Florida Land Title Association Gov't Affairs Blog

Insurance agent restructuring bill Signed by Governor

Alan B. Fields — Tue, 14 Feb 2012 22:14:47 GMT

5/4/12 Update: Today Governor Scott signed HB 725 making it law. The FLTA bulletin providing more detail about this bill can be found here.

4/20/12 Update: HB 725 was sent to the Governor today. He has until May 5 to act on this bill.

3/7/12 Update: The house version of the bill which included the title industry fixes on key issues was unanimously adopted in the Senate today. Our Special Thanks to Greg Thomas at DFS, Senator Richter and Rep. Hagar for working so closely with the title industry to address our concerns.

3/5/12 Update: SB 938 has been placed on the Senate Special Order calendar on Wednesday 3/7/12.

2/29/12 Update: HB 725, including the title industry supported amendments unanimously was passed by the full House of Representatives.

2/28/12 Update. Today on second reading, HB 725 was amended on the house floor to exempt title agents from the requirement to take a single 7 hour continuing education course. Our Thanks to the good folks at DFS and the title insurance Lobby team for arranging this important change for the title industry.

The Senate counterpart awaiting second reading and we anticipate conforming changes.

2/22/12 Update. Today HB 725 was passed out of the House Judiciary committee with amendments preserving the $35,000 surety bond -- but moving responsibility for it to the insurers as part of the appointment renewal process; softening the prohibition on solicitation for title insurance, but still requiring that only a licensed agent or an attorney-agent could solicit the individual proposed insured. We were unsuccessful in lessening the requirement that the majority of our continuing education hours be taken in a single 7 hour block. This bill will now move to the house floor.

2/21/12 Update Today SB 938 was approved by the Senate Budget committee without the title industry's amendments. We'll continue to work on protecting the existing surety bond, and make other changes but things are not looking promising on this bill.

Senator Richter and Rep. Hagar have filed a bill at the request of DFS that the industry has been tracking since early in the session. Along with changes, the bill would

a. Eliminate the current $35,000 surety bond requirement

b. Provide that only licensed agents could solicit for the sale of insurance

c. Require continuing education to be taken in a 7 hour course (which could be broken up over multiple days) from a single provider.

We have been working with DFS in an attempt to address concerns with these provisions and believe we have reached agreement on language to preserve the current $35,000 bond -- which is important to the protecting the public, and softening the prohibition on unlicensed persons communicating with Realtors and other referral sources. We are still working on a solution to the 7 hour block CE requirement.

In the meantime, these bills have been progressing. both bills have one remaining committee stop.

Title Data Call Bill Signed by Governor

Alan B. Fields — Fri, 27 Jan 2012 16:41:13 GMT

5/4/12 Update: Today, Governor Scott signed the Title Data Call Bill (HB 643) and its related public record exemption (HB 645) making them law. This bill was strongly supported by FLTA and our bulletin providing more information can be found here.

4/20/12 Update: The Title Data Call bill HB 643 and its public records companion HB 645 have been submitted to Governor Scott for consideration. He has until May 5 to act on these bills.

3/7/12 Update: Thanks to the Hard Work and Dedication of Rep. George Moraitis and Sen. Thad Altman, the Title Insurance Data Call bill, and the related public records exemptions, have passed in both the House and the Senate. Given Gov. Scott's historic concern about minimizing regulatory burden, we expect it will be necessary to reassure his staff that this bill is something that the regulated feel is appropriate and necessary.

3/5/12 Update: SB 1404 and 1406 have been placed on the special order calendar for Senate vote on Wednesday 3/7/12. This could not have been accomplished without all of the coordinated hard work of the lobby team that represents the various underwriters and the Agents Section. My thanks to all of you!!!

