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FinCEN requires title insurance companies to disclose individuals’ identities
On October 15, FinCEN renewed its Geographic Targeting Orders (GTOs) requiring U.S. title insurance companies to report the identities of individuals behind shell companies used in non-financed residential real estate purchases. The renewed GTOs, effective from October 16, 2024, to April 14, 2025, cover specific counties and metropolitan areas in California, Colorado, Connecticut, Florida, Hawaii, Illinois, Maryland, Massachusetts, Nevada, New York, Texas, Virginia, Washington and the District of Columbia, with a purchase price threshold of $300,000. There is one exception for the City and County of Baltimore, where the purchase price threshold is $50,000. The order mandated that title insurance companies report transactions involving residential real estate purchases by legal entities without bank loans, using various forms of payment, including currency and checks. The companies must file a FinCEN Currency Transaction Report within 30 days of closing such transactions, detailing the identities of the individuals and entities involved, the purchase price, and the method of payment.
Washington, D.C. Attorney General settles with a title insurance company
On October 24, the District of Columbia Office of the Attorney General (D.C. AG) announced a $500,000 settlement with a title insurance company accused of an illegal kickback scheme. The D.C. AG alleged the company offered discounted ownership interests and lucrative profit-sharing arrangements to real estate agents in entities created to make business referrals to the title company. This alleged conduct violated D.C.’s Consumer Protection Procedures Act. The company denied these allegations but agreed to the settlement, which mandates a $500,000 payment to the District.
The company agreed to end the practice of giving real estate agents consideration for the referral of title insurance business and to either cease its title insurance operations in D.C. or divest real estate agents from their ownership interests in the spin-off entities. The company is also prohibited from forming or maintaining ownership interests in any entity offering title insurance or settlement services if real estate agents have an ownership interest, and any existing entities may not apply or reapply for licensure so long as they are owned in part by real estate agents.
This is not the first time the D.C. AG had taken action to curtail illegal kickback schemes in the D.C. real estate market. As previously covered by InfoBytes, the D.C. AG previously secured settlements totaling $3.2 million against four other title companies for similar kickback schemes.
DC AG takes action against four title insurance companies for unlawful insurance kickback schemes
On August 29, the Attorney General for the District of Columbia (DC AG) released four assurances of voluntary compliance against several real estate companies for allegedly using “illegal kickback schemes” in the title insurance market. The DC AG stated in each assurance that it sought injunctive relief, consumer restitution, civil penalties, costs and attorneys’ fees for violations of DC’s Consumer Protection Procedures Act (CPPA). Although only recently published, two of the settlements were executed in 2023.
In the first assurance, the DC AG alleged that the company — which provided title insurance, escrow, and closing services to DC consumers — created subsidiary agents to receive profits from their own referral business. Noting that DC law prohibits “[a] title insurer or other person” from “giv[ing] or receiv[ing]… any consideration for the referral of title insurance business or escrow… provided by a title insurer,” the DC AG found that the company’s business practices constituted unfair and deceptive trade practices under the CPPA and imposed a $1.9 million civil penalty on the company. Regarding the second assurance, the DC AG took action against a provider of title insurance and settlement services whose employees’ were compensated for the referral of title insurance business in violation of DC law. The DC AG claimed the same violations and an injunction and fined the company $1 million. In the third and fourth assurances, the companies provided title insurance services to DC consumers by establishing joint ventures with local real estate agents, which the DC AG found the companies created to refer title insurance business and share the profits. The companies were respectively fined $325,000 and $65,000 to resolve the claims.
CFPB blog post tackles mortgage closing costs, seeks consumer feedback
On March 8, the CFPB published a blog post seeking consumer input on experiences with the closing process of consumer mortgages, and in particular, closing costs. The blog post posited that closing costs significantly impact a borrower’s financial commitment and, potentially, monthly payments and identified a “noticeable increase” in closing costs, with median total loan expenses on home purchase loans increasing by 21.8 percent between 2021 and 2022. In particular, the Bureau singled out title insurance fees and credit reporting fees. It labeled title insurance as a fee that borrowers are charged and for which they have no control over the cost, alleging that “the amount that borrowers pay for lender’s title insurance is often much greater than the risk.” With respect to credit reports, the Bureau remarked that the highly concentrated industry dictates the price of credit reports, citing anecdotal evidence of cost increases of 25 to 400 percent.
