Tag: attorneynegligence

Successful Risk Management Requires Proper Top-Down Governance

Written by Andrew Liput on . Posted in Secure Insight Blog. Leave a Comment

Any organization seeking to adopt appropriate operational risk management policies and procedures must ensure that they have met the five step process to ensure success.  This process focuses on proper governance.  It is not enough to simply “check the box” and hope that wire fraud, mortgage fraud and closing fraud never reach the organization.

The first step is LEADERSHIP BUY-IN.  Unless the “C Suite” decides to make risk management a priority no effective tools or policies will succeed.  There must be top down leadership in this area.  If your chief risk officer (CRO) or chief security officer (CSO) have to “push” their agenda, then the organization is in trouble.  Effective leadership is not only embracing the issue though, it also means effectively communicating it throughout the organization so that even the receptionist and the part-time employees know where you stand on the issue.

The second step is DEFINED HEAD OF COMPLIANCE.  Someone must be placed in charge.  Studies show that management by committee on risk issues results in failure.  Decide who is in charge  and let them manage with minimal interference.

The third step is ORGANIZATIONAL CULTURE.  As mentioned above, everyone has to buy into the  importance of risk and the method chosen to manage the risk.  Frequently in the mortgage industry sales and operations staff push back on risk management and compliance rules and tools because they are viewed as “disruptive” to their departmental goals (more sales, quick closings).  Without the buy-in of these departments measures to address risk of fraud and cyber crimes will not be successful.  Attitudes and behaviors must fall into line with processes and procedures.

The fourth step is CLEAR PROCESSES AND PROCEDURES.  Putting a process into place or using a tool only works if you go beyond the simple framework itself and successfully implement them.  We have seen lenders engage a tool or service and then never use it or only use it occasionally, without any clear policy directives.  Beyond implementation is testing and oversight.  Someone must be regularly making sure that your risk management tools actually work.

The fifth and last step is having a RESPONSE PLAN.  This is important to understand: No risk management tool or policy is foolproof. When an event occurs, whether a cyber breach, wire fraud or other loss, how you react, how quickly you react, and how you learn from the event can be more important than the event itself.  More than one lender recently has found that reputation risk and litigation risk arise when an organization fails to properly react following an event.

The last point to make is that cyber risk and fraud risk must be an “untouchable” line item in your operating budget.  Addressing these issues cannot be the “last in, first out” business decision we see too often.  When business is down, the risk of harm is GREATER because you do not have the economic cushion to absorb a loss. Good leaders, who manage an effective top-down process and set the proper tone about operational risk will not sacrifice protective tools and policies at the first sign of a market slow down.

We spent 12 years studying closing table risk, including 5 years working with risk analysts at Lloyds. Our closing table risk management tool is designed to meet your operational needs, with little disruption, while providing effective management of the risk of loss from cyber crimes that evolve in wire fraud, and all manner of closing and title fraud.  If you are a business leader concerned about closing table risk, please reach out and ask us how we can provide a solution you and your risk team will embrace.

 

 

When a Closing Attorney’s E&O Policy is not Actually Insurance and Why a Lender Should Care

Written by Andrew Liput on . Posted in Secure Insight Blog. Leave a Comment

If you are merely collecting a “Certificate of Coverage” on behalf of a closing attorney and passing them through your loan process as meeting your internal risk management protocols you may be in for an unpleasant surprise if a claim arises.

At Secure Insight we do more than collect insurance certificates, we review policies and validate coverage and payment directly at the source: the insurance agency or insurer where the policy originated.  We ask important questions about the validity and extend of coverage, and exclusions, because in the event of an incident a lender needs to know they can offset risk by filing a claim that will be processed and paid under a valid policy of insurance.

Recently we have discovered a rise in offshore, low cost risk-shared E&O coverage plans.  These companies and policies are designed to exploit the high cost nature of E&O for real estate attorneys and other professionals by offering ridiculously low fees for coverage. Notice I said “coverage” and “fees” and not “insurance” and “premiums.”  That is because these policies are not traditional insurance and are likely not worth the paper on which they are written.

