(OP-ED, first posted: August 29, 2018) —
The writer of this post is a paralegal and consultant to attorneys on matters involving chain of title, foreclosures and document manufacturing. The opinions expressed herein are that of the writer’s only and do not constitute legal or financial advice.
It is hard to say how much we spend on the average for insurance coverage for a wide and varied range of issues. I personally spend over $7,000 a year on insurance and I’m sure that others spend well more than that. My CPA’s tell me that what you spend on ALL insurance is supposed to equal roughly 10% of your estimated gross income. If you’re spending more than that, something might be amiss with your personal financial planning.
As a business, basic liability insurance for a small business like mine consulting firm runs about $350 a year. I am sure that other larger firms are then paying into the tens of thousands for insurance coverage depending on their liability, which is based on risk assessment. Remember, insurance companies are risk averse, which means they shy away from companies that might posit high-risk behaviors. The insurance companies are in business to make money, not spend it paying claims on damages based on the imputed negligence of their insureds. Insurance companies buy office buildings and other large real estate holdings because they can make a guaranteed income with a full list of tenants paying every month (as an example). Insurance companies ARE the financial guarantee (in large part) guaranteeing “right behavior” of their insureds.
WHERE THE COUNTIES FIT IN …
Counties take in annual property taxes from every property owner registered within their databases, based on assessments of market values and mill levies (dollars per thousand times the estimated assessed value of the property). By law, the counties are always in first lien position, because residency is a jurisdictional issue that was legally addressed by state legislatures long before mortgage liens were. The law makes it easy for a county, over time, to take property away from those who refuse to pay taxes when they become due, whether ad valorem, non-ad valorem or special assessment in nature. Those of you who think you can put property back into the state of allodial title to avoid paying taxes can stop reading now. Those days are seriously OVER and you will lose.
Most counties are self-insured. A lot of the pool of money that the counties rely on for self insurance purposes come from property taxes and go into a general fund. Most counties (the larger ones in population) have Risk Managers. Smaller counties generally employ County Executives, which do principally the same thing: damage control. Counties generally enjoy sovereign immunity. There is plenty of case law to back that up. Sovereign immunity, by definition, is a judicial doctrine that prevents the government or its political subdivisions, departments, and agencies from being sued without its consent. The doctrine stems from the ancient English principle that the monarch (or king) can do no wrong. Ahhhh … but we all know on occasion the “king, or the king’s men … DO WRONG”! Sadly, many of them have gotten away with it.
Counties are sued generally (as you will read about if you did your research like I did before writing Beyond End Game Strategies) for the acts of persons employed by the county. Let’s say someone who works for the county is driving along and runs a red light and slams into your vehicle in an intersection. Believe it or not, THIS type of suit against counties is more predominant than what I’m going to address in this and future articles. Or a child falls into a public swimming pool and drowns because there was no lifeguard around to save him because the lifeguard was off making time with the female pool staff. This could be construed as simple negligence, for which the county could be liable.
ATTORNEYS CAN BE HELD LIABLE FOR MALPRACTICE … BOTH OF THEM!
“Imagine if you will” (to quote the late Rod Serling, or “submitted for your approval”) … going after an attorney for malpractice. Here’s one article posted on Lexology® you’ll probably want to read as a “concept piece”: Tripartite Relationship: Insurers suing panel counsel lawyers – lexology
I covered the foregoing on my recent radio show on WKDW-FM, 97.5, North Port, FL, streaming live at kdwradio.com. You can hear it this Friday night (Aug. 31) at 6 pm EDT! Click LISTEN NOW and wait for the program to start.
The substance of this is based on negligence (negligent behavior). Now, imagine this being applied to foreclosure defense attorneys who fail to perform as expected (and required). Imagine further going after the other side’s attorney for bringing a false and misrepresentative document into a foreclosure case, relying on it and making similarly subjective, misrepresentative statements in open court, allowing the court to step all over your rights in handing your property over to the bank’s mortgage loan servicer. Why isn’t your attorney paying attention to the false and misrepresentative information on the assignments when this is the “keys to the kingdom”? If your attorney has knowledge about the falsity of such a document, he is bound by the Professional Code of Conduct to report it. Have you ever heard of an attorney that has done this? I’ll let you answer that question yourself because I can’t think of one.
When a complaint is filed with the State Bar (of any state), they supposedly have a duty to examine the complaint for its legitimacy. THIS IS NOT SOMETHING YOU SHOULD DO AS A PRO SE LITIGANT! YOU ARE NOT A BAR-LICENSED ATTORNEY! YOU HAVE NO CODE OF PROFESSIONAL CONDUCT YOU HAVE TO ANSWER TO OR FOLLOW!
Subsequent to filing a claim with the State Bar, the E & O policy of the attorney and his law firm is researched and located and contacted. Either a claim will be paid out upon the formal filing of a complaint or in the alternative, claims for attorney representation in front of the state bar could be denied, which means the attorney “is bleeding green”. This is “the system of things” operating in reverse because here … you weren’t paid a benefit, but the attorney was denied a benefit, which was a detriment to him. If the insurance company is allowed to sue to recoup what it has paid out in damages, then they’ll go after the law firm, etc. and make them “bleed green” … this is assuming you suffered a damage (post-foreclosure judgment, loss of home, loss of equity). Once a judgment is obtained, a Motion to Vacate is the only thing that sets the stage for any subsequent action. YOU CANNOT DO THIS YOURSELF! YOU ARE NOT DEFENDING A TRAFFIC TICKET HERE! PRO SE LITIGANTS WILL END UP LOSING THEIR HOME, IN JAIL OR THE SUBJECT OF A HEFTY FINE, OR BOTH! You did not learn any of this in civics class! They don’t teach this stuff in high school OR college for a reason. They don’t want you to know “the system of things” and how it works.
LIABILITY … AND WHY THE BANKS ARE NOT EAGER TO TRANSFER TITLE ON FORECLOSED HOMES …
Let’s take the case of the 2-year-old toddler who accompanied his parents into their new (resale) home in Tampa, Florida. The home they just acquired was situated next to a foreclosed home. There were clearly signs in the windows denoting that the property had been foreclosed on or was about to be. Like most busy parents in the middle of unloading a moving truck, they lost track of the toddler. They found him floating face down in the pool of the foreclosed home, which was not covered up properly, and efforts to revive him failed. Of course, despite the foreclosure on the property, the bank claimed it wasn’t liable because the homeowner’s name was still on title and he was required to pay for insurance and bore all of the responsibility for anything happening on the property. Sadly, this happens a lot (as to the lack of title transfer) with foreclosures, until the banks find a bona fide purchaser. So in my mind, the homeowner, despite the fact he’s vacated the premises, he’s still liable. If the hazard insurance, which covers personal liability, isn’t maintained or isn’t in place at all because of a lapse in coverage, the homeowner then becomes solely and financially liable to the parents of the deceased child. This is why banks won’t transfer title right away after seizing a property. In fact, in California, you aren’t even buying the property in foreclosure! You’re buying the lien! How many of you know that? This would make Trustee’s Deeds a complete sham! Why isn’t anyone attacking the validity of Trustee’s Deeds based on California law? Lack of knowledge, I suspect. Those of you reading this for the first time wouldn’t have a clue as to where to turn to next, so don’t even try.
Title companies are also risk averse and won’t allow transfer until things are “buttoned up” … or so we’ve been told. This is where more illicit document manufacturing occurs. But it gets even better because licensed operators (attorneys, law firms, notaries, debt collectors, insurance companies, title companies) are all responsible to a higher authority! Stay tuned!