BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  April 22, 2015


                           ASSEMBLY COMMITTEE ON INSURANCE


                                   Tom Daly, Chair


          AB 704  
          (Cooley) - As Amended April 6, 2015


          SUBJECT:  Escrow services:  underwritten title companies


          SUMMARY:  Adopts escrow rules governing underwritten title  
          companies (UTCs) consistent with rules that currently govern  
          independent escrow companies.  Specifically, this bill:  


          1)Repeals, as of July 1, 2016, a requirement that a UTC make a  
            deposit with the Insurance Commissioner (commissioner) of  
            $7500 for each county in which it does escrow business. 


          2)Provides, as of July 1, 2016, that each UTC shall maintain a  
            bond satisfactory in form to the commissioner in the amount of  
            $25,000, $35,000, or $50,000, as determined by a formula that  
            takes into consideration the volume of escrow business  
            conducted by the UTC.


          3)Provides that a UTC may use a cash deposit or an irrevocable  
            letter of credit acceptable in form to the commissioner in  
            lieu of the bond.


          4)Clarifies the definition of "escrow" to ensure that escrows  








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            involving personal property (typically, but not always,  
            business inventory) may be performed by UTCs.


          5)Defines "business location" as the place where a UTC conducts  
            escrow business.


          6)Specifies that a UTC can do escrow business at its escrow  
            business locations with respect to property located in  
            counties where it is licensed to do title business.


          EXISTING LAW:  


          1)Provides for the regulation of title insurance and title  
            insurers by the commissioner.


          2)Authorizes UTCs to perform a range of activities with respect  
            to real estate and personal property transactions, including  
            acting as the agent of a title insurer for purposes of  
            underwriting and issuing policies of title insurance, and  
            handling the escrow in a real estate transaction.


          3)Establishes various regulatory requirements on UTCs, including  
            statutory net worth requirement and escrow deposit  
            requirements.


          4)Requires a UTC to post a deposit with the commissioner of  
            $7500 for each county in which it is licensed to conduct title  
            business.


          5)Provides for the regulation of independent escrow companies,  
            which are licensed to handle real estate and other escrow  








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            transactions, by the Department of Business Oversight (DBO).


          6)Authorizes a licensed real estate broker to handle real estate  
            escrows.


          7)Provides that an independent escrow company must maintain a  
            bond satisfactory in form to the DBO  in the amount of  
            $25,000, $35,000, or $50,000, as determined by a formula that  
            takes into consideration the volume of escrow business  
            conducted by the independent escrow company. 


          FISCAL EFFECT:  Undetermined


          COMMENTS:  


          1)Purpose.  According to the author, this bill is designed to  
            level the playing field for companies authorized to perform  
            escrow services that are licensed by the DBO (independent  
            escrow companies) and the companies that are authorized to  
            perform escrow services that are licensed by the commissioner  
            (UTCs).  The author argues that UTCs face unnecessarily  
            burdensome regulatory requirements in comparison to the  
            independent escrow companies regulated by the DBO, and the  
            escrow rules that govern UTCs should be made consistent with  
            those rules.


          2)Background.  There are 3 different types of licensees  
            authorized to perform escrow services in California: real  
            estate brokers, independent escrow companies, and UTCs -- each  
            with a separate regulator.  Real estate brokers, while  
            authorized, rarely perform this function.  Thus, the DBO  
            licensed escrow companies compete primarily with the  
            Department of Insurance (DOI) licensed UTCs.  








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          A UTC performs two distinct functions in the typical real estate  
            transaction where it is performing escrow services: it  
            underwrites (title search and report) the title insurance  
            policy, and it handles the escrow.  The UTC also acts as the  
            title insurer's agent to issue the title policy.  An  
            independent escrow company performs only one function - the  
            escrow portion of the transaction.  One element of that  
            function is to ensure that a title company provides a title  
            insurance policy, but the independent escrow company is not  
            licensed to either underwrite or issue a title insurance  
            policy.

          There is a debate within the title/escrow industry about which  
            format is best, and for historically unclear reasons, some  
            regions of the state tend to use independent escrow companies  
            and a separate title company, and other regions of the state  
            tend to use the title company for both functions.  Regardless  
            of which approach is used, it is clear that the title  
            functions/services and the escrow functions/services are  
            distinct.  The purpose of the bill is to align the regulatory  
            structures for the two primary type of escrow services  
            companies, but to leave the regulatory structure for title  
            services and insurance unchanged.  The DOI agrees that the  
            bill does not impact the title insurance regulatory structure.
          3)"Business location".  The bill defines "business location" for  
            escrow purposes.  This is intended to clarify a tension  
            between laws governing escrow, and laws governing title  
            services.  Title services are licensed on a county by county  
            basis.  A title company can only conduct title business with  
            respect to property located in a county where it is licensed.   
            While most title insurers and many UTCs are licensed in all  
            counties, a number of UTCs are not.  Nonetheless, there are  
            many circumstances where a consumer may wish to have a  
            title/escrow firm handle an escrow for an out of county  
            property, and in fact, DBO-licensed escrow companies can do  
            this.  For example, UTC is licensed in County A, but not  








