SB1317sam001 101ST GENERAL ASSEMBLY

Sen. Don Harmon

Filed: 3/14/2019

10100SB1317sam001 LRB101 09891 RAB 57660 a

AMENDMENT TO SENATE BILL 1317

AMENDMENT NO. ______. Amend Senate Bill 1317 by replacing everything after the enacting clause with the following:

"Section 5. The Title Insurance Act is amended by changing Sections 3, 5, 12, 14, 14.1, 16, 18, 21, and 23 and by adding Section 18.2 as follows:

(215 ILCS 155/3) (from Ch. 73, par. 1403)

Sec. 3. As used in this Act, the words and phrases following shall have the following meanings unless the context requires otherwise:

(1) "Title insurance business" or "business of title insurance" means:

(A) Issuing as insurer or offering to issue as insurer title insurance; and

(B) Transacting or proposing to transact one or more of the following activities when conducted or performed in contemplation of or in conjunction with the issuance of title insurance;

(i) soliciting or negotiating the issuance of title insurance;

(ii) guaranteeing, warranting, or otherwise insuring the correctness of title searches for all instruments affecting titles to real property, any interest in real property, cooperative units and proprietary leases, and for all liens or charges affecting the same;

(iii) handling of escrows, settlements, or closings;

(iv) executing title insurance policies;

(v) effecting contracts of reinsurance;

(vi) abstracting, searching, or examining titles; or

(vii) issuing insured closing letters or closing protection letters;

(C) Guaranteeing, warranting, or insuring searches or examinations of title to real property or any interest in real property, with the exception of preparing an attorney's opinion of title; or

(D) Guaranteeing or warranting the status of title as to ownership of or liens on real property and personal property by any person other than the principals to the transaction; or

(E) Doing or proposing to do any business substantially equivalent to any of the activities listed in this subsection, provided that the preparation of an attorney's opinion of title pursuant to paragraph (1)(C) is not intended to be within the definition of "title insurance business" or "business of title insurance".

(1.5) "Title insurance" means insuring, guaranteeing, warranting, or indemnifying owners of real or personal property or the holders of liens or encumbrances thereon or others interested therein against loss or damage suffered by reason of liens, encumbrances upon, defects in, or the unmarketability of the title to the property; the invalidity or unenforceability of any liens or encumbrances thereon; or doing any business in substance equivalent to any of the foregoing. "Warranting" for purpose of this provision shall not include any warranty contained in instruments of encumbrance or conveyance. Title insurance is a single line form of insurance, also known as monoline. An attorney's opinion of title pursuant to paragraph (1)(C) is not intended to be within the definition of "title insurance".

(2) "Title insurance company" means any domestic company organized under the laws of this State for the purpose of conducting the business of title insurance and any title insurance company organized under the laws of another State, the District of Columbia or foreign government and authorized to transact the business of title insurance in this State.

(3) "Title insurance agent" means a person, firm, partnership, association, corporation or other legal entity licensed under this Act registered by a title insurance company and authorized by a title insurance such company to determine insurability of title in accordance with generally acceptable underwriting rules and standards in reliance on either the public records or a search package prepared from a title plant, or both, and authorized by such title insurance company in addition to do any of the following: act as an escrow agent pursuant to subsections (f), (g), and (h) of Section 16 of this Act, solicit title insurance, collect premiums, or issue title insurance commitments, policies, and endorsements of the title insurance company; provided, however, the term "title insurance agent" shall not include officers and salaried employees of any title insurance company.

(4) "Producer of title business" is any person, firm, partnership, association, corporation or other legal entity engaged in this State in the trade, business, occupation or profession of (i) buying or selling interests in real property, (ii) making loans secured by interests in real property, or (iii) acting as broker, agent, attorney, or representative of natural persons or other legal entities that buy or sell interests in real property or that lend money with such interests as security.

(5) "Associate" is any firm, association, partnership, corporation or other legal entity organized for profit in which a producer of title business is a director, officer, or partner thereof, or owner of a financial interest, as defined herein, in such entity; any legal entity that controls, is controlled by, or is under common control with a producer of title business; and any natural person or legal entity with whom a producer of title business has any agreement, arrangement, or understanding or pursues any course of conduct the purpose of which is to evade the provisions of this Act.

(6) "Financial interest" is any ownership interest, legal or beneficial, except ownership of publicly traded stock.

(7) "Refer" means to place or cause to be placed, or to exercise any power or influence over the placing of title business, whether or not the consent or approval of any other person is sought or obtained with respect to the referral.

(8) "Escrow Agent" means any title insurance company or any title insurance agent, including independent contractors of either, acting on behalf of a title insurance company, which receives deposits, in trust, of funds or documents, or both, for the purpose of effecting the sale, transfer, encumbrance or lease of real property to be held by such escrow agent until title to the real property that is the subject of the escrow is in a prescribed condition. An escrow agent conducting closings shall be subject to the provisions of paragraphs (1) through (4) of subsection (e) of Section 16 of this Act.

