The Florida Bar

Florida Bar Journal

  1. Home
  2. News & Events
  3. Florida Bar Journal
The Florida Bar Journal
November, 2017 Volume 91, No. 9
The New Closing Protection Resets the Understanding Between Lenders and Title Insurers and Corrects Unhealthy Nationwide Trends in the Caselaw

by Marty Solomon

Page 64


A significant change to the closing protection letter (CPL) recently went into effect. On May 20, 2016, Florida’s Office of Insurance Regulation approved the new December 1, 2015 CPL with Florida modifications. A similar CPL will soon appear in most states.1 In Florida, the form’s language will be mandatory by regulation. The new CPL both streamlines the language of the previous CPL and corrects many of the problems created by caselaw developments, bringing the CPL into line with longstanding industry understandings of its purpose and scope. The laudable aim of this new form is more clarity, less misunderstanding, and, therefore, a better relationship among the contracting parties. This article summarizes the changes to the form.

Background
The form of the Florida CPL had been set by regulation at Florida Admin. Code R. 69O-186.010. Now, the form is submitted by the underwriter and approved by the regulator.2 Industry understanding is that the CPL was primarily an instrument to assure lenders that they could entrust settlement funds to attorneys and closing agents who also acted as title agents for purposes of issuing the title insurance policies of an underwriter. The CPL did not make the attorney or closing agent an agent of the underwriter for purposes of closing, but instead offered a strictly limited indemnity contract.

Pursuant to the CPL, title insurers agreed to indemnify lenders for actual loss caused by the failure to follow certain written closing instructions, or the loss of settlement funds caused by “fraud or dishonesty” in “handling [the lender’s] funds or documents.” The idea being that, in exchange for using a title insurer’s independent and typically relatively small agent, a lender would be indemnified by the title insurer for certain forms of wrongdoing by the agent as it related to the title to the land and handling the lender’s loan funds. The CPL was not intended to function as mortgage insurance or substitute for an agent’s fidelity bonds or errors and omissions insurance policies.

Caselaw Development in the Wake of the Mortgage Foreclosure Crisis
Before 2007, CPL claims were relatively rare, with only approximately four significant written opinions that dealt with CPL claims. When the real estate bubble burst in 2007, however, CPL litigation exploded. Since then, more than 64 significant written opinions around the country have addressed CPL issues.

Desperate to recoup massive losses on fraudulent mortgages, lenders and the FDIC (acting as receiver for failed lenders) turned to the CPL as a source of protection. They pursued increasingly aggressive theories of liability that stretched the coverage and scope of the CPL well beyond industry understanding. And, unfortunately, courts, in apparent deference to the FDIC, gave a much broader and more liberal reading to the CPL than the industry had intended.3

This trend was most hard-fought in Florida, Michigan, California, and Connecticut, but spread across the country, making bad law wherever it went.

Revisions to the CPL Form
In the wake of these developments, the American Land Title Association (ALTA) set out to revise the CPL form so lenders and the title insurance industry would have a clearer understanding as to what the CPL was intended to cover, and a fairer distribution of certain risks between them. These revisions addressed several key issues.

Standing
The header of the CPL form identifies the lender to whom the CPL offers protection. Often, old CPLs would include “and successors and assigns” language in this header. Industry understanding was that the CPL would travel with the title policy and the mortgage as they were assigned. Some caselaw followed this understanding.4

Yet, during the real estate downturn, the FDIC often took over for failed lenders, quickly sold their mortgage portfolios to new lenders, but purported to keep the CPL claims for themselves. This split the CPL from the policy. The new lenders often successfully foreclosed the mortgage because there was no title defect, yet the FDIC would pursue the title insurer under the CPL for lost profits or loss of “book value,” alleging that the loan should never have been closed in the first place. In addition, so-called “scratch-and-dent” lenders would purchase loans at discount prices and pursue CPL claims to turn a bad mortgage into a windfall. Unfortunately, many courts sided with lenders and the FDIC on this theory.5

The revised CPL addresses this issue with two new provisions. Condition and Exclusion 2(d)(A) now provides that “you [the lender] means…the assignee of the insured mortgage, provided such assignment was for value and the assignee was, at the time of the assignment, without knowledge of the facts that reveal a claim under this letter….” And Condition and Exclusion 8 now provides that “the company will be liable only to the owner of the [i]ndebtedness at the time that payment is made.”