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            County B.  Consumer is selling a home in County A, and buying  
            in County B.  Consumer wishes to coordinate the escrow of both  
            transactions with the same escrow company.  UTC would need to  
            obtain title services from a title company licensed in County  
            B, but could, pursuant to current practices, conduct both  
            escrows at the business location in County A.  The bill's  
            language is intended to codify this practice.  However, the  
            language may need clarification to ensure it is specific  
            enough to authorize situations such as the scenario just  
            described.  The following amendment would cure the ambiguity:  
            page 4, line 27, and page 10, line 5, add the phrase  
            "regardless of the location of the real or personal property  
            involved in the transaction,".



          In addition, the DOI has concerns about the language that  
            clarifies this issue.  DOI does not object to allowing a UTC  
            to handle an escrow in a county other than the county where  
            the property is.  However, it believes that the language in  
            the bill creates a licensing problem that will make effective  
            regulation of the escrow function more complicated.  DOI has  
            proposed language to the proponents of the bill, but at this  
            point, there has been no agreement on compromise language.
          4)Deposit vs. bond.  The bill calls for a bond to replace the  
            existing deposit system, and establishes the process for each  
            UTC's deposit funds to be returned once an appropriate bond  
            (or the letter of credit or cash deposit option) is  
            established.  This is probably the most contentious aspect of  
            the bill.  While DOI believes existing deposit rules do not  
            work well, it disagrees with the way the bill functionally  
            reduces the amount of potential funds available for consumer  
            recovery, and has concerns about the procedure for liquidating  
            existing deposits.



          Proponents raise several arguments in favor of the proposal.   
            First, they argue that bonding is working for DBO licensees,  








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            so it should be sufficient for UTCs as well.  DBO has not  
            contradicted this assertion, but DOI remains uncertain that  
            the DBO bonding structure is adequate.  Second, they point out  
            that existing deposits have never been liquidated to fund  
            escrow losses.  DOI responds that there is significant  
            difficulty in accessing deposits, and therefore consumers have  
            not pursued this option.  DOI suggests that if access were not  
            so difficult, it might not be the case that deposits have not  
            been used to remediate consumer losses.  In this regard,  
            proponents point out that the UTC is an agent of the title  
            insurer, which has substantial assets, and the insurer has  
            always stepped in to cover losses that have occurred.  DOI  
            argues that title insurers have paid, but increasingly  
            objected to their obligation to cover escrow, as opposed to  
            title, obligations of UTCs.  Finally, proponents assert that  
            the commissioner is required to go to court to access the  
            deposit, whereas the bond would be readily available.  DOI  
            does not dispute that the deposits are not an efficient  
            security mechanism, but assert that fact is not a reasonable  
            basis to reduce the scope of potential protection from several  
            hundred thousand dollars (which varies among UTCs depending on  
            how many counties they operate in) to $50,000 or less.  DOI  
            has proposed a $500,000 bond requirement, which is more in  
            line with a 58 county UTC, which would have a $435,000 deposit  
            requirement. 
          5)Release of current deposits.  The bill is intended to govern  
            the return of deposit funds once a UTC has the bond, or its  
            alternatives, in place.  Under current law, the deposit must  
            remain in place for 4 years after the UTC closes its final  
            escrow.  The bill provides for a procedure to return current  
            deposits to the UTC once a UTC has implemented the bill's  
            bonding requirements. The DOI believes that the procedure is  
            cumbersome and uncertain, and will lead to inevitable disputes  
            and regulatory disagreements.  DOI has proposed language to  
            address these concerns, but agreement has not been reached on  
            this issue.


          6)Bonding formula.  The bill establishes a formula to calculate  








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            which of the tiered level of bond a UTC must undertake.  The  
            formula is based on escrow volume, and must be calculated  
            annually.  DOI believes this annual calculation would be  
            burdensome on both UTCs and on the DOI.  Proponents  
            acknowledge that most UTCs will be at the $50,000 bond level.   
            However, agreement on a methodology for determining bond  
            amount has not occurred.  Proponents note that the bill is  
            patterned after the law governing DBO escrow companies.   
            Regardless, a formula that is burdensome on both the  
            regulated, and the regulator, may not be in either's best  
            interest even if there is precedent.



          REGISTERED SUPPORT / OPPOSITION:




          Support


          California Land Title Association


          Fidelity National Title Group


          First American Title Insurance Company




          Opposition


          Department of Insurance










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          Analysis Prepared by:Mark Rakich / INS. / (916) 319-2086