The blog post also indicated that borrowers with smaller mortgages, including those with lower incomes, first-time homebuyers, and individuals residing in Black and Hispanic communities, are often disproportionately affected by closing costs, because they are typically fixed costs and do not change based on the size of the loan. The Bureau requested that consumers provide input on their experience with mortgage or closing costs, signaling that it will continue to analyze and if necessary “issue rules and guidance to improve competition, choice, and affordability.”
NYDFS enforces its cybersecurity regulation for the first time
On July 22, NYDFS filed a statement of charges against a title insurer for allegedly failing to safeguard mortgage documents, including bank account numbers, mortgage and tax records, and other sensitive personal information. This is the first enforcement action alleging violations of NYDFS’ cybersecurity regulation (23 NYCRR Part 500), which took effect in March 2017 and established cybersecurity requirements for banks, insurance companies, and other financial services institutions. (See InfoBytes coverage on NYDFS’ cybersecurity regulation here.) Charges filed against the company allege that a “known vulnerability” in the company’s online-based data storage platform was not fixed, which allowed unauthorized users to access restricted documents from roughly 2014 through 2019 by changing the ImageDocumentID number in the URL. Although an internal penetration test (i.e., an authorized simulated cyberattack) discovered the vulnerability in December 2018, NYDFS claims that the company did not take corrective action until six months later, when a well-known journalist publicized the problems.
The company allegedly violated six provisions of 23 NYCRR Part 500, including failing to (i) conduct risk assessments for sensitive data stored or transmitted within its information systems; (ii) maintain appropriate, risk-based policies governing access controls to sensitive data; (iii) limit user-access privileges to information systems providing access to sensitive data, or periodically reviewing these access privileges; (iv) implement a risk assessment system to sufficiently identify the availability and effectiveness of controls for protecting sensitive data and the company’s information system; (v) provide adequate data security training for employees and affiliated title agents responsible for handling sensitive data; and (vi) encrypt sensitive documents or implement suitable controls to protect sensitive data. Additionally, NYDFS maintains that, among other things, the company misclassified the vulnerability as “low” severity despite the magnitude of the document exposure, failed to investigate the vulnerability within the timeframe dictated by the company’s internal cybersecurity policies, and did not conduct a reasonable investigation into the exposure or follow recommendations made by its internal cybersecurity team.
A hearing is scheduled for October 26 to determine whether violations occurred for the company’s alleged failure to safeguard consumer information.
CFPB releases TRID factsheet and FAQs
On June 9, the CFPB released a factsheet on TRID Title Insurance Disclosures and FAQs regarding lender credits on the total payments disclosure, the optional signature line, and separating consumer and seller information. Highlights of each document include:
- TRID Title Insurance Disclosures. The factsheet discusses the two forms of title insurance commonly purchased in residential transactions—lender’s title insurance and owner’s title insurance. The factsheet breaks down the disclosure rules for each, including, among other things, (i) when and how the costs are required to be disclosed; (ii) specifics regarding simultaneous title insurance; and (iii) differences between state disclosures and TRID disclosures for simultaneous rates. The Bureau also provides detailed disclosure examples for various title insurance scenarios.
- FAQs. The updated FAQs note, among other things, that when providing separate closing disclosures to sellers and consumers, the TRID Rule requires seller-paid loan costs and other costs to be disclosed on page 2 of the consumer’s Closing Disclosure. Additionally, the FAQs provide a breakdown of the Total of Payments disclosure on the Closing Disclosure and discuss when a creditor may require a consumer to sign a Loan Estimate or Closing Disclosure.
Illinois Department of Financial and Professional Regulation issues notice to title insurance licensees and registered agents
On March 30, the Illinois Department of Financial and Professional Regulation (Department) issued a notice encouraging title insurance licensees and registered agents to provide the Department with advance notice of any changes to their usual business practices. If a registered agent application has been submitted, it will be processed as quickly as possible.