3/2/12 Update: On Wednesday, Senator Bennett submitted a late filed amendment to the Data Call bill which mandated the issuance of a "supplemental" owners policy every time a lenders policy was written, and separately would have required the payment of policy limits on a total title failure without regard to the fair value of the property. In combination the two provisions would have created a significant opportunity for fraud. The title lobby team sprang into action and was successful in blocking the amendment by a close voice vote. Following that success, the bill (without the objectionable amendment) was passed by the budget committee and has proceeded to the full senate.

Separately, the senate public records exemption was withdrawn from its last committee of reference so that it could proceed to the senate floor.

2/23/12 Update: The Public Records exemption for information submitted in response to the data call unanimously passed the full house of representatives today. The senate companions are awaiting review by the budget committee.

2/16/12 Update: Congratulations to Rep. George Moraitis! Today the Florida House of Representatives unanimously passed the title industry Data Call bill, HB 643. The linked public records exemption has not yet been heard by the full house but has passed all committees. The Senate companions SB 1404 & SB 1406 have one remaining committee stop.

2/15/12 Update: HB 643 has been approved by all committees, placed on the special order calendar and had its second reading today and is on the agenda for a floor vote tomorrow. The companion public records exemption is is also on the special order calendar and has been read twice.

2/9/12 Update: SB 1404 was reported favorably by the Senate Judiciary Committee this afternoon after amendments conforming it to the house version were made. Next and final committee stop is the Senate Budget Committee.

2/8/12 Update: This morning both HB 643 and 645 were reported favorably by the House Economic Affairs committee with two negative votes. This was the final committee stop for the public records exemption of HB 645, which will now move to the house floor.

Yesterday the Senate government operations committee approved the Senate public records exemption SB1406.

2/3/12 Update: This morning, HB 643 was recommended favorably by the Rulemaking and Regulation Subcommittee. It has one remaining committee stop before the House economic affairs committee.

2/2/12 Update: SB 1406 (the public records companion bill is scheduled to be heard by the Governmental Oversight and Accountability Committee on 2/7/12 at 4:00 PM

One of FLTA's major legislative initiatives for 2012 has been to "fix" the statutes to permit a proper data call. Anytime a government agency is tasked with promulgating (as they do in Florida) or ruling upon the reasonableness of an insurance rate, they need information to do that. It's fairly easy in most lines of insurance, where they can get all necessary information from the insurer.

In title insurance, as we all know, the title agency does a large share of the work in searching title, examining the search, determining insurability and appropriate requirements, in clearing title objections and defects and issuing the final policy. So if you are going to have an appropriate premium rate, they need to understand the substantial costs the agencies incur in doing all of that work. On the other side of the equation, we've been working closely with OIR and DFS to develop the questionnaire that will provide enough information to do that. There is a good article on that process in our June 2011 Newsletter.

In this post, I'm happy to report that this week we were successfully in moving both the House Bill and its related public records exemption (HB 643/HB645 sponsored by Rep. George Moraitis (R-Ft. Lauderdale -- and himself a very good real estate attorney) and its Senate companions (SB 1404/1406 by Sen. Thad Altman R-Melbourne) through one more committee stop.

We still have a ways to go, but remain cautiously optimistic about these bills.

Oral Argument in Pino v. BoNY

Alan Fields — Fri, 04 May 2012 13:37:49 GMT

The Oral Arguments in Roman Pino v. Bank of New York will be heard before the Florida Supreme Court on Thursday, May 10, 2012 beginning at 9:00 AM. In this case the court will be addressing the circumstances under which a voluntary dismissal (a final judgment or other court action) can be set aside long after the case is over, based on underlying fraud on the court. FLTA and ALTA, represented by former Justice Ken Bell, have filed a joint Amicus brief in which we urge the court to protect innocent third party purchasers out of foreclosure from having their ownership rights overturned under such circumstances.

More background on this case and copies of the various briefs can be found here. The Oral Arguments can be watched live on http://www.wfsu.org/gavel2gavel/index.php.

While the certified question being addressed is narrow, the title industry was very concerned about the possibility of a sweeping ruling which might call into question the insurability of any REO property in light of widespread allegations of falsified documents and “robo-signing.”

