what lenders and lawyers need to know about icl
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Presented by
What Lenders and Lawyers Need to Know about Insured Closing Letters
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Many attorneys do not know that title insurers are liable to their policy holders under two
sources of recovery:
The title insurance policy
The Insured Closing Letter
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The Title Insurance Policy insures that the lender’s mortgage instrument is valid and that it is recorded in the lien position, or priority, that was contracted for with the borrower.
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The Insured Closing Letter (“ICL”)assures that the lender and borrower will be “made whole” in the event of a closing attorney’s error or fraud in the closing.
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Title insurance protects policy holders against losses due to defects
in title, and errors in the public records or title examination.
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ICLs protect policy holders against losses due to a closing attorney’s
accidental or deliberate mishandling of closing funds or documents.
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CATIC uses the American Land Title Association (“ALTA”) form ICL developed in 1987, which was revised in 1998 and 2006, for residential real estate closings.
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The ICL covers attorney errors regarding:
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The ICL does not cover attorney errors regarding:
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An ICL provides coverage for a specific transaction, and expires one year from the closing date.
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The lender must
receive a Policy Commit
ment
The ICL must be issued for a
specific transact
ion
The title insurer must be identified on the HUD,
and the insurance premium must be
collected at closing
The ICL, Policy
Commitment, and
final policy must be issued
through the same title
insurer
The lender must
receive a final title insurance policy
ICL coverage requires
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The lender does not
receive a Policy Commit
ment
The ICL is changed by
someone other that
title insurer or used for
more than one
transaction
The title insurer is
not identified
on the HUD, and a title insurance premium must be
collected at closing
The ICL, Policy
Commitment, and
final policy are not issued
through the same
title insurer
The lender
does not receive a final title
insurance policy
Any one of these actions can destroy ICL coverage:
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ICL coverage is destroyed/preserved
A Policy Commitment is
submitted to the lender.
A Policy Commitment is
not submitted to the lender.
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ICL coverage is destroyed/preserved
The ICL is issued for a specific transaction.
The ICL is changed by
someone other that title insurer or used for more
than one transaction
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ICL coverage is destroyed/preserved
The title insurer is identified on
the HUD, and the insurance
premium is collected at
closing.
The title insurer is not identified on the HUD, and
the insurance premium is not
collected at closing.
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ICL coverage is destroyed/preserved
The ICL, Policy Commitment, and
final policy are issued through the same title
insurer.
The ICL, Policy Commitment, and
final policy are not issued
through the same title insurer.
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ICL coverage is destroyed/preserved
The lender receives a final title insurance
policy.
The lender does not receive a
final title insurance policy.
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Failure to follow the lender’s written closing
instructions
Loss of the lender’s
security or priority position
Defalcation or misuse
of loan funds
Failure to remit a
final title insurance
policy
Types of errors covered by an ICL:
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Failure to follow the lenders written instructionsMay result from the closing attorney’s failure to follow written closing instructions.
Closing attorneys cannot rely on oral instructions, and must advise the lender when closing instructions conflict with HUD Regulations or local Title Standards.
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Examples of failure to follow the lenders written instructions:Failing to record a Deed into a sole borrower when one spouse is a borrower but both spouses hold title.
Failing to subordinate a Homestead Declaration for both spouses when only one spouse is the sole owner and borrower.
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Loss of security or priority positionErrors in recording the mortgage can give rise to both a claim under a title insurance policy and an ICL.
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Examples of loss of security or priority position:
delayed recording.
failure to record the mortgage, recording mortgages in the wrong order.
recording mortgages on the Registry of Deeds that should be filed with the Registry District of the Land Court or vice versa.
recording a mortgage after a borrower has filed a Bankruptcy petition.
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Defalcation or misuse of mortgage funds Defalcation or misuse of funds can also mean that a title insurance premium collected at closing has not been paid to the title insurer.
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Examples of defalcation:
Miscalculating short mortgage payoff amounts.Deliberately not paying off mortgages.Failing to disburse funds in accordance with the HUD Settlement Statement.
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Failure to remit a final title insurance policyMost attorneys do not know that failing to submit a final title insurance policy is the basis for an ICL claim. Without ICL coverage, the lender may look to the closing attorney for recovery
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• Review of closed loan package by lender.
1
Events that trigger ICL claims are:
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Recommendations for Lawyers and Lenders
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Protect title insurance coverage.
• Examine titles for no less than 50 years for purchase-money mortgage closings, and for no less than 20 years for refinance transactions.
• Search Probate and Bankruptcy records.• Issue Policy Commitments only after reviewing completed title
examinations.• Amend Policy Commitments if you discover new information or need to
make corrections.
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Preserve ICL coverage.
• Obtain an ICL for each transaction.• Never alter or reuse ICLs.• Name the same title insurance company on the
ICL, Policy Commitment, Line 1108 on the HUD, and final title insurance policy.
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Safeguard client funds.• Balance HUD Settlement
Statements before closing. • Record mortgages
promptly after confirming receipt of funds.
• Remit title insurance premiums and disburse funds immediately after recording.
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Add value and demonstrate expertise.
• Submit closing packages with original final title insurance policies promptly after closing.
• Issue Certification of Title as required under G.L.c. 93, §70.
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