These revisions will assist in preventing splitting of claims against title insurers and opportunistic scratch-and-dent lender claims.

Separately, the old CPL form offered coverage to lessees and purchasers in addition to lenders. This allowed purchasers of an owner’s policy to bring CPL claims.6 But, as an excellent textual analysis explained in Cauthorne v. American Home Mortgage Corp., 2008 WL 4316123 (E.D. Va. Sept. 15, 2008), this coverage did not extend to refinancing borrowers. The new CPL form retains, in Requirement 2(b), the language on which Cauthorne relied.

Valid Policy Issuance
The introductory paragraph of the old CPL form specified that a lender was protected only when “title insurance of [the company] is specified for your protection in connection with closings of real estate transactions in which you are to be the lessee or purchaser of an interest in land or a lender secured by a mortgage (including any other security instrument) of an interest in land….” Thus, if title insurance from the underwriter had not been validly bound, title underwriters correctly argued that CPL coverage was void. Some courts so held.7 Others did not, twisting industry practice and the CPL’s language to reach a different result.8

The new CPL form addresses this issue in Requirement 1, specifying that CPL protection is available only when “the company issues or is contractually obligated to issue a policy for your protection in connection with the real estate transaction.”

Claims Investigation and Discovery
By the time the foreclosure crisis hit its height, FDIC counsel, such as Mortgage Recovery Law Group, a frequent plaintiff’s firm made up of former IndyMac lawyers and investigators, made a habit of sending barely comprehensible pro forma CPL claim letters, then refusing to comply with the investigating title insurer’s requests for information or an examination under oath. Some courts backed them up on this practice, despite policy language and the implied covenant of good faith and fair dealing.9

The lender would then sue with no additional warning and go on to resist legitimate discovery designed to flesh out proper CPL defenses. Some courts enforced title insurers’ right to relevant discovery.10 Others did not.11

The new CPL form extensively addresses these problematic issues with helpful new provisions. Condition and Exclusion 13 now provides:

“Whenever requested by the company, you, at the company’s expense, shall:

(a) give the company all reasonable aid in

(i) securing evidence, obtaining witnesses, prosecuting or defending any action or proceeding, or effecting any settlement, and

(ii) any other lawful act that in the opinion of the company may be necessary to enable the company’s investigation and determination of its liability under this letter;

(b) deliver to the company any records, in whatever medium maintained, that pertain to the real estate transaction or any claim under this letter; and

(c) submit to an examination under oath by any authorized representative of the company with respect to any such records, the real estate transaction, any claim under this letter or any other matter reasonably deemed relevant by the company.”

Coverage
The old CPL form provided somewhat nebulous coverage, leading courts to gradually extend the type of conduct for which underwriters were required to indemnify. It recited coverage for:

“(1) failure of said issuing agent or approved attorney to comply with your written closing instructions to the extent that they relate to

(a) the status of the title to said interest in land or the validity, enforceability and priority of the lien of said mortgage on said interest in land, including the obtaining of documents and the disbursement of funds necessary to establish such status of title or lien, or

(b) the obtaining of any other document, specifically required by you, but not to the extent that said instructions require a determination of the validity, enforceability or effectiveness of such other document, or

(c) the collection and payment of funds due you, or

(2) fraud or dishonesty of said issuing agent or approved attorney in handling your funds or documents in connection with the closing.”

