BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  July 6, 2015


                      ASSEMBLY COMMITTEE ON BANKING AND FINANCE


                               Matthew Dababneh, Chair


          SB  
          736 (Vidak) - As Amended May 5, 2015


          SENATE VOTE:  40-0


          SUBJECT:  Escrow agents


          SUMMARY:  States that, whenever possible, the Commissioner of  
          the Department of Business Oversight (commissioner) shall  
          utilize the services of private individuals with prior escrow  
          experience to act as conservator, receiver or liquidator in  
          cases in which the Commissioner must take possession of the  
          property and business of an escrow agent due to insolvent  
          conditions of escrow law violations.  Specifically, this bill: 


          1)Allows the Commissioner to redirect up to $125,000 in penalty  
            revenue to compensate conservators, liquidators or receivers.


          2)Provides authority for the Commissioner to utilize all or a  
            portion of an escrow agents surety bond and any assets  
            remaining following conservation, liquidation or receivership  
            of that escrow agent to compensate the agent's conservator,  
            liquidator or receiver. 










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          3)Makes various technical changes.


          EXISTING LAW:   



         1)Requires each escrow agent to maintain a surety bond equal to  
            $25,000, $35,000, or $50,000, depending on the size of its  
            prior year's average annual trust fund obligations (Financial  
            Code Section 17202).


         2)Authorizes the commissioner to take possession of the property  
            and business of an escrow agent, as specified, when it appears  
            to the commissioner that an escrow agent is in an insolvent  
            condition; is conducting escrow business in an unsafe or  
            unauthorized manner; has violated its charter or any law of  
            the State of California; refuses to submit its books, papers  
            and affairs for inspection by an examiner; neglects or refuses  
            to observe any order of the commissioner made pursuant to the  
            Escrow Law or its regulations, as specified; or any officer,  
            director, stockholder, trustee, or attorney of an escrow agent  
            has embezzled, sequestered, or willfully diverted the assets  
            or trust funds of such escrow agent, has permitted its  
            tangible net worth to be lower than the minimum required by  
            law, or has failed to comply with the bonding requirements of  
            the Escrow Law (Financial Code Section 17621).

         3)Establishes the Escrow Agents' Fidelity Corporation (EAFC;  
            Fidelity Corporation; Financial Code Section 17300),  
            establishes the purpose of EAFC as indemnifying its members  
            against loss, as specified (Financial Code Section 17310), and  
            requires each licensed escrow agent to participate as a member  
            in EAFC (Financial Code Section 17312).  Requires EAFC to  
            provide fidelity coverage to its members based on their  
            monthly average escrow liability per licensed location.  The  
            minimum coverage that must be provided by EAFC for each  
            licensed location is $1,000,000, and the maximum coverage for  








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            each licensed location is $5,000,000 (Financial Code Section  
            17314).

         4)Provides that the General Fund consists of money received into  
            the Treasury and not required by law to be credited to any  
            other fund (Government Code Section 16300).  Because of this  
            rule, penalty revenue collected by the Department of Business  
            Oversight (DBO) and other state departments and agencies  
            reverts to the General Fund, if not otherwise redirected to a  
            specific use.  

          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, redirection of penalty revenue up to $125,000  
          annually.





          COMMENTS:  


          Existing law specifies the procedures required to respond to the  
          failure of an escrow agent in order to prevent the loss of  
          escrow trust funds.  These authorities allow: 


          1)DBO to wind-down and liquidate a failed escrow company.


          2)DBO to petition a court to place a filed escrow company into  
            receivership.


          3)DBO to appoint a conservator, liquidator, or receiver.


          In addition to the authorities mentioned above, the Escrow Law  
          requires that every licensed company must obtain a surety bond  








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          to ensure that DBO and its representatives are compensated in  
          the event the company is placed into conservatorship or  
          receivership.  Finally, every company licensed under the Escrow  
          Law must obtain a fidelity bond that provides insurance against  
          theft of trust funds.


          SB 736 is a response to a problem that was brought to the  
          Legislature's attention during the fall of 2014, when a real  
          estate broker contacted several legislative offices, expressing  
          great dissatisfaction with the way in which DBO and EAFC had  
          handled a matter involving two of his former real estate  
          clients.  The real estate broker's clients were an older couple  
          that placed their home on the market in October of 2010 and  
          entered into a sales agreement that would have netted them  
          $154,000 in profit - money they planned to use in their  
          retirement.  Unbeknownst to the broker or his clients, the  
          company selected to handle the real estate escrow by the  
          purchaser of his clients' home was about to fail, and the owners  
          of that company were about to flee the country with an unknown  
          amount of client money.  The first indication that the clients  
          had that anything was amiss was when the check for $154,000 that  
          they had received from First Southwestern Escrow (FSE) bounced  
          due to insufficient funds in the escrow company's account.  



          Unfortunately, EAFC rejected the claim claiming that the  
          conservator appointed by DBO failed to submit the proof of loss  
          claim within the statutorily prescribed deadline.  DBO prepared  
          to appeal the rejection, believing that its submission was  
          timely, but ultimately opted to settle with EAFC in lieu of  
          challenging the rejected claim before an administrative law  
          judge.  The settlement netted those with claims against the  
          roughly $700,000 in trust funds with which FSE's owners  
          absconded, $0.41 on the dollar.  

          After selling their home in October of 2010, the real estate  
          broker's clients received their 41% payout in October of 2014.    








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          Although a criminal case alleging 11 felony counts against FSE's  
          principals was opened in the matter by the Alameda County Real  
          Estate Fraud Unit within the Alameda County District Attorney's  
          Office, prosecution of FSE's owners will be impossible, unless  
          those individuals can be compelled to return to the United  
          States to face the charges against them.  
          Private conservators/liquidators/receivers


          Private conservators/liquidators/receivers do not have to juggle  
          multiple jobs when serving in that capacity (DBO employees  
          appointed as conservator/liquidator/receiver have to continue to  
          do their regular DBO jobs as escrow examiners while also acting  
          as conservators/liquidators/receivers); private  
          conservators/liquidators/receivers may have specialized  
          expertise in winding down failed entities; and money paid out by  
          EAFC to private conservators/liquidators/receivers can be paid  
          out to claimants far faster than it can if a DBO employee is  
          appointed as conservator/liquidator/receiver (a function of  
          State Administrative Manual rules which apply to the payment of  
          money by state departments and agencies to private individuals).  
           


          On the basis of information provided by DBO, there were 20  
          instances during the past 10 years in which an escrow agent was  
          conserved, liquidated, or placed into receivership.  Private  
          individuals handled 15 of those cases; DBO employees handled  
          five.  By increasing the amount that can be paid to private  
          conservators/liquidators/receivers may lead to an increase in  
          the use of private parties carrying out these duties rather than  
          DBO employees.


          The items contained within SB 736 would add efficiency to the  
          process of handling failed escrow companies, but it is unclear  
          whether these changes would have changed the outcome in the FSE  
          case.









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          Prior Legislation


          AB 1679 (Harkey, 2014) would have eliminated the commissioner's  
          ability to rule on an appeal of an EAFC claim denial filed by a  
          successor in interest following a conservation or liquidation  
          proceeding involving a failed escrow agent, when a DBO employee  
          acted as that successor in interest.  


          REGISTERED SUPPORT / OPPOSITION:




          Support


          None on file.




          Opposition


          None on file.




          Analysis Prepared by:Mark Farouk / B. & F. / (916)  
          319-3081













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