Florida Senate - 2012                                    SB 1404
       
       
       
       By Senator Altman
       
       
       
       
       24-00987-12                                           20121404__
    1                        A bill to be entitled                      
    2         An act relating to title insurance; amending s.
    3         626.2815, F.S.; specifying continuing education
    4         requirements for title insurance agents; authorizing
    5         the Department of Financial Services to contract with
    6         a private entity for services related to continuing
    7         education for title insurance agents; amending s.
    8         626.841, F.S.; providing a definition for the term
    9         “agent in charge of a title insurance agency”;
   10         amending s. 626.8417, F.S.; requiring that certain
   11         attorney-owned entities that engage in business as a
   12         title insurance agency, other than the active practice
   13         of law, must be licensed as a title insurance agency
   14         with a designated agent in charge; amending s.
   15         626.8418, F.S.; deleting specified financial security
   16         and bond requirements relating to an applicant for
   17         licensure as a title insurance agency; amending s.
   18         626.8419, F.S.; increasing the amount of a fidelity
   19         bond that a title insurance agency must file with the
   20         department and limiting the amount of the deductible
   21         applicable to such bond; creating s. 626.8422, F.S.;
   22         specifying requirements that apply to title insurance
   23         agencies relating to the designation of an agent in
   24         charge at specified locations; providing a penalty for
   25         failing to designate an agent in charge under certain
   26         circumstances; amending s. 626.8437, F.S.; specifying
   27         additional grounds to deny, suspend, revoke, or refuse
   28         to renew or continue the license or appointment of a
   29         title insurance agent or agency; amending s. 626.8473,
   30         F.S.; requiring an attorney serving as a title or real
   31         estate settlement agent to deposit and maintain
   32         certain funds in a separate trust account and permit
   33         the account to be audited by the applicable title
   34         insurer, unless prohibited by the rules of The Florida
   35         Bar; amending s. 627.777, F.S.; providing procedures
   36         and requirements relating to the approval or
   37         disapproval of title insurance forms by the
   38         department; creating s. 627.7815, F.S.; specifying
   39         requirements for submission of a document or
   40         information to the department in order for a person to
   41         claim that the document is a trade secret; requiring
   42         each page or portion to be labeled as a trade secret
   43         and be separated from non-trade secret material;
   44         requiring the submitting party to include an affidavit
   45         certifying certain information about the documents
   46         claimed to be trade secrets; providing that certain
   47         data submitted by a title insurance agent or title
   48         insurer is presumed to be a trade secret whether or
   49         not so designated; amending s. 627.782, F.S.;
   50         requiring title insurance agencies and certain
   51         insurers to submit specified information to the
   52         department to assist in the analysis of title
   53         insurance premium rates, title search costs, and the
   54         condition of the title insurance industry; creating s.
   55         627.7985, F.S.; authorizing the department to adopt
   56         specified rules relating to title insurance; providing
   57         penalties for willful violation of any such rule;
   58         creating s. 689.263, F.S.; specifying requirements
   59         that a title insurance agent or agency must meet in
   60         order to distribute funds relating to certain real
   61         estate sales or purchases; providing an effective
   62         date.
   63  
   64  Be It Enacted by the Legislature of the State of Florida:
   65  
   66         Section 1. Paragraph (d) of subsection (3) of section
   67  626.2815, Florida Statutes, is amended, paragraph (l) is added
   68  to that subsection, and subsection (8) is added to that section,
   69  to read:
   70         626.2815 Continuing education required; application;
   71  exceptions; requirements; penalties.—
   72         (3)
   73         (d) Any person who holds a license as a customer
   74  representative, limited customer representative, title agent,
   75  motor vehicle physical damage and mechanical breakdown insurance
   76  agent, crop or hail and multiple-peril crop insurance agent, or
   77  as an industrial fire insurance or burglary insurance agent and
   78  who is not a licensed life or health insurance agent, must shall
   79  be required to complete 10 hours of continuing education courses
   80  every 2 years.
   81         (l) Any person who holds a license as a title insurance
   82  agent must complete a minimum of 10 hours of continuing
   83  education courses every 2 years in title insurance and escrow
   84  management specific to this state and approved by the
   85  department, which shall include at least 3 hours of continuing
   86  education on the subject matter of ethics, rules, or compliance
   87  with state and federal regulations relating to title insurance
   88  and closing services.
   89         (8) The department may contract with a private entity for
   90  services related to the administration, review, or approval of a
   91  continuing education program for title insurance agents. The
   92  contract shall be procured as one for a contractual service
   93  pursuant to s. 287.057.
   94         Section 2. Section 626.841, Florida Statutes, is amended to
   95  read:
   96         626.841 Definitions.—The term:
   97         (1) “Agent in charge of a title insurance agency” means an
   98  attorney or a licensed and appointed title insurance agent who
   99  is designated as agent in charge pursuant to s. 626.8422.