Our thanks again to Justice Bell for his excellent brief and to the insurers who have so generously funded our amicus participation in this case.

40 States have followed Florida's lead in prohibiting Private Transfer Fee Covenants

Alan Fields — Sat, 21 Apr 2012 17:45:08 GMT

Kentucky and Alaska have recently become the 39th and 40th States to prohibit private transfer fee covenants. The Florida prohibition was an initiative of the Real Property, Probate and Trust Law Section, supported by FLTA, which passed the Florida legislature and became law back in 2008 as Fla. Stat. 698.28.

Who says Florida can't have a national influence?

Facts on New Short Sale Timeline Requirements for Fannie and Freddie

Alan Fields — Sat, 21 Apr 2012 17:39:32 GMT

Our friends at ALTA have posted an article on the new short sale timeline guidelines from Fannie & Freddie. More here.

Construction Lien Fix Bill Sent to Governor

Alan B. Fields — Fri, 17 Feb 2012 01:31:24 GMT

4/20/12 Update: HB 897, which includes the landlord liability for tenant improvements "Fix" from last year's bill, has been sent to Governor Scott for consideration. He has until May 5 to act on it.

3/9/12 Update: HB 897 has passed the Senate by unanimous vote

3/7/12 Update: SB 1202 has been placed on the special order calendar for Friday 3/9/12.

3/6/12 Update: SB 1202 was "withdrawn" from its last committee of reference and placed on the Senate calendar for second reading.

2/23/12: Today the House Judiciary Committee unanimously approved HB 897 by FLTA Member Rep. George Moraitis. Among other things this bill fixes a glitch in last year's bill addressing the landlord's liability for tenant improvements and a last minute amendment made last session which implied that a Notice of Commencement continued in effect until the work was completed and final payment made, regardless of the date specified. This was its last committee of reference in the House and the bill will proceed to the full House of Representatives.

The Senate companion, SB 1202, has one more committee stop.

"Bulk Condo Buyer" extension signed by Governor

Alan Fields — Tue, 10 Apr 2012 15:57:29 GMT

HB 517 Chapter 2012-61, Laws of Florida

In an effort to revitalize the Condominium market, in 2010 the Legislature passed the Distressed Condominium Relief Act. This act relieved bulk buyers and bulk assignees (generally purchasers of seven or more units, with or without an assignment of developer rights), from certain liabilities and obligations as a successor developer. The original Act was scheduled for automatic repeal on July 1, 2012. HB 517 including language extended the Act until July 1, 2015.

City of Palm Bay v. Wells Fargo

Alan Fields — Mon, 09 Apr 2012 20:05:50 GMT

Some months ago -- thanks to the hard work of Homer Duvall (with a little assistance from me and others), FLTA filed an amicus brief with the Florida Supreme Court in City of Palm Bay v. Wells Fargo. This is the case which addresses the relative priority of city code liens vs. recorded mortgages and which mischaracterized Florida as a "race notice" state. More on that at http://www.flta.org/GovtAffairs

The oral arguments are scheduled for this Wednesday 4/11 and expected to begin at about 10:40. While amici do not usually have the opportunity to make oral arguments, FLTA will be present to answer any questions the court may choose to direct to us. The proceedings are normally broadcast over the internet at http://www.wfsu.org/gavel2gavel/index.php

Homestead Clarifications Sent to Governor

Alan Fields — Mon, 09 Apr 2012 17:58:03 GMT

HB 733 was part of the package sent to the Governor last week. He has until April 21 to act.

The first issue addressed in HB 733 is simply bringing the statutes into conformity with judicial interpretations. We have long known that Tenancy by the Entireties properties and properties held as Joint Tenants with Right of Survivorship passed automatically to the survivor upon death and were not subject to the constitutional prohibition on devise. Ostyn v. Olympic, 455 So.2d 1137 (Fla. 2d DCA 1984); see also Marger v. De Rosa, 57 So.3d 866 (Fla. 2d DCA 2011). The bill amends the current definition of “protected homestead” to expressly state that “real property owned in tenancy by the entireties or in joint tenancy with rights of survivorship is not protected homestead.”

