BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 957| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 957 Author: Galgiani (D) Amended: 8/17/09 in Senate Vote: 27 - Urgency SENATE JUDICIARY COMMITTEE : 4-0, 6/23/09 AYES: Corbett, Harman, Florez, Leno NO VOTE RECORDED: Walters ASSEMBLY FLOOR : 77-0, 5/26/09 - See last page for vote SUBJECT : Residential real estate transfers SOURCE : Author DIGEST : This bill prohibits a seller of residential real property from requiring a buyer to purchase title insurance or escrow services, in connection with the sale of a property, from a company chosen by the seller, as specified. This bill limits its provision to properties improved by four or fewer dwelling units purchased at a foreclosure sale. The provisions of the bill sunset on January 1, 2105. Senate Floor Amendments of 8/17/09 add clarifying language and state that a buyer may agree to accept the services of a title insurer or escrow agent recommended by the seller if written notice of the right to make an independent selection is provided. The amendments also limit the bill's provisions to residential real property improved by CONTINUED AB 957 Page 2 four or fewer dwelling units, add findings and declarations, and make other clarifying changes. ANALYSIS : Existing law: Existing federal law, the federal Real Estate Settlement Procedures Act (RESPA), regulates transactions between buyers, sellers, and mortgagees involving "settlement services" (including title insurance and escrow services). That Act generally requires that borrowers receive certain timely disclosures relating to the costs of those settlement services, and prohibits certain practices on the part of a mortgagee that increase the costs of settlement services. (12 United States Constitution Section 2601 et seq.) Existing federal law provides, under RESPA, that no seller of property that will be purchased with the assistance of a federally related mortgage loan shall require directly or indirectly, as a condition to selling the property, which title insurance covering the property be purchased by the buyer from any particular title company. Any seller who violates that provision is liable to the buyer in an amount equal to three times all charges made for such title insurance. (12 United States Constitution Section 2608.) Existing state law, the Escrow Law, provides for the licensing of escrow agents by the Department of Corporations, and states that any person subject to the Escrow Law who violates any provision of RESPA, or any regulation promulgated thereunder, violates the Escrow Law. (Financial Code Section 17425.) Existing state law requires a real property seller, or the seller's agent, to disclose to buyers any material facts that would have a significant and measurable effect on the value or desirability of the property (if the buyer does not know, and would not reasonably discover, those facts). ( Karoutas v. Homefed Bank (1991) 232 California Appeals 3d 767; Reed v. King (1983) 145 California Appeals 3d 261.) Existing state law requires a seller, or the seller's agent AB 957 Page 3 in certain cases, to disclose to a buyer when a property is in a specified natural hazard zone, and requires the disclosure to be on a Natural Hazard Disclosure Statement, as specified. (Civil Code Sections. 1103, 1103.2.) Existing law permits a seller to use an expert report or opinion from an engineer, land surveyor, geologist, or expert in natural hazard discovery to fulfill his or her natural hazard notification requirements. (Civil Code Section 1103.4.) Existing state law exempts certain transfers from the above requirement to provide a natural hazard disclosure statement, including transfers of property acquired at a foreclosure sale. (Civil Code Section 1103.1.) Existing law provides that neither the seller, nor their agent, shall be liable for any error, inaccuracy, or omission of any information delivered if the error, inaccuracy, or omission was not within the personal knowledge of the transferor or the listing or selling agent, as specified. (Civil Code Section 1103.4.) This bill enacts the Buyer's Choice Act. This bill contains the following findings and declarations: (1) sales of foreclosed properties have become a dominant portion of homes on the resale real estate market; (2) the recent troubled real estate market has resulted in a concentration of the majority of homes available fore resale within the hands of foreclosing lenders and has dramatically changed the market dynamics affecting ordinary home buyers; (3) preserving the fair negotiability of contract terms is an important policy goal to be preserved in real estate transactions; (4) the potential for unfairness occasioned by the resale of large numbers of foreclosed homes on the market requires that protection against abuses be made effective immediately; (5) the federal Real Estate Settlement Procedures Act (RESPA) creates general rules for fair negotiation of settlement services prohibits kickbacks and