  100         (2) “Title insurance agency” means an insurance agency
  101  under which title insurance agents and other employees determine
  102  insurability in accordance with underwriting rules and standards
  103  prescribed by the title insurer represented by the agency, and
  104  issue and countersign commitments, endorsements, or policies of
  105  title insurance, on behalf of the appointing title insurer. The
  106  term does not include a title insurer.
  107         (3)(1) “Title insurance agent” means a person appointed in
  108  writing by a title insurer to issue and countersign commitments
  109  or policies of title insurance on in its behalf.
  110         Section 3. Paragraph (c) of subsection (4) of section
  111  626.8417, Florida Statutes, is amended to read:
  112         626.8417 Title insurance agent licensure; exemptions.—
  113         (4)
  114         (c) If one or more an attorney or attorneys own a
  115  corporation or other legal entity that which is doing business
  116  as a title insurance agency other than an entity engaged in the
  117  active practice of law, the agency must be licensed and
  118  appointed as a title insurance agency with an agent in charge
  119  designated for the agency.
  120         Section 4. Section 626.8418, Florida Statutes, is amended
  121  to read:
  122         626.8418 Application for title insurance agency license.
  123  Before Prior to doing business in this state as a title
  124  insurance agency, a title insurance agency must meet all of the
  125  following requirements:
  126         (1) The applicant must file with the department an
  127  application for a license as a title insurance agency, on
  128  printed forms furnished by the department, that includes all of
  129  the following:
  130         (1)(a) The name of each majority owner, partner, officer,
  131  and director of the agency.
  132         (2)(b) The residence address of each person required to be
  133  listed under subsection (1) paragraph (a).
  134         (3)(c) The name of the agency and its principal business
  135  address.
  136         (4)(d) The location of each agency office and the name
  137  under which each agency office conducts or will conduct
  138  business.
  139         (5)(e) The name of each agent to be in full-time charge of
  140  an agency office and specification of which office.
  141         (6)(f) Such additional information as the department
  142  requires by rule to ascertain the trustworthiness and competence
  143  of persons required to be listed on the application and to
  144  ascertain that such persons meet the requirements of this code.
  145         (2) The applicant must have deposited with the department
  146  securities of the type eligible for deposit under s. 625.52 and
  147  having at all times a market value of not less than $35,000. In
  148  place of such deposit, the title insurance agency may post a
  149  surety bond of like amount payable to the department for the
  150  benefit of any appointing insurer damaged by a violation by the
  151  title insurance agency of its contract with the appointing
  152  insurer. If a properly documented claim is timely filed with the
  153  department by a damaged title insurer, the department may remit
  154  an appropriate amount of the deposit or the proceeds that are
  155  received from the surety in payment of the claim. The required
  156  deposit or bond must be made by the title insurance agency, and
  157  a title insurer may not provide the deposit or bond directly or
  158  indirectly on behalf of the title insurance agency. The deposit
  159  or bond must secure the performance by the title insurance
  160  agency of its duties and responsibilities under the issuing
  161  agency contracts with each title insurer for which it is
  162  appointed. The agency may exchange or substitute other
  163  securities of like quality and value for securities on deposit,
  164  may receive the interest and other income accruing on such
  165  securities, and may inspect the deposit at all reasonable times.
  166  Such deposit or bond must remain unimpaired as long as the title
  167  insurance agency continues in business in this state and until 1
  168  year after termination of all title insurance agency
  169  appointments held by the title insurance agency. The title
  170  insurance agency is entitled to the return of the deposit or
  171  bond together with accrued interest after such year has passed,
  172  if no claim has been made against the deposit or bond. If a
  173  surety bond is unavailable generally, the department may adopt
  174  rules for alternative methods to comply with this subsection.
  175  With respect to such alternative methods for compliance, the
  176  department must be guided by the past business performance and
  177  good reputation and character of the proposed title insurance
  178  agency. A surety bond is deemed to be unavailable generally if
  179  the prevailing annual premium exceeds 25 percent of the
  180  principal amount of the bond.
  181         Section 5. Paragraph (a) of subsection (1) of section
  182  626.8419, Florida Statutes, is amended to read:
  183         626.8419 Appointment of title insurance agency.—
  184         (1) The title insurer engaging or employing the title
  185  insurance agency must file with the department, on printed forms
  186  furnished by the department, an application certifying that the
  187  proposed title insurance agency meets all of the following
  188  requirements:
  189         (a) The agency must have obtained a fidelity bond in an
  190  amount, not less than $250,000, with a deductible not exceeding
  191  1 percent of the bond amount $50,000, acceptable to the insurer
  192  appointing the agency. If a fidelity bond is unavailable
  193  generally, the department must adopt rules for alternative
  194  methods to comply with this paragraph.