Industry understanding was that the limitations in paragraph 1(a) and the language in paragraph (2) specifying “your funds or documents” would generally limit CPL claims to defalcations of the lender’s funds, handling of lender’s funds (as opposed to, for example, funds due to the seller), and instructions and documents directly related to title issues. Industry understanding was also that “fraud or dishonesty” required an actual intent to deceive a lender, not negligence or “willful blindness,” as courts would later call it.

Some courts properly limited coverage in line with those expectations.12 Unfortunately, other courts stretched CPL coverage virtually out of recognition. For example, lenders argued that virtually any document the title agent touched in a transaction, including an appraisal or credit report, could be “dishonestly” handled in a bad transaction, despite the limitation in paragraph 1(b) that no assessment of a document’s validity or effectiveness could be required. Lenders also argued that any defect in the loan requiring repurchase from a secondary market buyer was covered.

Lenders argued that “your funds” meant even a seller’s proceeds, on the theory that no funds would ever have been transmitted at all if the lender had known the true facts. As lenders put it, title agents were the “police” in transactions, the lender’s “last clear chance” to avoid making a fraudulent loan. Increasingly, their closing instructions included paragraph after paragraph of aggressive anti-fraud instructions requiring written approval from the lender to proceed when even the slightest whiff of impropriety arose. But the lenders’ own business practices never kept up, and many refused to give written approvals; but loan officers would give apparently binding verbal approvals that were later said to be beyond their authority, leaving closers in an impossible position. Several courts sided with lenders on these arguments.13

The new CPL form contains several provisions designed to bring CPL coverage back in line with longstanding industry understanding. Its basic coverage provisions now read as follows:

“(a) [A]ny failure of the issuing agent or approved attorney to comply with your written closing instructions that relate to:

(i) (A) the disbursement of funds necessary to establish the status of the title to the land; or

(B) the validity, enforceability, or priority of the lien of the insured mortgage; or

(ii) obtaining any document, specifically required by you, but only to the extent that the failure to obtain the document adversely affects the status of the title to the land or the validity, enforceability, or priority of the lien of the insured mortgage on the title to the land; or

(b) fraud, theft, dishonesty, or misappropriation of the issuing agent or approved attorney in handling your funds or documents in connection with the closing, but only to the extent that the fraud, theft, dishonesty, or misappropriation adversely affects the status of the title to the land or to the validity, enforceability, or priority of the lien of the insured mortgage on the title to the land.”

In addition, Condition and Exclusion k now clarifies that the underwriter “shall have no liability” for loss caused by “investor or secondary market standards or requirements, including any failure of the issuing agent or approved attorney to comply with your closing instructions relating to such investor or secondary market standards or requirements.”

Causation and Lender Negligence or Knowledge
Industry understanding had long been that the CPL was not a substitute for due diligence in underwriting by lenders. CPLs were neither mortgage insurance, nor an indemnity against a lender’s own negligence. After all, most states’ public policy had long been that a contractual indemnitor does not indemnify the indemnitee against losses caused, even in part, by his or her own negligence, unless the contract language is clear and specific.14 Some courts appeared to apply this standard to CPL claims.15

Too many courts, however, ignored this rule and concluded that CPLs covered not just losses proximately caused by the title agent, but losses that arose even slightly out of the title agent’s conduct. Indeed, they concluded that no amount of lender negligence in loan underwriting was a defense to CPL liability, even if that conduct all but guaranteed a loss. This happened when the defense went to loss causation.16 And it happened when the defense went to contributory negligence.17

The new CPL form deals with this issue with several strong provisions. First, Requirement 4 limits indemnification to situations in which “your loss is solely caused by” the covered acts. Second, Condition and Exclusion 3(e) eliminates liability for losses “arising from any” (the exact causation language so broadly construed in the decisions above) “fraud, theft, misappropriation, or negligence by you or by your employee, agent, attorney, or broker.” Third, Condition 3(g) incorporates the policy exclusion for “matters created, suffered, assumed, agreed to, or known by you.”

