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Retention of Title Records Training

IL Statute and IDFPR guidance

The Illinois Title Insurance Act requires title agents to maintain certain records for at least 7 years after issuance of the corresponding title insurance policy. Section 215 ILCS 155/21.3 provides that “evidence of the examination of title, if any, and determination of insurability for business written by a title insurance company or its title insurance agent … shall be preserved and retained by the title insurance company or its title insurance agent for as long as appropriate to the circumstances, but in no event less than 7 years after the title insurance policy has been issued … or as provided by applicable federal law.”

FNF Agency Contract

FNF currently requires its full-service agents to maintain all required records for the state-mandated duration of time and provide records to FNF in a timely manner upon request. These obligations are imposed through FNF’s standard written agency agreement, which also grants FNF the right to terminate the agreement of any agent that fails to comply with applicable record retention requirements.

Consistent with Illinois state law, our standard title insurance agency agreement requires title agents to prepare, preserve, and maintain a separate title file “containing all documents upon which Agent relied to make its determination of insurability, including, but not limited to: affidavits, maps, plats, lien waivers, surveys, title reports, searches, examinations, and work sheets, together with a copy of each commitment, policy, endorsement and other title assurance issued.” Such records “shall be preserved in accordance with applicable State document retention requirements, or in the case of a legal hold order, in accordance with instructions of Principal.”

Federal guidance

§1026.25 of Regulation Z provides Federal record retention requirements under the TILA-RESPA Integrated Disclosure Rule. There are three significant record retention requirements under the Rule:

  1. A creditor must retain copies of the Closing Disclosure (and all documents related to the Closing Disclosure) for five years after consummation.
  2. The creditor, or servicer if applicable, must retain the Escrow Closing Notice and the Post-Consummation Partial Payment Policy disclosure for two years. These requirements are derived from RESPA (Regulation X).
  3. Creditors must maintain “evidence of compliance” with the Integrated
    Disclosure to meet provisions of Regulation Z. While not very specific, this should include the Loan Estimate forms and all documents related to the Closing Disclosure.

Regulations X and Z permit, but do not require, electronic record-keeping. These records can be maintained by any method that reproduces disclosures and other records accurately, including computer programs.

Records required to be maintained

FNF agents must maintain all documents upon which agents relied to make its determination of insurability, including, but not limited to:

  • affidavits,
  • maps,
  • plats,
  • lien waivers,
  • surveys,
  • title reports,
  • searches,
  • examinations,
  • work sheets, and
  • copies of each commitment, policy, endorsement and other title assurance issued

 

Communications

FNF expects that all its agents take the requirements for records retention under state law and our agency agreements seriously. Statutorily required records must be available for regulators to review upon request. Additionally, both FNF and the Illinois Department of Financial and Professional Regulation expect that full-service agents will require the attorney agents they engage to likewise retain required records for the state mandated duration of time.

During routine audits of our agents, FNF will review agents for records retention compliance. If FNF finds during an agency audit that the agent has not maintained files properly, it may make recommendations in its audit report that the agent improve its file maintenance procedures.

Failure to comply with both Illinois and FNF requirements regarding records retention may result in adverse consequences, including termination of the agency relationship with FNF.

Questions

If you have any questions about these requirements or what documents are expected to be retained, please contact your FNTG agency underwriter.

(THIS MEMO IS INTENDED FOR THE AGENTS AND DIRECT OPERATIONS OF FIDELITY NATIONAL FINANCIAL AND IS NOT TO BE FORWARDED WITHOUT THE EXPRESS WRITTEN CONSENT OF FNF.)

Your Underwriting Team

Jeff York
Jeff.York@ctt.com
Direct: 312-223-2328

Dawn Godlewski
Dawn.Godlewski@ctt.com
Direct: 312-223-2338

Dan Johnson
Daniel.Johnson@ctt.com
Direct: 312-223-2727

 

DOWNLOAD MEMO

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Record Retention Bulletin For All NCS Agents

NCS Chicago would like to remind our valued Agents on the policies for record retention.

The IL Title Insurance Act requires the retention of certain records for at least 7 years after issuance of a title insurance policy or as provided by applicable federal law.

Record Retention Training

Chicago Title Insurance Company (“NCS Chicago”) will create training on record retention requirements required under the Illinois Title Insurance Act, rules and regulations promulgated pursuant to the Act, and federal law, which NCS Chicago shall post to its website and make available to all of its agents. (See attached bulletin.) NCS Chicago will incorporate such training into its new agent on-boarding process and into its bi-monthly training webinars for agents.

Chicago Title Insurance Company will require its full-service agents to maintain copies of their contracts with attorney agents, including, but not limited to agreements respecting title premium splits or other compensation. This requirement will be incorporated into all trainings as well.

Audits

As noted in the attached FNTG bulletin, Chicago Title Insurance Company will conduct periodic field audits of its Agents to ensure compliance regarding retention of documents.

