April 15, 2010

Urge Illinois Legislators to Oppose HB 5409

Mike Brandt photo
Current Version Unfairly Burdens Real Estate Title Insurers
Dear Fellow Attorney,
The Illinois Legislature is currently considering a bill of significant interest to ATG. House Bill 5409, which passed the Illinois House on March 26, 2010, is currently before the Illinois Senate. ATG is issuing this Call to Action because the bill, as passed by the House, imposes significant mandates on the title insurance industry without fairly and adequately compensating the title industry for the mandated risks.
HB 5409, in its present form, requires title insurance underwriters to protect sellers, buyers, and lenders against negligence and fraud perpetrated by title insurance agents in the closing of real estate transactions. The mandated closing protection would be no less than that provided by closing protection letters in the form and format currently promulgated by the American Land Title Association. While closing protection letters are currently issued by all title underwriters, the decision to issue is solely within the discretion of the underwriter. The bill would strip the underwriters of that discretion and mandate closing protection for all covered transactions. Even though ATG supports HB 5409's concept of providing greater protection for consumers, ATG opposes the bill in its present form due to the lack of a provision to set a minimum fee for the mandated protection. Without a mandatory fee, the bill will:
  • Unfairly burden the title insurance industry with an unfunded mandate;

  • Subject the title industry to increased losses without a source of revenue to build reserves for solvency and stability;

  • Lead to violations of the Real Estate Settlement Procedures Act (RESPA) and the Illinois Title Insurance Act as a result of market pressures to reduce or eliminate any fee for the protection afforded by closing protection letters; and

  • Create and foster a settlement service marketplace detrimental to title agents, potentially forcing many title insurance agents out of business with resulting job losses and loss of closing and title insurance services for consumers.

The addition of a statutory, mandatory service charge or fee for closing protection is reasonable because closing protection would be made mandatory by the bill. It is the position of ATG that mandatory fees or service charges are logically consistent with mandatory coverage.

Please contact your legislative representatives in the Illinois House, and especially in the Illinois Senate, to advise them of your opposition to HB 5409 in its present form.
Michael K. Brandt

Vice President - Claims and Legislation

Attorneys' Title Guaranty Fund, Inc.
2012 Windsor Place
Champaign, IL 61820