Prompt Notice
At the height of the CPL claim explosion, lenders and the FDIC made claims on loans that had closed five, eight, or even 10 years before the claim. By that time, title agencies had closed, documents had vanished, and closing agents had died, moved, or forgotten everything about a transaction. This severely prejudiced the underwriter’s defense. But lenders cared not — as they put it, the CPL was a “life of the loan letter.”

Some states’ CPL forms, such as California’s, included an absolute limit on the time after closing in which a claim could be made, and these were enforceable.18 Some states, such as Michigan, required only “prompt” notice, together with a lack of prejudice against the insurer caused by delayed notice.19 And some states, like Florida, South Carolina, and Connecticut, included both 1) a “prompt” notice and prejudice provision, and 2) a bright-line, 90-days-from-knowledge-of-claim notice provision.20 Yet the presence of both these provisions sometimes lead to confused analysis that mixed the two, or at least muddled the issue, for judges reading those opinions.21 Yet, despite the confusion, notice became one of the few issues on which underwriters saw success in the post-boom CPL litigation wave.22

The new CPL form retains and clarifies the “prompt notice” with prejudice language and, for the first time in Florida, introduces a two-years-from-closing-claim bar that explicitly does not require prejudice. The conditions and exclusions now provide:

“11. In no event shall the company be liable for a loss if the written notice of a claim is not received by the company within two years from the date of the transmittal of funds. The condition that the company must be provided with written notice under this [§]11 shall not be excused by a lack of prejudice to the company.

12. You must promptly send written notice of a claim under this letter to the company at its principal office at [ADDRESS]. If the company is prejudiced by your failure to provide prompt notice, the company’s liability to you under this letter shall be reduced to the extent of the prejudice.”

These provisions should helpfully clarify the requirements for notice. They will also improve the title insurers’ ability to predict appropriate reserves and the regulator’s ability to set appropriate rates by limiting the potentially long tail of CPL claims.

Separately, some underwriters received claims on CPLs that had been fraudulently issued by cancelled agents. Most underwriters had some form of system for notifying lenders when an agent or a CPL was cancelled. But lenders often had faulty systems for stopping a transaction in response to such a notice. The new CPL form contains a clear provision for termination of the CPL if “the company provides written notice of termination of this letter to the addressee at the address set forth above.”

Damages
Some CPL forms provided only for recovery of lost settlement funds, and those provisions were enforceable.23 Most states’ forms, including the old Florida CPL form, however, provided for indemnification of “actual loss” that was “arising from” a covered matter. They also incorporated an upper limit on damages of the policy amount. This language left room for interpretation, though, and much confusion arose in the caselaw as to what could be recovered and how it should be measured.24

The new form clarifies and helpfully limits the underwriter’s indemnification exposure, first by defining the indemnification offered as being only for “actual loss of funds” in the introductory paragraph and by adding the following limiting provisions:

“7. The company’s liability for loss under this letter shall not exceed the least of:

(a) the amount of your funds;

(b) the company’s liability under the commitment or policy at the time written notice of a claim is made under this letter;

(c) the value of the lien of the insured mortgage;

(d) the value of the title to the land insured or to be insured under the Policy at the time written notice of a claim is made under this letter; or

(e) the amount stated in [§]3 of the requirements.”