(9) "Independent Escrowee" means any firm, person, partnership, association, corporation or other legal entity, other than a title insurance company or a title insurance agent, which receives deposits, in trust, of funds or documents, or both, for the purpose of effecting the sale, transfer, encumbrance or lease of real property to be held by such escrowee until title to the real property that is the subject of the escrow is in a prescribed condition. Federal and State chartered banks, savings and loan associations, credit unions, mortgage bankers, banks or trust companies authorized to do business under the Illinois Corporate Fiduciary Act, licensees under the Consumer Installment Loan Act, real estate brokers licensed pursuant to the Real Estate License Act of 2000, as such Acts are now or hereafter amended, and licensed attorneys when engaged in the attorney-client relationship are exempt from the escrow provisions of this Act. "Independent Escrowee" does not include employees or independent contractors of a title insurance company or title insurance agent authorized by a title insurance company to perform closing, escrow, or settlement services.

(10) "Single risk" means the insured amount of any title insurance policy, except that where 2 or more title insurance policies are issued simultaneously covering different estates in the same real property, "single risk" means the sum of the insured amounts of all such title insurance policies. Any title insurance policy insuring a mortgage interest, a claim payment under which reduces the insured amount of a fee or leasehold title insurance policy, shall be excluded in computing the amount of a single risk to the extent that the insured amount of the mortgage title insurance policy does not exceed the insured amount of the fee or leasehold title insurance policy.

(11) "Department" means the Department of Financial and Professional Regulation.

(12) "Secretary" means the Secretary of Financial and Professional Regulation.

(13) "Insured closing letter" or "closing protection letter" means an indemnification or undertaking to a party to a real property transaction, from a principal such as a title insurance company, setting forth in writing the extent of the principal's responsibility for intentional misconduct or errors in closing the real property transaction on the part of a settlement agent, such as a title insurance agent or other settlement service provider, or an indemnification or undertaking given by a title insurance company or an independent escrowee setting forth in writing the extent of the title insurance company's or independent escrowee's responsibility to a party to a real property transaction which indemnifies the party against the intentional misconduct or errors in closing the real property transaction on the part of the title insurance company or independent escrowee and includes protection afforded pursuant to subsections (f), (g), and (h) of Section 16, Section 16.1, subsection (h) of Section 17, and Section 17.1 of this Act even if such protection is afforded by contract.

(14) "Residential real property" means a building or buildings consisting of one to 4 residential units or a residential condominium unit where at least one of the residential units or condominium units is occupied or intended to be occupied as a residence by the purchaser or borrower, or in the event that the purchaser or borrower is the trustee of a trust, by a beneficiary of that trust.

(15) "Financial institution" means any bank subject to the Illinois Banking Act, any savings and loan association subject to the Illinois Savings and Loan Act of 1985, any savings bank subject to the Savings Bank Act, any credit union subject to the Illinois Credit Union Act, and any federally chartered commercial bank, savings and loan association, savings bank, or credit union organized and operated in this State pursuant to the laws of the United States.

(Source: P.A. 100-485, eff. 9-8-17.)

(215 ILCS 155/5) (from Ch. 73, par. 1405)

Sec. 5. Certificate of authority required to engage in activities under this Act.

(a) It is unlawful for any company to engage or to continue in the business of title insurance without first procuring from the Secretary a certificate of authority stating that the company has complied with the requirements of Section 4 of this Act. An insurer that transacts any class of insurance other than title insurance anywhere in the United States is not eligible for the issuance of a certificate of authority to transact title insurance in this State nor for a renewal of a certificate of authority.

(b) It is unlawful for any person, firm, partnership, association, corporation, or other legal entity to act as or hold itself out to be a title insurance agent unless first procuring from the Secretary a certificate of authority subject to the conditions of subsection (a) of Section 16.

(Source: P.A. 94-893, eff. 6-20-06.)

(215 ILCS 155/12) (from Ch. 73, par. 1412)

Sec. 12. Examinations; compliance.

(a) The Secretary or his authorized representative shall have the power and authority, and it shall be his duty, to cause to be visited and examined annually any title insurance company doing business under this Act, and to verify and compel compliance with the provisions of law governing it.

(b) The Secretary or his authorized representative agent shall have power and authority to compel compliance with the provisions of this Act and may visit and shall, only upon the showing of good cause, require a title insurance agent or independent escrowee to make appropriate records any title insurance company to take all legal means to obtain the appropriate records of its registered agents and make them available for examination at a time and place designated by the Secretary. Expenses incurred in the course of such examinations will be the responsibility of the title insurance company. In the event that a present or former registered agent or its successor refuses or is unable to cooperate with a title insurance company in furnishing the records requested by the Secretary or his or her authorized agent, then the Secretary or his or her authorized agent shall have the power and authority to obtain those records directly from the registered agent.

(Source: P.A. 94-893, eff. 6-20-06.)

(215 ILCS 155/14) (from Ch. 73, par. 1414)

Sec. 14. Fees.

(a) Every title insurance company and every independent escrowee subject to this Act shall pay the following fees:

(1) for filing the original application for a certificate of authority and receiving the deposit required under this Act, $500;

(2) for the certificate of authority, $10;

(3) for every copy of a paper filed in the Department under this Act, $1 per folio;

(4) for affixing the seal of the Department and certifying a copy, $2; and

(5) for filing the annual statement, $50.