Utah applies RESPA provisions to title entity affiliated business arrangements
On March 29, the Utah governor signed SB 121, which modifies certain title insurance definitions and provisions and adopts, with certain exceptions, Section 8 of RESPA for the purposes of state law governing affiliated business arrangements involving title entities. SB 121 “repeals existing provisions governing controlled business relationships in the title industry,” and permits an “affiliated business arrangement” as defined under 12 U.S. Code § 2602, with the exception that the “services that are the subject of the arrangement do not need to involve a federally related mortgage loan.”
Specifically, title entities with affiliated-business arrangements will be regulated by the state’s Division of Real Estate (Division), which has enforcement authority over the bill’s provisions, including over certain RESPA provisions against real estate licensees such as “failing to timely disclose to a buyer or seller an affiliated business relationship.” Title companies are also required to file annual reports to the Division related to affiliated business arrangements as well as capitalization for the previous calendar year. SB 121 further provides a specific list of RESPA violations pertaining to affiliated business arrangements. The amendments take effect 60 days after adjournment of the legislature.
NYDFS issues title insurance guidance following Appellate Division ruling on Regulation 208
On January 31, NYDFS issued Supplement No. 2 to Insurance Circular Letter No. 1 (2003), which provides guidance to the title insurance industry following a January 15 unanimous decision by the Appellate Division of the New York State Supreme Court to uphold Insurance Regulation 208. The Appellate Division’s decision vacated the majority of a trial court order annulling Regulation 208, which limits title insurers’ ability to offer inducements to obtain business. (See previous InfoBytes coverage here.)
The NYDFS supplement highlighted three critical holdings from the Appellate Division’s decision. First, the court upheld Regulation 208’s ban on inducements for future title insurance business, recognizing that NYDFS had found that lavish gifts were routinely offered to intermediaries such as lawyers in anticipation of receiving business. Second, the appellate court held that Insurance Law § 6409(d), which prohibits a commission, rebate, fee, or “other consideration or valuable thing,” is not limited to a prohibition on quid pro quo exchanges for specific business. Third, the court annulled Regulation 208’s ban on certain closer fees and fees for ancillary searches.
Supreme Court of New York strikes down NYDFS’ Insurance Regulation 208
On July 5, the Supreme Court of the State of New York ordered the annulment of Insurance Regulation 208, which was promulgated by the New York State Department of Financial Services (NYDFS) in October 2017. The decision results from an Article 78 petition by several title insurance companies challenging the state regulation, which prohibits title insurance entities from providing benefits such as meals, tickets to events, gifts, cash, access to parties, trips and other incentives to referral sources. The regulation clarifies that certain “reasonable and customary” advertising and marketing expenses are permitted under New York’s insurance law, provided they are “without regard to insured status or conditioned directly or indirectly on the referral of title business.” The title insurance companies argue that Regulation 208’s restrictions are inconsistent with New York’s insurance law because the law only prohibits “quid pro quo inducements given in exchange for title insurance business” and the law permits marketing and entertainment payments so long as they are not being exchanged for “a specific identified piece of business.”
The court agreed and found that the insurance law—which prohibits a “commission,” “rebate,” “fee,” or “other consideration or valuable thing”—could not be construed to include marketing and entertainment expenses because “it is common sense that marketing is an inducement for business” and it would be “an absurd proposition” that the New York Legislature intended to prohibit companies from marketing themselves. Additionally, construing the insurance law to include marketing and entertainment expenses as prohibited expenditures but also including a provision which delineates certain types of marketing and entertainment expenses as permissible is “irreconcilable and irrational.” The court ultimately concluded that Regulation 208 must fail because it contravenes the will of the Legislature under the insurance law.
In response to the decision, NYDFS Superintendent, Maria T. Vullo, issued a statement that the state intends to appeal as they “remain certain of [their] legal opinion and are confident [they] will prevail on appeal.” On July 6, NYDFS filed a notice of appeal with the court.