  195         Section 6. Section 626.8422, Florida Statutes, is created
  196  to read:
  197         626.8422 Agent in charge.—
  198         (1) Each location within this state of a title insurance
  199  agency or branch office of a title insurance agency that is
  200  regularly open to the public for closing services, as defined in
  201  s. 627.7711, and at which disbursement of escrow funds or policy
  202  issuance services are regularly performed must have a separate
  203  agent in charge designated by the title insurance agency. The
  204  failure of a title insurance agency to designate an agent in
  205  charge, on a form prescribed by the department, within 10
  206  working days after an agency begins business at a location or
  207  makes a change of the agent in charge, is a violation of this
  208  chapter, punishable as provided in s. 626.844.
  209         (2) The agent in charge shall perform the activities
  210  described in subsection (1) at the location where he or she is
  211  the designated agent in charge.
  212         (3) An agency shall designate an attorney duly admitted to
  213  practice law in this state and in good standing with The Florida
  214  Bar or a title insurance agent licensed in this state as agent
  215  in charge for each location of the agency or insurer as
  216  described in subsection (1). In the case of multiple locations
  217  where the activities as described in subsection (1) are
  218  performed, the agency shall designate a separate agent in charge
  219  for each location.
  220         Section 7. Subsections (11) and (12) are added to section
  221  626.8437, Florida Statutes, to read:
  222         626.8437 Grounds for denial, suspension, revocation, or
  223  refusal to renew license or appointment.—The department shall
  224  deny, suspend, revoke, or refuse to renew or continue the
  225  license or appointment of any title insurance agent or agency,
  226  and it shall suspend or revoke the eligibility to hold a license
  227  or appointment of such person, if it finds that as to the
  228  applicant, licensee, appointee, or any principal thereof, any
  229  one or more of the following grounds exist:
  230         (11) Failure to timely submit data as required by the
  231  department.
  232         (12) If a licensee, being charged with an insurance or
  233  financial-related felony, a crime involving moral turpitude, or
  234  a crime punishable by imprisonment of 1 year or more under the
  235  law of any state, territory, or country.
  236         Section 8. Subsection (8) is added to section 626.8473,
  237  Florida Statutes, to read:
  238         626.8473 Escrow; trust fund.—
  239         (8) An attorney shall deposit and maintain all funds
  240  received in connection with transactions in which the attorney
  241  is serving as a title or real estate settlement agent into a
  242  separate trust account that is maintained exclusively for funds
  243  received in connection with such transactions and permit the
  244  account to be audited by its title insurers, unless maintaining
  245  funds in the separate account for a particular client would
  246  violate applicable rules of The Florida Bar.
  247         Section 9. Section 627.777, Florida Statutes, is amended to
  248  read:
  249         627.777 Approval of forms.—
  250         (1) A title insurer may not issue or agree to issue any
  251  form of title insurance commitment, title insurance policy,
  252  other contract of title insurance, or related form until it is
  253  filed with and approved by the office. The office may not
  254  disapprove a title guarantee or policy form on the ground that
  255  it has on it a blank form for an attorney’s opinion on the
  256  title.
  257         (2) If the form filed for approval is a form certified and
  258  adopted by the American Land Title Association at the time of
  259  filing, the department shall approve or disapprove the form
  260  within 180 days after receipt. If the form is not a form
  261  certified by the American Land Title Association at the time of
  262  filing, the department shall approve or disapprove the form
  263  within 1 year after receipt.
  264         (3) When the department approves any form, it shall
  265  determine if the current rate in effect applies or if the
  266  coverages require the adoption of a rule pursuant to s. 627.782.
  267         (4) The department may revoke approval of any form after
  268  providing 180 days’ notice to the title insurer if the basis for
  269  revocation is that the American Land Title Association has
  270  decertified a previously approved form.
  271         (5) An insurer may not achieve a competitive advantage over
  272  any other insurer, agency, or agent as to rates or forms. If a
  273  form or rate is approved for an insurer, the department shall
  274  expeditiously approve the forms of other insurers who apply for
  275  approval if those forms contain identical coverages, rates, or
  276  deviations which have been approved under s. 627.783.
  277         Section 10. Section 627.7815, Florida Statutes, is created
  278  to read:
  279         627.7815 Trade secret documents.—If any person who is
  280  required to submit a document or other information to the
  281  department pursuant to this part or by rule or order of the
  282  department claims that such submission contains a trade secret,
  283  such person may file with the department a notice of trade
  284  secret. Failure to do so constitutes a waiver of any claim by
  285  the person that the requested document or information is a trade
  286  secret.