(b) Each title insurance company shall remit, for all of its title insurance agents subject to this Act for filing an annual registration of its agents, an amount equal to $3 for each policy issued by all of its title insurance agents in the immediately preceding calendar year.

(c) Every title insurance agent subject to this Act shall pay the following fees:

(1) for a resident of the State, filing the original application for a certification of authority and for the certificate of authority, $80;

(2) for a nonresident of the State, filing the original application for a certification of authority and for the certificate of authority, $120;

(3) for a resident and nonresident of the State, filing for renewal of a certificate, $80; and

(4) for a resident and nonresident of the State, filing for reinstatement of a lapsed certificate, $120.

(Source: P.A. 99-104, eff. 1-1-16.)

(215 ILCS 155/14.1)

Sec. 14.1. Financial Institution Fund. All moneys received by the Department of Financial and Professional Regulation under this Act shall be deposited in the Financial Institution Fund created under Section 6z-26 of the State Finance Act for expenses incurred in administering this Act.

(Source: P.A. 98-463, eff. 8-16-13.)

(215 ILCS 155/16) (from Ch. 73, par. 1416)

Sec. 16. Title insurance agents.

(a) No person, firm, partnership, association, corporation or other legal entity shall act as or hold itself out to be a title insurance agent unless it has been issued a certificate of authority by duly registered by a title insurance company with the Secretary. Every title insurance agent registration before or after the effective date of this amendatory Act of the 101st General Assembly shall satisfy the requirements for a certificate of authority under this amendatory Act of the 101st General Assembly until January 1 of the calendar year immediately following the adoption of such rules that the Secretary shall adopt as may be necessary for the administration of granting of the certificates of authority for title insurance agents under this amendatory Act of the 101st General Assembly, and until the related application is either approved or disapproved; the continued recognition of such title insurance agent registrations during this period does not relieve title insurance agents and title insurance companies of their other obligations under this Act before the effective date of this amendatory Act of the 101st General Assembly.

(b) Each application for a certificate of authority registration shall be made on a form specified by the Secretary and prepared by each title insurance agent company which the agent represents. The title insurance agent and company authorizing the agent shall retain the copy of the application and issued certificate of authority forward a copy to the Secretary.

(c) Every applicant for a certificate of authority registration, except a firm, partnership, association, limited liability company, or corporation, must be 18 years or more of age.

(1) Every applicant for a certificate of authority that is a firm, partnership, association, corporation, or other legal entity shall designate and name at least one individual who (i) has a financial or other beneficial interest in the licensee and (ii) is authorized by at least one title insurance company to determine insurability of title.

(2) Included in every application for a certificate of authority registration of a title insurance agent, including a firm, partnership, association, limited liability company, or corporation, shall be an affidavit of the applicant title insurance agent, signed and notarized in front of a notary public, affirming that the applicant and every owner, officer, director, principal, member, or manager of the applicant has never been convicted or pled guilty to any felony or misdemeanor involving a crime of theft or dishonesty or otherwise accurately disclosing any such felony or misdemeanor involving a crime of theft or dishonesty. No person who has had a conviction or pled guilty to any felony or misdemeanor involving theft or dishonesty may be registered by a title insurance agent company without a written notification to the Secretary disclosing the conviction or plea, and no such person may serve as an owner, officer, director, principal, or manager of any registered title insurance agent without the written permission of the Secretary.

(3) An applicant for a certificate of authority of a title insurance agent, including a firm, partnership, association, limited liability company, or corporation, shall include an affidavit of the applicant, signed and notarized in front of a notary public, affirming that the applicant is authorized by one or more title insurance companies to determine insurability of title, stating the title insurance company or companies with which it is authorized, and listing the individuals authorized.

(4) Every applicant shall obtain and maintain errors and omissions insurance, or its equivalent, in an amount acceptable to the title insurance company authorizing the agent, but in no event in an amount less than $250,000 per claim and an aggregate limit of $500,000 with a deductible no greater than $25,000. A title insurance company shall not provide the insurance directly or indirectly on behalf of a title insurance agent. In the event errors and omissions insurance is unavailable generally, the Department shall adopt rules for alternative methods to comply with this paragraph.

(d) A certificate of authority Registration shall be renewed on January 1 every 2 years made annually by a filing with the Secretary; supplemental filings registrations for a new agency agreement with a title insurance company agents to be added between certificate of authority renewal annual filings shall be made by the title insurance agent from time to time in the manner provided by the Secretary; certificates of authority registrations shall remain in effect unless revoked or suspended by the Secretary or voluntarily withdrawn by the title insurance agent, registrant or the title insurance agent no longer has any agency agreement with a title insurance company.

(e) Funds deposited in connection with any escrows, settlements, or closings shall be deposited in a separate fiduciary trust account or accounts in a bank or other financial institution insured by an agency of the federal government unless the instructions provide otherwise. The funds shall be the property of the person or persons entitled thereto under the provisions of the escrow, settlement, or closing and shall be segregated by escrow, settlement, or closing in the records of the escrow agent. The funds shall not be subject to any debts of the escrowee and shall be used only in accordance with the terms of the individual escrow, settlement, or closing under which the funds were accepted.

Interest received on funds deposited with the escrow agent in connection with any escrow, settlement, or closing shall be paid to the depositing party unless the instructions provide otherwise.