specifically prohibits a seller in a federally related transaction from requiring a buyer to purchase title insurance from a particular insurer; (6) California law doe not specifically prohibit a seller from imposing, as a condition of sale of a foreclosed home, the purchase of title insurance or escrow AB 957 Page 4 services from a particular insurer or provider; (7) therefore it is necessary to add this act to California law to provide to a home buyer protection that follows the RESPA model and applies to, and prevents, the conditioning of a sale of a foreclosed home on the buyer's purchase of title insurance from a particular insurer or title company and/or the buyer's purchase of escrow services from a particular provider. This bill specifies that it is the intent of the Legislature that, for the purpose of this act, the sale of a residential real property is deemed to include the receipt of an offer to purchase that residential real property. The bill provides that a seller of residential real property improved by four or fewer dwelling units shall not require directly or indirectly, as a condition of selling the property, that title insurance covering the property or escrow service provided in connection with the sale of the property be purchased by the buyer from a particular title insurer or escrow agent. This bill does not prohibit a buyer from agreeing to accept the services of a title insurer or an escrow agent recommended by the seller if written notice of the right to make an independent selection of those services is first provided by the seller to the buyer. The bill contains the following definitions: 1. "Escrow service", means service provided by a person licensed pursuant to Division 6 (commencing with Section 17000) of the financial Code, or exempt from licensing pursuant to Section 17006 of the Financial Code. 2. "Seller", means a mortgagee or beneficiary under a deed of trust who acquired title to residential real property improved by four or fewer dwelling units at a foreclosure sale, including a trustee, agent, officer, or other employee of any such mortgagee beneficiary. 3. "Title insurance" means insurance offered by an insurer admitted in this state to transact title insurance pursuant to Chapter 1 (commencing with Section 12340) of AB 957 Page 5 Part 6 of the Insurance Code. This bill states that a seller who violates the bill's provisions shall be liable to a buyer in an amount equal to three times all charges made for the title insurance, escrow service, or Natural Hazard Disclosure Statement. In addition, any person who violates this section shall be deemed to have violated his/her license law and shall be subject to discipline by his/her licensing entity. This bill provides that a transaction subject to the bill's provisions shall not be invalidated solely because of the failure of any person to comply with any provision of the Act. This bill sunset on January 1, 2015. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 8/18/09) Escrow Institute of California Property ID ARGUMENTS IN SUPPORT : According to the author's office, since the last major bout of foreclosures during the downturn of the 1990's, a practice has developed in the foreclosure market that is having significant consequences to many groups, including home buyers. Banks and the Housing and Urban Development Department are increasingly requiring the use of specific service providers when they are the seller of residential property, regardless of who pays for the service. This practice is illegal under federal laws and regulations. This bill seeks to strengthen state law to further curtail this practice. Small businesses are the undisputed heart of the American economy. Local businesses, which offer the best resources and solutions for relieving the current housing crisis, are being shut out of the Real Estate Owned (REO) market. Instead of local businesses assisting homeowners and expediting the transfer of foreclosed properties to purchasers, they're literally on the outside with no way to AB 957 Page 6 get in. Excluding local businesses from competition for services, eliminates local job creation that stimulates local economies and violates anti-competition and anti-trust laws. ASSEMBLY FLOOR : AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield, Brownley, Buchanan, Caballero, Charles Calderon, Carter, Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon, Duvall, Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes, Fuller, Furutani, Gaines, Galgiani, Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill, Huber, Huffman, Jones, Knight, Krekorian, Lieu, Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello, Nielsen, John A. Perez, V. Manuel Perez, Portantino, Price, Ruskin, Salas, Saldana, Silva, Skinner, Smyth, Solorio, Audra Strickland, Swanson, Torlakson, Torres, Torrico, Tran, Villines, Yamada, Bass NO VOTE RECORDED: DeVore, Garrick, Jeffries RJG:do 8/18/09 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****