The bill also clarifies the timeframes for a surviving spouse, who would normally receive a life estate in homestead property to elect instead to receive an undivided one-half interest in the homestead as a tenant in common.

Currently a natural or adoptive parent whose parental rights have been terminated may still inherit through intestate succession upon the death of the child. The bill creates §732.1081, Fla. Stat., treats the parent as having predeceased for inheritance purposes upon termination of parental rights.

Martin/St. Lucie County Boundaries changed

Alan Fields — Mon, 09 Apr 2012 16:36:36 GMT

Subject to approval by voters in the affected areas, HB 800, Laws of Florida, ch. 2012-45 will change the boundary between St. Lucie County and Martin County such that a 129 acre enclave, including the subdivision of Beau Rivage off Northwest Britt Road will move from St. Lucie to Martin County.

If approved, this change will become effective July 1, 2013.

Please make certain that your searchers and examiners are aware of this upcoming change, as it will be necessary to search the affected properties in records of both counties.

The last time county boundaries were changed was 2007 when part of southern Palm Beach County was annexed into Broward County.

Transferee Tax Liability Bill Signed by Governor

Alan B. Fields — Fri, 27 Jan 2012 16:56:06 GMT

4/6/12: The governor has signed the transferee tax liability bill, which includes the real estate "carve outs" that FLTA advocated. Our thanks again to Rep. John Wood, Russ Hale representing the Florida Bankers, and Bill Wiley and Gary Teblum of the Business Law Section for all of their hard work on this bill.

3/30/12: The Transferee Tax Liability bill has been signed by the officers and sent to the Governor for signing or veto. He must act on this by 4/14/12.

3/7/12: Thanks to the hard work of Rep. John Wood (R - Winter Haven), the Transferee Tax liability bill has been passed by both houses and will move on to the Governor for signature.

3/6/12: The House version of the transferee tax liability bill has moved to the Senate floor and is on second reading.

3/1/12 After a long period of inactivity in the Senate, the Transferee Tax Liability bill (SB 170) was withdrawn from its last committee of reference and placed on the special order calendar for 3/6/12.

Last year, through the hard work of Rep. John Wood (R- Winter Haven), we came close to solving a significant unintended problem with the transferee tax liability law. That law makes the purchaser of a business responsible for unpaid sales and other taxes owed by the seller. Unfortunately, it can be triggered by the sale of real estate (even a home, under some circumstances) where one is not buying the "business" which triggered the tax.

While the tax liability of the buyer would not be covered under a title policy, our customers often claim the closing agent is responsible for protecting them from all unexpected liabilities. And this is one which can't be detected through a review of the official records -- or anything short of demanding a tax audit of your seller. (obviously not a popular requirement).

The bill, which FLTA strongly supported would have clarified that the sale of 1-4 family residential property, of owner occupied commercial property or vacant land would not trigger transferee tax liability. It passed through the entire committee process last year, passed in the Florida House and died the last night in the Florida Senate.

So, we had to start all over this year. With the strong leadership of the Business and Tax Law Sections of the Florida Bar, this year's bills have passed all committees in the house and all but one committee in the Senate. We are optimistic that this good bill will pass into law this session.

Payoff Statements for Subsequent Owners Signed By Governor

Alan B. Fields — Fri, 17 Feb 2012 01:41:39 GMT

4/6/12: The RPPTL supported bill requiring lenders to provide limited estoppel statements for subsequent owners of property has been signed by the Governor.

3/30/12: The bill has been signed by the officers and sent to the Governor for signing or veto. He must act on this by 4/14/12.

3/7/12 Update: This bill has passed in both the House and the Senate and will proceed to the Governor for consideration.

3/6/12 Update: The Senate version of this bill was taken up in the House and is on second reading.