The escrow agent shall maintain separate records of all receipts and disbursements of escrow, settlement, or closing funds.

The escrow agent shall comply with any rules adopted by the Secretary pertaining to escrow, settlement, or closing transactions.

(f) A title insurance agent shall not act as an escrow agent in a nonresidential real property transaction where the amount of settlement funds on deposit with the escrow agent is less than $2,000,000 or in a residential real property transaction unless the title insurance agent, title insurance company, or another authorized title insurance agent has committed for the issuance of title insurance in that transaction and the title insurance agent is authorized to act as an escrow agent on behalf of the title insurance company for which the commitment for title insurance has been issued. The authorization under the preceding sentence shall be given either (1) by an agency contract with the title insurance company which contract, in compliance with the requirements set forth in subsection (g) of this Section, authorizes the title insurance agent to act as an escrow agent on behalf of the title insurance company or (2) by a closing protection letter in compliance with the requirements set forth in Section 16.1 of this Act, issued by the title insurance company to the seller, buyer, borrower, and lender. A closing protection letter shall not be issued by a title insurance agent. The provisions of this subsection (f) shall not apply to the authority of a title insurance agent to act as an escrow agent under subsection (g) of Section 17 of this Act.

(g) If an agency contract between the title insurance company and the title insurance agent is the source of the authority under subsection (f) of this Section for a title insurance agent to act as escrow agent for a real property transaction, then the agency contract shall provide for no less protection from the title insurance company to all parties to the real property transaction than the title insurance company would have provided to those parties had the title insurance company issued a closing protection letter in conformity with Section 16.1 of this Act.

(h) A title insurance company shall be liable for the acts or omissions of its title insurance agent as an escrow agent if the title insurance company has authorized the title insurance agent under subsections (f) and (g) of this Section 16 and only to the extent of the liability undertaken by the title insurance company in the agency agreement or closing protection letter. The liability, if any, of the title insurance agent to the title insurance company for acts and omissions of the title insurance agent as an escrow agent shall not be limited or otherwise modified because the title insurance company has provided closing protection to a party or parties to a real property transaction escrow, settlement, or closing. The escrow agent shall not charge a fee for protection provided by a title insurance company to parties to real property transactions under subsections (f) and (g) of this Section 16 and Section 16.1, but shall collect from the parties the fee charged by the title insurance company and shall promptly remit the fee to the title insurance company. The title insurance company may charge the parties a reasonable fee for protection provided pursuant to subsections (f) and (g) of this Section 16 and Section 16.1 and shall not pay any portion of the fee to the escrow agent. The payment of any portion of the fee to the escrow agent by the title insurance company, shall be deemed a prohibited inducement or compensation in violation of Section 24 of this Act.

(i) The Secretary shall adopt and amend such rules as may be required for the proper administration and enforcement of this Section 16 consistent with the federal Real Estate Settlement Procedures Act and Section 24 of this Act.

(Source: P.A. 98-398, eff. 1-1-14; 98-832, eff. 1-1-15; 99-104, eff. 1-1-16.)

(215 ILCS 155/18) (from Ch. 73, par. 1418)

Sec. 18. Disclosure of financial interests No referral payments; kickbacks.

(a) Application of this Section is limited to residential properties of 4 or fewer units, at least one of which units is occupied or to be occupied by an owner, legal or beneficial.

(b) No title insurance company, independent escrowee, or title insurance agent may issue a title insurance policy to, or provide services to an applicant if it knows or has reason to believe that the applicant was referred to it by any producer of title business or by any associate of such producer, where the producer, the associate, or both, have a financial interest in the title insurance company, independent escrowee, or title insurance agent to which business is referred unless the producer has disclosed to any party paying for the products or services, or his representative, the financial interest of the producer of title business or associate referring the title business and a disclosure of an estimate of those charges to be paid as described in Section 19. Such disclosure must be made in writing on forms prescribed by the Secretary prior to the time that the commitment for title insurance is issued. The title insurance company, independent escrowee, or title insurance agent shall maintain the disclosure forms for a period of 3 years.

(c) Each title insurance company, independent escrowee, and title insurance agent shall file with the Secretary, on forms prescribed by the Secretary, reports setting forth the names and addresses of those persons, if any, who have had a financial interest in the title insurance company, independent escrowee, or title insurance agent during the calendar year, who are known or reasonably believed by the title insurance company, independent escrowee, or title insurance agent to be producers of title business or associates of producers.

(1) Each title insurance company and independent escrowee shall file the report required under this subsection with its application for a certificate of authority and at any time there is a change in the information provided in the last report.

(2) Each title insurance agent shall file the report required under this subsection with its title insurance company for inclusion with its application for registration and at any time there is a change in the information provided in its last report.

(3) Each title insurance company, independent escrowee, or title insurance agent doing business on the effective date of this Act shall file the report required under this subsection within 90 days after such effective date.

(Source: P.A. 94-893, eff. 6-20-06.)

(215 ILCS 155/18.2 new)

Sec. 18.2. Title insurance rate.

(a) Rate filing requirements.

(1) Every title insurance company shall file with the Secretary every manual of classifications, rules, plans, forms, and schedules of fees and every modification of any of the foregoing relating to the rates that it proposes to use. Every such filing shall state the proposed effective date and shall indicate the character and extent of the coverage contemplated.