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Cannabis Customer Memo

Download Customer Memo

Schedule B, Part I of all title commitments issued by Chicago Title Insurance Company (“Chicago Title”) now include the following:

      1. Notice: Please be aware that due to the conflict between federal and state laws concerning the cultivation, distribution, manufacture or sale of marijuana, the Company is not able to close or insure any transaction involving Land that is associated with these activities.

While a number of states have legalized the cultivation and distribution of marijuana at various levels, it remains recognized as a Schedule I controlled substance by the federal government. Further, the manufacturing, distribution, or possession of marijuana is punishable under the Controlled Substances Act (the “CSA”).  In the event of federal prosecution and when read with the Supremacy Clause of the Constitution, the CSA would govern and supersede any state law that does not agree.  Given the conflict between federal and state laws at this time, Chicago Title will not insure land that is associated with marijuana-based activities.

Outside of the above, we have received inquiries concerning Chicago Title’s stance on insuring land that is used for the production, distribution and/or sale of hemp products and hemp-derived products such as Cannabidiol (CBD).  While it is important that you reach out to your Chicago Title, NCS Chicago account manager to begin conversations concerning our willingness to insure land involving any such related uses, the following shall serve as basic guidelines in these areas:

Hemp

Under the recently passed Agriculture Improvement Act of 2018 (the “2018 Farm Bill”), the production of hemp has been legalized on a federal level, subject to the conditions contained therein.  Chicago Title is willing to insure land containing hemp facilities, provided we are able to determine that such facilities exist legally under both state and federal law—with all necessary permits/licenses issued by the appropriate authorities.

CBD

CBD and other hemp-derived products are likewise legal under the 2018 Farm Bill, provided the hemp from which they are derived is produced in accordance with the Bill.  As a result, Chicago Title is willing to insure land containing retail establishments being used for the sale of such hemp-derived products.

Since the regulation of the above remains in a state of fluctuation, it is important that all specific questions concerning Chicago Title’s position be directed to your Chicago Title, NCS Chicago account manager.  We strongly encourage that our customers have conversations with their clients about the planned use(s) of land and address questions as to Chicago Title’s willingness to insure as early as possible.

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NCS News Brief: State Lien Registration Act

Click HERE to download the memo below.

Effective January 1, 2018 Public Act 100-22 (SB9) (“Act”) authorized the Illinois Department of Revenue (“IDOR”) to provide a uniform statewide system for the filing of notices for state tax liens. IDOR will now maintain an online database for the filing of state tax liens for real and personal property, tangible and intangible, against parties with unpaid final state tax liabilities.

The Act also does not invalidate any prior lien recorded with a county recorder in Illinois prior to the effective date of the Act, however, the IDOR will no longer be recording its liens or releases with local county recorders. Instead, the IDOR will now maintain its own searchable lien registry to file state tax liens in their online database.

Whenever Chicago Title is searching property for the purpose of issuing commitments or policies, a search will be conducted on the Illinois State Tax Lien Registry (STLR) which will be found at http://tax.illinois.gov. The link to the STLR will appear in the left column on this page under “Lien Registry”. Questions regarding the internal workings of the STLR can be sent to rev.lien@illinois.gov.

Chicago Title Attorney Agents should be aware that all search packages provided to them for examination will contain an additional search page(s) to cover items filed in the IDOR online database.

The State Tax Lien Registry (“STLR”) was effective and online as of January 1, 2018.

A notice of tax lien registered in the STLR on or after December 1, 2017 will be a lien upon all property owned by the taxpayer in the State of Illinois, without any further requirement of recording in any specific county.

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NCS News Brief: New 2016 ALTA Commitment for Title Insurance

Download MEMO below and New 2016 ALTA Commitment HERE.

As of October 15, 2017, all Chicago Title offices in the State of Illinois are now issuing the 2016 ALTA commitment form adopted by ALTA.  This is a nationwide ALTA standard.  In states where you have not already been seeing this form, you will in the near future.  The use of the commitment has not changed in any fundamental way, but does contain certain revisions and important clarification regarding the obligations of all parties. 

On the first page of the new commitment, you will see at the top of the form that a new NOTICE provision has been incorporated as part of the commitment.  This NOTICE provision sets forth in the first paragraph that this ALTA commitment is only an offer to issue a title insurance policy and nothing more.  In addition, all claims under the commitment must be based solely in contract law.  In other words, the commitment is really just the initial step in the formation of a binding contract, that being the title insurance policy.

The second paragraph of the NOTICE provision states that the “commitment is not an abstract of title, report of the condition of title, legal opinion, opinion of title, or other representation of the status of title.”  Essentially the title commitment is not to be seen as an informational product and not a reflection as to the state of title, but rather a limitation on the obligation of the Title Company to that of issuing a policy.

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