2/29/12 Update: SB 1050 passed the full Senate unanimously.

The RPPTL Section initiative to require lenders to provide mortgage payoff information to subsequent owners of encumbered property, notwithstanding privacy considerations, HB 505, has unanimously passed out of its final committee of reference in the house today. This same bill includes changes to the uniform principal and income act.

The Senate companion, SB 1050 was approved by the judiciary committee today, and moved immediately onto the Senate special order calendar.

FHFA Issues Final Rule on Transfer Fees

Alan Fields — Mon, 19 Mar 2012 00:30:04 GMT

After a long period with no visible activity, the final version of the Private Transfer Fee rule was released by the Federal Housing Finance Agency on March 16, 2012. Like earlier versions, this prohibits Fannie, Freddie and the Home Loan Banks from purchasing, investing in or otherwise dealing in any mortgages on properties encumbered by private transfer fee covenants or securities backed by such mortgages. The definitions go into great detail, but it is important to note that the application is limited to covenants created on or after February 8, 2011.

More information on this rule can be found Here

Supreme Court Denies FLTA Amicus Request

Alan Fields — Fri, 16 Mar 2012 20:07:51 GMT

I’m sorry to report that the Supreme Court has denied our motion for leave to file an Amicus in the CRC 603 vs. North Carillon case regarding the requirements for holding escrows on pre-construction condominium contracts. More information about this case and the problems it potentially presents to the title industry can be found in this bulletin and this one.

FLTA thanks our friends at Fidelity National for their generosity in funding this appeal on behalf of the entire industry and Gwynne Young, Sylvia Walbolt and Christine Graves at Carlton Fields for all of their hard work on it.

Clerk of Court has Affirmative Duty to notify Owner of Tax Sale

Alan Fields — Mon, 12 Mar 2012 22:55:10 GMT

Our thanks to Paul Minoff pminoff@mcglinchey.com at McGlinchey Stafford PLLC for pointing out and summarizing Delta Property Management v. Profile Investments.

In a decision that may prove to be a mixed blessing for title insurers and a headache to those who buy tax certificates, yesterday, the Florida Supreme Court ruled that when faced with knowledge that a notice of tax sale sent to the last known address of the property owner has been undelivered, the Clerk of Court has an affirmative duty to take reasonable steps to make sure that the property owner is provided with notice.

According to the court, "reasonable steps depend on the particular circumstances of the case and may include: checking the records of the taxing authorities for a change of address submitted by the legal titleholder; resending notice by regular mail so that no signature is required; posting notice on the property to be sold, not merely at the last known address of the titleholder; or sending a notice addressed to 'occupant' by regular mail."

Whether this ruling will make any practical difference in a given case is to be seen, but it could certainly spawn litigation in cases where the tax sale notice is not delivered regarding whether the Clerk of the Court did his/her job in accordance with this opinion.

As always, check with your underwriter as to any specific requirements for insuring a transaction following a tax deed.

Thank you Paul for all of your continuing support of FLTA.

A Note endorsed in Blank and Allegations of Ownership are Sufficient.

Alan Fields — Mon, 12 Mar 2012 22:48:16 GMT

FLTA Member (and Darn Good Lawyer), Paul H. Minoff at McGlinchey Stafford PLLC has been doing a great job in keeping us up to date on the latest rulings affecting title for which we thank him.

In yet another opinion dealing with the issue of standing to bring and maintain a foreclosure action, the Florida 5th District Court of Appeal ruled yesterday that DBTNC's possession of the original note endorsed in blank along with its allegation in the complaint that it was the owner and holder of the note and mortgage at the time of the filing was enough to establish standing even though the assignment of mortgage to DBNTC was executed after the date of the filing of the original complaint. Here's the Opinion.

The court affirmed the view consistently espoused in the 4th DCA that the mortgage follows the note and that as long as the plaintiff had possession of the original note at the time of the filing of the complaint (or was a non-holder with the rights of the holder at the time of the filing), standing was established. It further affirmed that an assignment of mortgage is NOT required to establish standing in Florida.