(2) A title insurance company may satisfy its obligations to make such filings by becoming a member of, or a subscriber to, a licensed rating organization that makes such filings and by authorizing the Secretary to accept such filings on its behalf.

(3) The Secretary shall make such review of the filings as may be necessary to carry out the provisions of this Act and either approve or disapprove a filing or any part of a filing, including the proposed effective date.

(4) Subject to the provisions of paragraphs (5) and (6) and either approval or disapproval of the Secretary, each filing shall be on file for a period of 30 days before it becomes effective. The Secretary may, upon written notice to the person making the filing within the 30-day period, extend the period no more than 30 days to enable the Secretary to complete the review of the filing. Further extensions of the waiting period may be made with the consent of the title insurance company or rating organization making the filing. Upon written application by the title insurance company or rating organization making the filing, the Secretary may authorize a filing or any part of a filing to become effective before the expiration of the waiting period or any extension.

(5) When the Secretary finds that any rate for a particular kind or class of risk cannot practicably be filed before it is used, or any contract or kind of title insurance, by reason of rarity or peculiar circumstances, does not lend itself to advance determination and filing of rates, the Secretary may permit the rates to be used without a previous filing and waiting period.

(6) A rate in excess of a filing may be used on any specific risk upon the written consent of the insured, filed with the Secretary, explaining the applicability of the rate to the specific risk; the rate becomes effective when the consent is filed.

(b) Justification for rates. A rate filing shall be accompanied by a statement of the title insurance company or rating organization making the filing setting forth the basis upon which the rate was fixed and the fees are to be computed. Any filing may be justified by:

(1) the experience or judgment of the title insurance company or rating organization making the filing;

(2) the experience of other title insurance companies or rating organizations; or

(3) any other factors that the title insurance company or rating organization deems relevant.

(c) Making of rates.

(1) In making rates, due consideration shall be given to past and prospective loss experience, to exposure to loss, to underwriting practice and judgment, to the extent appropriate, to past and prospective expenses, the expenses incurred by title insurance companies, to a reasonable margin for profit and contingencies, and to all other relevant factors both within and outside of this State.

(2) Rates shall not be inadequate or unfairly discriminatory, nor shall rates be excessive; that is, such as to permit title insurance companies to earn a greater profit, after payment of all taxes upon all income, than is necessary to enable them to earn over the years sufficient amounts to pay their actual expenses and losses arising in the conduct of their title insurance business, including the actual costs of maintaining a title plant, plus a reasonable profit.

(3) In ascertaining the estimated future earnings of title insurance companies, the Secretary shall utilize a properly weighted cross section of title insurance companies operating in this State representative of the average of normally efficiently operated title insurance companies including on a weighted basis, both title insurance companies having their own title plants, and those not operating upon the title plant system. In ascertaining what is a reasonable profit after payment of all taxes on such income, the Secretary shall give due consideration to the following matters:

(A) the average rates of profit after payment of taxes on all income earned by other industry generally;

(B) the desirability for stability of rate structure;

(C) the necessity of insuring through growth in assets in times of high business activity, the financial solvency of title insurance companies in times of economic depression; and

(D) The necessity for earning sufficient dividends on the stock of title insurance companies to induce capital to be invested in title insurance companies.

(4) The systems of expense provisions and the amount of expense charged against each class of contract or policy may vary between title insurance companies. Rates may, in the discretion of any title insurance company, be less than the cost of performing the work in the case of smaller insurances, and the excess may be charged against the larger insurances without rendering the rates unfairly discriminatory.

(d) Disapproval of filings. If the Secretary finds that the filing or a part of the filing does not meet the requirements of this Act, the Secretary shall issue an order specifying in what respects it fails to meet the requirements of this Act. If the filing or part of the filing already has become effective, the order shall also state when, within a reasonable period, such filing or part shall be deemed no longer effective. A title insurance company or rating organization shall have the right at any time to withdraw a filing or a part of the filing, subject to the provisions of subsection (f) of this Section regarding deviations. Copies of the order shall be sent to every such title insurance company and rating organization. The order shall not affect any contract or policy made or issued prior to the expiration of the period set forth in the order.

(e) Rating organizations.

(1) A corporation, an unincorporated association, a partnership, or an individual, whether located within or outside this State, may make application to the Secretary for a license as a rating organization for title insurance companies.

(A) An entity seeking a license as a rating organization shall file:

(i) a copy of its constitution, its articles of agreement or association or its certificate of incorporation, and of its bylaws, rules, and regulations governing the conduct of its business;

(ii) a list of its members and subscribers;

(iii) the name and address of a resident of this State upon whom notices or orders of the Secretary or process affecting such rating organization may be served; and

(iv) a statement of its qualifications as a rating organization.

(B) If the Secretary finds that the applicant is competent, trustworthy, and otherwise qualified to act as a rating organization, and that its constitution, articles of agreement or association or certificate of incorporation, and its bylaws, rules, and regulations governing the conduct of its business conforms to the requirements of law, the Secretary shall issue a license authorizing the applicant to act as a rating organization for title insurance. Every such application shall be granted or denied in whole or in part by the Secretary within 60 days after the date of its filing. Licenses issued under this Section shall remain in effect for 3 years unless sooner suspended or revoked by the Secretary or withdrawn by the licensee. The fee for the license shall be $25. Licenses issued under this Section may be suspended or revoked by the Secretary, after hearing upon notice, in the event the rating organization ceases to meet the requirements of this subsection.