Risk sharing groups in the E&O space are based upon the concept of cooperative pooled risk arrangements.  The idea, which has found success in the health insurance area, relies upon the pooling of all plan participant fees to cover expected losses from claims.  The problems with this arrangement  in the E&O space are numerous.

First, the plan is not an insurance product, and therefore is not governed by insurance laws or regulators.  It is not filed or supervised in the United States.  Second, the companies arranging these risk sharing pools are inevitably based outside the legal jurisdiction of the United States making the enforcement of any lawful claim highly improbable and definitely costly.  We are talking Belize by the way, not Canada, by way of example.  Third these companies have no obligation to publish financials or provide any accounting of the fees being collected and supposedly held in a risk pool for the payment of claims.  Fourth, the policies of coverage (they cannot use terms such as insurance and deductible) usually limit the covering company’s obligations significantly.  One policy issued in Belize that I reviewed recently denied any obligation to defend a covered attorney in the event of a lawsuit and created a right on their part to access the attorneys personal and bank records, tax returns, finances and assets so they can recover their losses directly from the covered party!

It appears many attorneys and others are being misled into believing that they can actually receive $2 Million in aggregate insurance coverage for $400 annually rather than $4,000 annually and they will meet their own risk needs and those of their counter-parties in the mortgage industry.  This is certainly not the case.

At Secure Insight we do more than just collect documents, we do real analysis, assign risk ratings, and monitor risk 24/7.  Reviewing E&O “coverage” is just one way we accomplish that and ensure that our lender clients have a real source to offset potential losses and not one that looks like insurance but is really something else.

To our attorney friends: buyer beware!  As my mother used to say, “If it appears too good to be true it usually is dear.”

New Attorney E & O Exclusion Exposes Lender Closing Table Risk in Massachusetts

Written by Andrew Liput on . Posted in Secure Insight Blog. Leave a Comment

We have noticed that in Massachusetts, insurance carriers providing attorney errors and omissions coverage have been quietly adding a new exclusion to their new and renewal policies.  This exclusion is known as the “Disbursement of Funds” exclusion, and it creates enhanced risk for lenders in that state in the event an attorney fails to properly disburse funds.  Any “negligence” in this regard will not be covered as it had been traditionally in the past.

The exclusion reads as follows:

“The following acts are EXCLUDED from coverage under this policy: the disbursement or transfer of funds related to (a) the deposit of a counterfeit check or a check with insufficient funds; (b) the lack of a written verification from the issuing bank that the funds are available and valid, (c) a fraudulent scheme, or (d) the failure of any funds reaching the proper party or the intended recipient, for any reason.”

In a discussion with a Massachusetts agent we learned that some insurers are doing this because (i) the cost of wire fraud is becoming unbearable for them and (ii) they want to push attorneys to pay for cyber liability coverage which would help cover some (but not all) of the risk now being excluded.  Cyber coverage is not mandated for attorneys in Massachusetts.

The problem for lenders is that this new exclusion means that there is NO COVERAGE they can attach for reimbursement for a claim where an attorney disburses funds before a deposited check clears (which occurs far too often) or where an attorney fails to follow the closing instructions and disburses the proceeds to the wrong party or in the wrong amount.  Although these acts/omissions rise to the level of negligence, with this new exclusion there will be no coverage.

At Secure Insight we are encouraging attorneys in Massachusetts whom we monitor to acquire cyber liability coverage and also to certify to the adoption of internal policies and practices avoiding the risks inherent in the excluded matters.

As always, it is critical to keep abreast of all changes in all matters which may affect your mortgage lending business.  At Secure Insight we are watching for you, 24-7, 365 days a year to help prevent losses from title and closing fraud.

Stay vigilant and stay clear of fraud!