Additionally, the court overturned the lower court's dismissal of DBNTC's complaint with prejudice due to DBNTC's counsel's violation of a court order, finding that the trial court did not apply all of the factors required for such a drastic remedy under the leading Florida Supreme Court case of Kozek v. Ostendorf, and further finding, among other things, that there was not any evidence that DBNTC even knew of its counsel's disregard of the court's order.

Despite these consistent standing opinions, foreclosure defense counsel are still not being dissuaded from raising standing issues in response to foreclosure complaints, and we are probably a long way away from seeing the end of these appellate opinions dealing with standing issues.

Fannie/Freddie Fees to Rise

Alan Fields — Thu, 08 Mar 2012 16:05:01 GMT

In order to pay for the payroll tax cut, as of April 1, Fannie Mae and Freddie Mac will be raising the fee they charge lenders for guaranteeing mortgages, charging an additional 0.1 percent of the loan amount on top of the current charge. That's expected to drive up interest rates about one-eighth of a percent as those costs are passed along to borrowers. More here

Having discovered this nearly invisible source of funding for their favorite projects, a group of senators have proposed extending the “tax” on Fannie/Freddie guaranties to pay for some of the costs of the BP Oil Spill Clean-up. More from Housing Wire.

Condominium Act Amendments on Calendar for Friday

Alan B. Fields — Fri, 24 Feb 2012 02:04:28 GMT

3/7/12 Update: SB 680 has been placed on the Special Order Calendar for Friday 3/9/12.

3/6/12 Update: SB 680 was "withdrawn" from its last committee of reference and placed on the Senate calendar for second reading.

2/29/12: HB 319 was approved by the full House by a vote of 114-1.

2/23/12 HB 319 by Rep. George Moraitis, passed in its final committee yesterday and progressed to second reading before the full house. Among many changes to the Condominium Act, this bill extends the “Bulk Buyer” protections through 2015 – so hopefully this will help move more condominium units. It also provides some much needed clarity on the question of when subsequent purchasers are liable for late fees, interest, costs, and reasonable attorney fees incurred by the association in attempts to collect from prior owners.

The senate companion, SB 680 by Sen. Bogdanoff is awaiting action by the budget committee, it’s last committee of reference.

Hidden Lien Bill on Special Order Calendar for Last Day of Session

Alan B. Fields — Mon, 30 Jan 2012 19:38:35 GMT

3/7/12: SB 670, the Hidden Lien Bill, has been placed on the special order calendar for Friday 3/9/12 -- the last day of the Session. There is still hope, but always a dangerous place to be on the schedule.

3/6/12: SB 670 was "withdrawn" from the Budget committee and placed on the calendar for second reading. This positions the bill for possible passage by the Senate later this week.

3/5/12 HB 671, by Rep. John Wood, passed the full house of representatives today by a vote of 101-14. The Senate Companion SB 670 was not among those withdrawn from the budget committee today, which could indicate troubles.

3/2/12 HB 671 was read the second time today on the house floor. The senate companion SB 670, after initial favorable committee reviews has been stuck in a Senate budget subcommittee with no action since January 31. Efforts are being made to "withdraw" the referral to the final committees so that it may be considered by the full Senate.

2/8/12 HB 671 passed unanimously out of the House judiciary committee and was placed on the house calendar

SB 670, the hidden liens bill which would require all governmental liens other than ad valorem taxes, special assessments and for utility services to be recorded in the official records before they were binding against a purchaser or lienholder for value, was passed unanimously out of the Senate Community Affairs committee this morning. It has one remaining committee stop in the Senate.

It's companion, HB 671 also has one remaining committee stop and an amendment conforming the two versions has been filed.

Updated Bill Tracking Report Posted

Alan B. Fields — Fri, 17 Feb 2012 22:12:17 GMT

We have posted the updated FLTA Bill Tracking Report. FLTA members can access it Here