(C) Every rating organization shall notify the Secretary promptly of every change in:

(i) its constitution, its articles of agreement or association or its certificate of incorporation, and its bylaws, rules, and regulations governing the conduct of its business;

(ii) its list of members and subscribers; and

(iii) the name and address of the resident of this State designated by it upon whom notices or orders of the Secretary or process affecting such rating organization may be served.

(2) Subject to rules adopted by the Secretary, each rating organization shall permit any title insurance company not a member to be a subscriber to its rating services. Each rating organization shall furnish its rating services without discrimination to its members and subscribers. The furnishing of rating services without discrimination to its members and subscribers, or the refusal of any rating organization to admit a title insurance company as a subscriber, shall, at the request of any subscriber or any such title insurance company, be reviewed by the Secretary at a hearing held upon at least 10 days' written notice to such rating organization and to such subscriber or title insurance company. If the Secretary finds that the actions of the rating organization were discriminatory, the Secretary shall order that such actions cease. If the rating organization fails to grant or reject an application of a title insurance company for subscribership within 30 days after it was made, the title insurance company may request a review by the Secretary as if the application had been rejected. If the Secretary finds that the title insurance company has been refused admittance to the rating organization as a subscriber without justification, the Secretary shall order the rating organization to admit the title insurance company as a subscriber. If the Secretary finds that the action of the rating organization was justified, the Secretary shall make an order affirming its action.

(3) Cooperation among rating organizations, or among rating organizations and title insurance companies, and concert of action among title insurance companies under the same general management and control in rate making or in other matters within the scope of this Act is hereby authorized, provided that the filings are subject to all the provisions of this Act that are applicable to filings generally. The Secretary may review such activities and practices and if, after a hearing, the Secretary finds that any such activity or practice is unfair or unreasonable or otherwise inconsistent with the provisions of this Act, the Secretary may issue a written order specifying in what respects such activity or practice is unfair or unreasonable or otherwise inconsistent with the provisions of this Act and requiring the discontinuance of such activity or practice.

(f) Deviations. Every member of or subscriber to a rating organization shall adhere to the filings made on its behalf by such organization, except that any title insurance company that is a member of or subscriber to a rating organization may file with the Secretary a decrease or increase to be applied to any or all elements of the fees produced by the rating system so filed for a class of title insurance that is found by the Secretary to be a proper rating unit for the application of such uniform decrease or increase, or to be applied to the rates for a particular area. Such deviation filing shall specify the basis for the modification and shall be accompanied by the data or historical pattern upon which the applicant relies. A copy of the filing and data shall be sent simultaneously to such rating organization. Any such deviation filing shall be on file for a waiting period of 30 days before it becomes effective. The Secretary shall make such review of the deviation filing as may be necessary to carry out the provisions of this Act, and either approve or disapprove the filing or any part of the filing, including the proposed effective date. Extension of the waiting period may be made in the same manner that the period is extended in the case of rate filings. Upon written application of the person making the filing, the Secretary may authorize a deviation filing or any part of the filing to become effective before the expiration of the waiting period or any extension. Deviation filings shall be subject to the provisions of subsection (d) of this Section. Each deviation shall be effective for at least one year after the date such deviation is approved unless terminated sooner with the approval of the Secretary, or in accordance with the provisions of subsection (d) of this Section.

(g) Examinations of rating organizations. The Secretary shall, at least once in 5 years, make or cause to be made an examination of a rating organization licensed under this Act in this State. The reasonable costs of the examination shall be paid by the rating organization examined upon presentation to it of a detailed account of such costs. The officers, managers, agents, and employees of the rating organization may be examined at any time under oath and shall exhibit all books, records, accounts, documents, or agreements governing its method of operation. The Secretary shall furnish 2 copies of the examination report to the organization examined and shall notify such organization that it may, within 20 days, request a hearing on the report or on any facts or recommendations contained in the report. Before filing the report for public inspection, the Secretary shall grant a hearing to the organization examined. The report of the examination, when filed for public inspection, shall be admissible in evidence in any action or proceeding brought by the Secretary against the organization examined, or its officers or agents, and shall be prima facie evidence of facts stated in the report. The Secretary may withhold the report of the examination from public inspection for such time as the Secretary may deem proper. In lieu of the examination, the Secretary may accept the report of an examination made by the title insurance supervisory official of another state pursuant to the laws of that state.

(h) Rate administration.