Limited Scope of Agency and No Tort Liability
Lenders often asserted claims in tort, such as negligence, negligent supervision, or respondeat superior liability, on theories of actual or apparent agency. Some courts understood that, far from showing the title agent was an all-purpose agent of the underwriter, the CPL actually showed the opposite, otherwise the letter would serve no purpose.25 Some courts in CPL cases respected this concept, eliminating tort claims under economic loss rules or gist-of-the-action doctrines. Others did not.26

As a result, consistent with similar changes to the new ALTA title insurance commitment form, the new CPL form clarifies the issue. Conditions and Exclusions 10 now provides:

“The issuing agent is the company’s agent only for the limited purpose of issuing policies. Neither the issuing agent nor the approved attorney is the company’s agent for purpose of providing closing or settlement services. The company’s liability for your loss arising from closing or settlement services is strictly limited to the contractual protection expressly provided in this letter. Other than an expressly provided in this letter, the company shall have no liability for loss resulting from the fraud, theft, dishonesty, misappropriation, or negligence of any party to the real estate transaction, the lack of creditworthiness of any borrower connected with the real estate transaction, or the failure of any collateral to adequately secure a loan connected with the real estate transaction.”

Conclusion
Similar to the old saw that “bad facts make bad law,” in the wake of the real estate crisis, title insurers found that “a bad economy makes bad law” with respect to CPL claims. The new CPL form should cure most of that bad law, restoring an appropriate balance between the lender’s desire to have trustworthy title agents and the limited nature of the title insurance business itself.


1 See American Land Title Association, https://www.alta.org/policy-forms/download.cfm?formID=464&type=word for the latest national revisions.

2 See Fla. Stat. §627.777.

3 JPMorgan Chase Bank v. First American Title Ins. Co., 750 F.3d 573 (6th Cir. 2014); FDIC-R Bankunited v. Property Transfer Services, Inc., 2013 WL 5535561 (S.D. Fla. Oct. 7, 2013); Bank of America v. First American Title Ins. Co., 878 N.W.2d 816 (Mich. 2016); Bank of America v. Fidelity Nat’l Title Ins. Co., 892 N.W.2d 467 (Mich. App. 2016).

4 Security Service FCU v. First American Mortgage Funding, LLC, 771 F.3d 1242 (10th Cir. 2014); FDIC-R BankUnited v. Floridian Title Group, Inc., 2013 WL 5346435 (S.D. Fla. Sept. 23, 2013); U.S. Bank Nat’l Assoc. v. Lawyers Title Ins. Corp., 2013 WL 3958304 (Conn. Sup. July 11, 2013).

5 FDIC v. First American Title Ins. Co., 611 Fed. Appx. 522 (11th Cir. 2015); JPMorgan Chase Bank v. First American Title Ins. Co., 750 F.3d 573 (6th Cir. 2014); JPMorgan Chase Bank v. First American Title Ins. Co., 795 F. Supp. 2d 624 (E.D. Mich. June 10, 2011); Bank of America v. Fidelity Nat’l Title Ins. Co., 892 N.W.2d 467 (Mich. App. 2016).

6 Brinker v. Chicago Title Ins. Co., 2010 WL 5865507 (M.D. Fla. Nov. 30, 2010).

7 Capital Mortgage Assoc., LLC v. Hulton, 2009 WL 567057 (Conn. Sup. Feb. 13, 2009).

8 Fifth Third Mortgage-MI, LLC v. Hance, 2011 WL 4501573 (Mich. App. Sept. 29, 2011); Mortgage Network, Inc. v. Ameribanc Mortgage Lending, LLC, 895 N.2d 917 (Oh. App. 10th 2008).

9 FDIC-R Indymac v. Fidelity Nat’l Title Ins. Co., 2015 WL 12765417 (S.D. Fla. Jan. 8, 2015).

10 FDIC-R WaMu v. Stewart Title Guaranty Co., 2014 WL 12616125 (M.D. Fla., Jan. 10, 2014); FDIC-R WaMu v. Old Republic Nat’l Title Ins. Co., 2013 WL 12096453 (S.D. Fla. Nov. 13, 2013).

