgage secures an open-end

16  or revolving line of credit agreement.

17         (3)(2)  CERTIFICATE OF RELEASE.--An officer or duly

18  appointed agent of a title insurer may, on behalf of a

19  mortgagor or a person who acquired from the mortgagor title to

20  all or a part of the property described in a mortgage, execute

21  a certificate of release that complies with the requirements

22  of this section and record the certificate of release in the

23  real property records of each county in which the mortgage is

24  recorded if a satisfaction or release of the mortgage has not

25  been executed and recorded after the date payment in full of

26  the loan secured by the mortgage was made in accordance with

27  an estoppel letter a payoff statement furnished by the

28  mortgagee or the mortgage servicer.

29         (4)(3)  CONTENTS.--A certificate of release executed

30  under this section must contain:

31  

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 1         (a)  The name of the mortgagor, the name of the

 2  original mortgagee, and, if applicable, the mortgage servicer;

 3  the date of the mortgage; the date of recording; and the

 4  volume and page or document number in the real property

 5  records in which the mortgage is recorded, together with

 6  similar information for the last recorded assignment of the

 7  mortgage.

 8         (b)  A statement that the mortgage being released has

 9  been determined eligible for release under this section,

10  including any modifications thereof, was in the principal

11  amount of $500,000 or less.

12         (c)  The name of the title insurer filing the

13  certificate of release, a statement that the person executing

14  the certificate of release is an officer or a duly appointed

15  agent of the title insurer, a statement that the title insurer

16  is authorized and licensed to insure transact the business of

17  insuring titles to interests in real property in this state

18  under chapter 624 or chapter 626, and, if executed by a duly

19  appointed agent, shall further provide the recording

20  information of the appointment of such agent as required by

21  subsection (5) (4).

22         (d)  A statement that the certificate of release is

23  made on behalf of the mortgagor or a person who acquired title

24  from the mortgagor to all or a part of the property described

25  in the mortgage.

26         (e)  A statement that the mortgagee or mortgage

27  servicer provided an estoppel letter a payoff statement which

28  was used to make payment in full of the unpaid balance of the

29  loan secured by the mortgage.

30         (f)  A statement that payment in full of the unpaid

31  balance of the loan secured by the mortgage was made in

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 1  accordance with an estoppel letter the payoff statement and

 2  that a copy of the certificate of release was sent to the

 3  mortgagee or mortgage servicer that provided the estoppel

 4  letter payoff statement.

 5         (5)(4)  EXECUTION.--

 6         (a)  A certificate of release authorized by subsection

 7  (3) (2) must be duly executed, sworn to or affirmed under

 8  penalty of perjury before a notary public, and recorded and

 9  may be executed by an officer of a title insurer or by a duly

10  appointed agent of a title insurer. Such delegation to an

11  agent by a title insurer does shall not relieve the title

12  insurer of any liability for damages caused by the agent for

13  the execution or recordation of a certificate of release.

14         (b)  The appointment of an agent must be duly executed,

15  acknowledged, and recorded by an officer of a title insurer

16  and must state:

17         1.  The title insurer as the principal.

18         2.  The identity of the person, partnership, or

19  corporation authorized to act as agent to execute and record

20  certificates of release under provided for in this section on

21  behalf of the title insurer.

22         3.  That the agent has the full authority to execute

23  and record certificates of release under provided for in this

24  section on behalf of the title insurer.

25         (c)  A separate appointment of agent is shall not be

26  necessary for each certificate of release if provided that at

27  least one such appointment is recorded in the county in which

28  the mortgaged property is located. The appointment of agent

29  must be rerecorded where necessary to establish the authority

30  of the agent, but such authority shall continue until a

31  revocation of appointment is recorded in the office of the

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 1  county recorder in which the appointment of agent was

 2  recorded.

 3         (d)  After recording recordation of a title insurer's

 4  revocation of appointment in the office of the county recorder

 5  in which the appointment was recorded, the agent whose

 6  appointment is revoked in such county shall have no further

 7  authority to execute or record certificates of release as

 8  provided in this section on behalf of that title insurer with

 9  respect to any mortgages recorded in that county, and no such

10  certificate of release thereafter executed or recorded by that

11  agent on behalf of that title insurer is shall be effective to

12  release any mortgage recorded in that county.

13         (6)(5)  EFFECT.--For purposes of releasing the

14  mortgage, a certificate of release containing the information

15  and statements provided for in subsection (4) (3) and executed

16  as provided in subsection (5) may (4) is entitled to be

17  recorded with the county recorder and operates as a release of

18  the mortgage described in the certificate of release. The

19  county recorder shall rely upon the certificate to release the

20  mortgage. Recording of a certificate of release by a title

21  insurer or its agent shall not relieve the mortgagor, or the

22  mortgagor's successors or assigns, from any personal liability

23  on the loan or other obligations secured by the mortgage. A

24  certificate of release recorded pursuant to this section

25  fulfills any other obligation of the mortgagee or mortgage

26  servicer to file a satisfaction or release of the mortgage.

27         (7)(6)  LIABILITY OF TITLE INSURER.--

28         (a)  In addition to any other remedy provided by law, a

29  title insurer and a title insurance agent recording a

30  certificate of release under this section shall be liable to

31  the holder of the obligation secured by the mortgage for

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 1  actual damage sustained due to the recording of the

 2  certificate of release. Reasonable costs and attorneys' fees

 3  shall be awarded to the prevailing party.

 4         (b)  The title insurer named in a certificate of

 5  release filed by a duly appointed agent shall be liable

 6  pursuant to this subsection without regard to whether the

 7  title insurer authorized the specific certificate of release

 8  recorded by the agent.

 9         (c)  The title insurer and the title insurance agent

10  shall have no liability under this subsection if the title

11  insurer or title insurance agent shows that payment in full of

12  the unpaid balance of the loan secured by the mortgage was

13  made in accordance with the estoppel letter payoff statement

14  furnished by the mortgagee or the mortgage servicer.

15         (d)  Liability of a title insurer under pursuant to

16  this section is shall be considered to be a title insurance

17  claim on real property in this state pursuant to s. 627.7865.

18         (8)(7)  RECORDING.--If a mortgage is recorded in more

19  than one county and a certificate of release is recorded in

20  one of such counties, a certified copy of the certificate of

21  release may be recorded in another of such counties with the

22  same effect as the original. In all cases, the certificate of

23  release must shall be entered and indexed as satisfactions of

24  mortgage are entered and indexed.

25         (8)  APPLICATION.--This section applies only to a

26  mortgage, including any modifications of such mortgage, in the

27  principal amount of $500,000 or less.

28         (9)  PREMIUM.--The Financial Services Commission shall

29  adopt rules establishing an actuarially sound premium charge

30  to be made for each certificate of release recorded pursuant

31  to this section.

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 1         Section 10.  This act shall take effect October 1,

 2  2007.

 3  

 4          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 5                         Senate Bill 636

 6                                 

 7  The committee substitute provides the following changes:

 8  1.   Revises the provision that allows title insurance agents
         to reduce or rebate to customers the agent's commission
 9       or other agent fees and charges.

10  2.   Specifies that no rebate can be paid to a third party for
         referring title insurance business to a particular agent
11       or insurer.

12  3.   Amends the definition of an "estoppel letter" relating to
         mortgage certificates of release.
13  
    4.   Revises the provision to clear liens that have been
14       satisfied from the public records.

15  5.   Deletes the requirement that the Financial Services
         Commission adopt rules to establish a premium charged by
16       a title agent for preparing and recording of an affidavit
         of release of a mortgage.
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