(1) The Secretary shall adopt reasonable rules and statistical plans, reasonably adapted to each of the rating systems on file with the Secretary, which may be modified from time to time, and which shall be used by each title insurance company in the recording and reporting of the composition of its business, its loss and countrywide expense experience and those of its title insurance underwriters in order that the experience of all title insurance companies may be made available, at least annually, in such form and detail as may be necessary to aid the Secretary in determining whether rating systems comply with the standards set forth in this Act. The rules and plans may also provide for the recording and reporting of expense experience items that are specially applicable to this State and are not susceptible of determination by a prorating of countrywide expense experience. In adopting the rules and plans, the Secretary shall give due consideration to the rating systems on file with the Secretary, and in order that the rules and plans may be as uniform as is practicable among the several states, to the rules and to form of the plans used for such rating systems in other states. The rules and plans shall not place an unreasonable burden of expense on any title insurance company. No title insurance company shall be required to record or report its expense and loss experience on a classification basis that is inconsistent with the rating system filed by it, nor shall any title insurance company be required to report its experience to any agency of which it is not a member or subscriber. The Secretary may designate one or more rating organizations or other agencies to assist the Secretary in gathering such experience and making compilations, and such compilations shall be made available, subject to reasonable rules adopted by the Secretary, to title insurance companies and rating organizations.

(2) Reasonable rules and plans may be adopted by the Secretary for the interchange of data necessary for the application of rating plans.

(3) In order to further uniform administration of rate regulatory laws, the Secretary and every title insurance company and rating organization may exchange information and experience data with title insurance supervisory officials, title insurance companies, and title insurance rating organizations in other states, and may consult with them with respect to rate making and the application of rating systems.

(4) In addition to any powers expressly enumerated in this Act, the Secretary shall have full power and authority, and it shall be their duty, to enforce and carry out by rules, orders, or otherwise the provisions of this Act and the full intent. The Secretary may adopt rules consistent with this Act as may be necessary or proper in the exercise of his or her powers or for the performance of his or her duties under this Act.

(i) False or misleading information. No person or organization shall willfully withhold information from or knowingly give false or misleading information to the Secretary, any statistical agency designated by the Secretary, any rating organization, or any title insurance company that will affect the rates or fees chargeable under this Act.

(j) Penalties.

(1) The Secretary may, if the Secretary finds that any person or organization has violated any provision of this Section, impose a penalty of not more than $500 for each such violation, but if the Secretary finds such violation to be willful, the Secretary may impose a penalty of not more than $5,000 for each such violation. Such penalties may be in addition to any other penalty provided by law.

(2) The Secretary may suspend the license of a rating organization or the certificate of authority of a title insurance company that fails to comply with an order of the Secretary within the time limited by such order, or any extension that the Secretary may grant. The Secretary shall not suspend the license of any rating organization or the certificate of authority of a title insurance company for failure to comply with an order until the time prescribed for an appeal has expired or, if an appeal has been taken, until such order has been affirmed. The Secretary may determine when a suspension of license shall become effective, and it shall remain in effect for the period fixed by the Secretary, unless the Secretary modifies or rescinds the suspension, or until the order upon which the suspension is based is modified, rescinded, or reversed.

(3) No penalty shall be imposed and no license or certificate of authority shall be suspended or revoked pursuant to this Section except upon a written order of the Secretary stating his or her findings made after a hearing held upon not less than 10 days' written notice to the holder specifying the alleged violation.

(4) All hearings provided for in this Section shall be conducted, and the decision of the Secretary on the issue or filing involved shall be rendered, in accordance with the Administrative Review Law.

(k) In all circumstances, whether involving rates filed by a rating organization or title insurance company:

(1) separate filings shall be provided for the 2 following geographic zones:

(A) Zone 1 comprising the counties of Cook, Lake, DuPage, McHenry, Kane, Will, Grundy, and Kendall; and

(B) Zone 2 comprising all other counties within the State.

The Secretary shall submit a report to the Governor and General Assembly no later than January 1, 2023 as to whether multiple zones are justified based on differences in costs between the zones.

(2) Rates shall be separated into classes based on monetary insurance ranges without distinction of commercial or residential use of the property.

(3) From the owner's policy premium, loan policy premium, and residential real property endorsement charges, which does not include closing protection letter charges, a title agent shall retain 80% and remit 20% to a title insurance company if services are performed by the title insurance agent to at least (i) determine insurability of title, which includes title examination and title clearance, and (ii) issue title insurance commitments, policies, and endorsements. For endorsement charges that are not for residential real property as defined in Section 3 of this Act, which does not include closing protection letter charges, a title agent shall retain 80% and remit 20% to a title insurance company provided the title agent is authorized pursuant to its agency contract to issue the endorsement and completes the work necessary to issue the endorsement. If the title agent is not authorized pursuant to its agency agreement to issue the endorsement and does not complete the work necessary to issue the endorsement, the title agent shall retain 0% and remit 100% of the charge to a title insurance company.

(4) Any fees charged to the parties to the transaction other than the owner's policy premium, loan policy premium, and endorsement charges shall not be retained or remitted between a title insurance company and title insurance agent, or with any other entity or individual, unless the charges are being retained or remitted in an amount directly related to services actually performed.

(5) Subject to all other provisions of this Section regarding rate filing requirements, a rate filing shall also include a specification of services to be performed for each fee intended to be charged to the parties to the transaction, which includes, but is not limited to, closing fees, escrow fees, settlement fees, closing protection letter fees subject to Section 16.1 of this Act, and like charges, and is applicable to services provided by an independent escrowee, which must similarly file a specification of services with the secretary.

(215 ILCS 155/21) (from Ch. 73, par. 1421)

Sec. 21. Regulatory action.