11 FDIC-R WaMu v. Old Republic Nat’l Title Ins. Co., 2014 WL 12519758 (S.D. Fla. April 9, 2014); FDIC-R WaMu v. Stewart Title Guaranty Co., 2013 WL 12155010 (M.D. Fla. June 25, 2013); USBank Nat’l Assoc. v. First American Title Ins. Co., 2011 WL 13137959 (M.D. Fla. Sept. 27, 2011); USBank Nat’l Assoc. v. First American Title Ins. Co., 2011 WL 13137958 (M.D. Fla. Aug. 23, 2011); USBank Nat’l Assoc. v. First American Title Ins. Co., 2011 WL 113137957 (MD. Fla. June 16, 2011).

12 Nutter & Co. v. Old Republic Nat’l Title Ins. Co., 2016 WL 5792686 (N.D. Ga. Oct. 4, 2016); Brinker v. Chicago Title Ins. Co., 2012 WL 1081211 (M.D. Fla. Feb. 9, 2012); Federal Agricultural Mortgage Corp. v. It’s A Jungle Out There, Inc., 2005 WL 3325051 (N.D. Cal. Dec. 7, 2005); Lawyers Title Ins. Corp. v. New Freedom Mortgage Corp., 655 S.E.2d 269 (Ga. App. 2007); Flagstar Bank v. Lawyers Title Co., 2014 WL 1725746 (Cal. App. 2d May 2, 2014); New Freedom Mortgage Corp. v. Globe Mortgage Corp., 761 N.W.2d 832 (Mich. App. 2008), overruled in pertinent part by Bank of America v. First American Title Ins. Co., 878 N.W.2d 816 (Mich. 2016); Healthcare Employees Fed. Credit Union v. GMAC Mortgage Corp., 2014 WL 8264067 (N.J. App. March 24, 2015).

13 FDIC v. First American Title Ins. Co., 611 Fed. Appx. 522 (11th Cir. 2015); FDIC-R Bankunited v. Property Transfer Services, Inc., 2013 WL 5535561 (S.D. Fla. Oct. 7, 2013); Fifth Third Mortgage Co. v. Kaufman, 2013 WL 474506 (N.D. Ill. Feb. 7, 2013); Aurora Loan Svcs., LLC v. Hirsch, 2014 WL 7883687 (Conn. Sup. Jan. 28, 2014).

14 Charles Poe Masonry, Inc. v. Spring Lock Scaffolding Rental Equipment Co., 374 So. 2d 487 (Fla. 1979).

15 In re Taneja, 743 F.3d 423 (4th Cir. 2014); In re Kaufman, 2016 WL 2851554 (N.D. Ill. May 14, 2016); Taneja v. Old Republic Nat’l Title Ins. Co., 2010 WL 4882826 (E.D. Va. Nov. 24, 2010); First American Title Ins. Co. v. Vision Mortgage Corp., Inc., 689 A.2d 154 (N.J. App. 1997).

16 FDIC v. First American Title Ins. Co., 611 Fed. Appx. 522 (11th Cir. 2015); JPMorgan Chase Bank v. First American Title Ins. Co., 750 F.3d 573 (6th Cir. 2014); FDIC-R Founders Bank v. Chicago Title Ins. Co., 2016 WL 7339150 (N.D. Ill. Dec. 19, 2016); FDIC-R Bankunited v. Property Transfer Services, Inc., 2013 WL 5535561 (S.D. Fla. Oct. 7, 2013); Lawyers Title Ins. Corp. v. New Freedom Mortgage Corp., 645 S.E.2d 536 (Ga. App. 2007).

17 FDIC-R WaMu v. First American Title Ins. Co., 2015 WL 418122 (E.D. Mich. Jan. 30, 2015); JPMorgan Chase Bank v. First American Title Ins. Co., 795 F. Supp. 2d 624 (E.D. Mich. June 10, 2011); Lawyers Title Ins. Corp. v. New Freedom Mortgage Corp., 655 S.E.2d 269 (Ga. App. 2007); Bank of America v. Fidelity Nat’l Title Ins. Co., 892 N.W.2d 467 (Mich. App. 2016).