  287         (1) Each page of such document or specific portion of a
  288  document claimed to be a trade secret must be clearly marked
  289  “trade secret.”
  290         (2) All material marked “trade secret” must be separated
  291  from all non-trade-secret material, such as being submitted in a
  292  separate envelope clearly marked “trade secret.”
  293         (3) When submitting a notice of trade secret to the
  294  department, the submitting party must include an affidavit
  295  certifying under oath to the truth of the following statements
  296  concerning all information and documents that are claimed to be
  297  trade secrets:
  298         (a) [I consider/My company considers] this information a
  299  trade secret that has value and provides an advantage or an
  300  opportunity to obtain an advantage over those who do not know or
  301  use it.
  302         (b) [I have/My company has] taken measures to prevent the
  303  disclosure of the information to anyone other than those who
  304  have been selected to have access for limited purposes, and [I
  305  intend/my company intends] to continue to take such measures.
  306         (c) The information is not, and has not been, reasonably
  307  obtainable without [my/our] consent by other persons by use of
  308  legitimate means.
  309         (d) The information is not publicly available elsewhere.
  310         (4) Any data submitted by a title insurance agent or title
  311  insurer pursuant to s. 627.782 are presumed to be a trade secret
  312  under this section whether or not so designated.
  313         Section 11. Subsection (8) of section 627.782, Florida
  314  Statutes, is amended to read:
  315         627.782 Adoption of rates.—
  316         (8) Each title insurance agency licensed to do business in
  317  this state and each insurer engaging in direct, retail, or
  318  affiliated business in this state shall maintain and submit
  319  information, including revenue, loss, and expense data, as the
  320  department determines necessary to assist in the analysis of
  321  title insurance premium rates, title search costs, and the
  322  condition of the title insurance industry in this state. This
  323  information must be transmitted to the department annually by
  324  March 31 of the year after the reporting year. The department
  325  shall adopt rules to assist in the collection and analysis of
  326  the data from the title insurance industry. The commission may,
  327  by rule, require licensees under this part to annually submit
  328  statistical information, including loss and expense data, as the
  329  department determines to be necessary to analyze premium rates,
  330  retention rates, and the condition of the title insurance
  331  industry.
  332         Section 12. Section 627.7985, Florida Statutes, is created
  333  to read:
  334         627.7985 Rules as to title insurance.—
  335         (1) In addition to the authority to adopt rules relating to
  336  title insurance authorized elsewhere in the Florida Insurance
  337  Code, the department may adopt rules that:
  338         (a) Define the license and appointment requirements for
  339  title insurance agents and agencies.
  340         (b) Establish penalty guidelines for enforcing the
  341  requirements of the Florida Insurance Code.
  342         (c) Describe the fiduciary responsibilities and duties of
  343  title insurers, title insurance agents, and title insurance
  344  agencies, including, but not limited to, responsibilities and
  345  duties related to escrow accounts.
  346         (d) Identify the responsibilities, duties, and designations
  347  of the agent in charge of the title insurance agency.
  348         (e) Enable the collection and analysis of information
  349  relating to the title insurance business submitted by title
  350  insurers, title insurance agents, and title insurance agencies.
  351         (f) Set reasonable requirements for the timely recording of
  352  documents and the delivery of final title insurance policies.
  353         (g) Set reasonable requirements for the timely disbursement
  354  of escrow funds unless a written escrow agreement specifies a
  355  longer holding period.
  356         (h) Establish rules for the protection, calculation, and
  357  timely remittance of premiums that are owed to title insurers.
  358         (i) Prohibit the markup of the cost of any third-party
  359  goods and services that do not add value.
  360         (2) In addition to any other penalty provided for under the
  361  Florida Insurance Code for a violation of a rule, a title
  362  insurer or title insurance agent or agency is subject to
  363  suspension or revocation of a certificate of authority or
  364  license, as may be applicable, for the willful violation of any
  365  rule.
  366         Section 13. Section 689.263, Florida Statutes, is created
  367  to read:
  368         689.263 Sale of residential property; settlement statement
  369  requirements.—A title insurance agent or title insurance agency
  370  may not disburse funds pursuant to a completed purchase and sale
  371  transaction or refinance transaction subject to the Real Estate
  372  Settlement Procedures Act of 1974 (RESPA), 12 U.S.C. ss. 2601 et
  373  seq., as amended, without requiring a statement of settlement
  374  costs meeting the following requirements:
  375         (1) The settlement statement must be executed by the buyer,
  376  borrower, seller, if any, and settlement agent as defined by
  377  RESPA.
  378         (2) If a title insurance premium is to be disbursed, the
  379  title insurer and the title insurance agent or title insurance
  380  agency, if any, must be disclosed.
  381         Section 14. This act shall take effect July 1, 2012.