18 Countrywide Home Loans, Inc. v. First American Title Ins. Co., 2012 WL 516824 (Cal. App. 1st Feb. 16, 2012).

19 Bank of America v. Fidelity Nat’l Title Ins. Co., 892 N.W.2d 467 (Mich. App. 2016).

20 FDIC-R Indymac v. Chicago Title Ins. Co., 137 F. Supp. 3d (S.D. Fla. 2015); Regions Bank v. Stewart Title Guaranty Co., 2015 WL 433486 (D.S.C. Feb. 3, 2015); JPMorgan Chase Bank v. Old Republic Nat’l Title Ins. Co., 2015 WL 670871 (Conn. Sup. Jan. 22, 2015).

21 U.S. Bank Nat’l Assoc. v. First American Title Ins. Co., 2012 WL 1080876 (M.D. Fla. March 30, 2012).

22 FDIC-R Indymac v. Chicago Title Ins. Co., 137 F. Supp. 3d (S.D. Fla. 2015); FDIC-R WaMu v. Attorneys’ Title Ins. Fund, 2014 WL 4384270 (S.D. Fla. Sept. 3, 2014); Regions Bank v. Stewart Title Guaranty Co., 2015 WL 433486 (D.S.C. Feb. 3, 2015); Countrywide Home Loans, Inc. v. First American Title Ins. Co., 2012 WL 516824 (Cal. App. 1st Feb. 16, 2012).

23 Herget Nat’l Bank of Pekin v. U.S. Life Title Ins. Co. of New York, 809 F.2d 413 (7th Cir. 1987); First Financial Savings & Loan Assoc. v. Title Ins. Co. of Minnesota, 557 F. Supp. 654 (N.D. Ga. 1982).
24 JPMorgan Chase Bank v. First American Title Ins. Co., 750 F.3d 573 (6th Cir. 2014); FDIC-R Founders Bank v. Chicago Title Ins. Co., 2015 WL 5276346 (N.D. Ill. Sept. 9, 2015); FDIC-R WaMu v. Attorneys’ Title Ins. Fund, 2015 WL 11784950 (S.D. Fla. March 11, 2015); FDIC-R Bankunited v. Property Transfer Services, Inc., 2013 WL 5535561 (S.D. Fla. Oct. 7, 2013); U.S. Bank Nat’l Assoc. v. First American Title Ins. Co., 2012 WL 1080876 (M.D. Fla. March 30, 2012); Aurora Loan Svcs., LLC v. Hirsch, 2014 WL 7883687 (Conn. Sup. Jan. 28, 2014); Bank of America v. First American Title Ins. Co., 878 N.W.2d 816 (Mich. 2016), overruling New Freedom Mortgage Corp. v. Globe Mortgage Corp., 761 N.W.2d 832 (Mich. App. 2008).

25 Proctor v. Metropolitan Money Store Corp., 579 F. Supp. 2d 724 (D. Md. 2008).

26 Bancorp Bank v. Lawyers Title Ins. Corp., 2014 WL 3325861 (E.D. Pa. July 8, 2014); U.S. Bank Nat’l Assoc. v. First American Title Ins. Co., 2011 WL 121137960 (M.D. Fla. Nov. 16, 2011); U.S. Bank Nat’l Assoc. v. First American Title Ins. Co., 2011 WL 2119335 (M.D. Fla. May 27, 2011); but cf. FDIC-R Founders Bank v. Chicago Title Ins. Co., 2016 WL 7339150 (N.D. Ill. Dec. 19, 2016).


Marty Solomon is a shareholder with Carlton Fields in its Tampa office. He is the co-practice group leader of the real property litigation practice group. Solomon has represented title insurance underwriters in coverage matters, claims, defalcations, and class actions nationwide.

This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Andrew M. O’Malley, chair, and Douglas G. Christy and Jeff Goethe, editors.

[Revised: 10-26-2017]