(a) The Secretary may refuse to grant, and may suspend or revoke, any certificate of authority, registration, or license issued pursuant to this Act or may impose a fine for a violation of this Act if he determines that the holder of or applicant for such certificate, registration, or license:

(1) has intentionally made a material misstatement or fraudulent misrepresentation in relation to a matter covered by this Act;

(2) has misappropriated or tortiously converted to its own use, or illegally withheld, monies held in a fiduciary capacity;

(3) has demonstrated untrustworthiness or incompetency in transacting the business of guaranteeing titles to real estate in such a manner as to endanger the public;

(4) has materially misrepresented the terms or conditions of contracts or agreements to which it is a party;

(5) has paid any commissions, discounts or any part of its premiums, fees or other charges to any person in violation of any State or federal law or regulations or opinion letters issued under the federal Real Estate Settlement Procedures Act of 1974;

(5.1) has accepted or referred a title order with knowledge that the order was placed in exchange for the express or implicit promise that a consumer will be referred to that provider for services;

(5.2) has given or accepted any portion of any charge made or received for the rendering of a real estate settlement service in connection with a transaction other than for services actually performed;

(5.3) has disbursed funds prior to the actual delivery of funds acceptable to the closing and settlement services agent;

(5.4) has disbursed of closing and settlement services funds before all necessary conditions of the transaction have been met;

(5.5) has paid for, furnished or offered to pay for or furnish any reward or compensation for any past, present, or future title insurance business or closing and settlement services or any other title business, including, but not limited to, the payment of a fee to an attorney for the referral of title business;

(5.6) has paid or offered to pay any fee to a producer of title business for making an inspection or appraisal of property;

(5.7) has received securities of the title insurance company, title insurance agent, or independent escrowee at prices below the normal market price, or bonds or debentures that guarantee a higher than normal interest rate, whether or not the consummation of the transaction is directly or indirectly related to the number of closing and settlement services or title orders coming to the title insurance company, title insurance agent or independent escrowee through the efforts of that person;

(5.8) has furnished to any producer of title business or associate of a producer reports containing publicly recorded information, appraisals, estimates of income production potential, information kits, or similar packages containing information about one or more parcels of real property helpful to any producer of title business without making a charge that is commensurate with the actual cost of the work performed and the material furnished; Additionally:

(A) There must be a written service agreement between a title agent and any entity providing any closing, title, or ancillary related services on behalf of a title agent. Pursuant to this written service agreement, a service fee must be charged to the title agent and paid by the title agent to the service provider. The service fee charge is in addition to any search fee charged to the title agent and cannot be added on to the charges to the seller, buyer, borrower, or lender. The charge for a service fee shall be no less than $350; and

(B) Pursuant to an agency agreement or service agreement, the cost of searches procured on behalf of the title agent must be charged to the title agent and paid by the title agent to the provider of such searches in an amount commensurate with the actual cost of the work performed and the furnished. The search fee charge is in addition to any service fee charged to the title agent and cannot be added on to the charges to the seller, buyer, borrower, or lender.

(5.9) has made or guaranteed or has offered to make or guarantee, either directly or indirectly, any loan to any producer of title business or associate of a producer with terms more favorable than otherwise available to the producer;

(5.10) has guaranteed, or offered to guarantee the proper performance of closing and settlement services or undertakings that are to be performed by any producer of title business, except as authorized pursuant to Section 16 and 16.1 of this Act;

(5.11) has provided, or offered to provide, either directly or indirectly, a compensating balance or deposit in a lending institution either for the express or implied purpose of influencing the placement or channeling of title insurance business by the lending institution; this provision does not prohibit the maintenance by a title insurance company, title agent, or independent escrowee of demand deposits or escrow deposits that are reasonably necessary for use in the ordinary course of the business of the title insurance company, title agent, or independent escrowee;

(5.12) has paid for or offered to pay for the fees or charges of an outside professional, such as an attorney, engineer, appraiser, or surveyor, whose services are required by any producer of title business to structure or complete a particular transaction;

(5.13) has provided or offered to provide non-title services, such as computerized bookkeeping, forms management, computer programming, or any similar benefit, without a charge that is commensurate with the actual cost to any producer of title business or to any associate of a producer of title business;

(5.14) has furnished, or offered to furnish all or any part of the time or productive effort of any employee of the title insurance company, title insurance agent, or independent escrowee, such as office manager, escrow officer, secretary, clerk, or messenger, to any producer of the title business or associate of a producer of title business;

(5.15) has paid for or offered to pay for all or any part of the salary of an employee of any producer of title business;

(5.16) was paid for or offered to pay for the salary or any part of the salary of a relative of any producer of title business if that payment is in excess of the reasonable value of work performed by the relative on behalf of the title insurance company, title insurance agent or independent escrowee;

(5.17) has paid for or offered to pay for services by any producer of title business that are ordinarily to be performed by the producer of title business in his or her licensed capacity as a real estate or mortgage broker or salesman or agent;

(5.18) has furnished or offered to furnish, or paid for or offered to pay for, furniture, office supplies, telephones, facsimile machines, equipment, or automobiles to any producer of title business, or has paid for or offered to pay for any portion of the cost of renting, leasing, operating or maintaining any of these items;

(5.19) has paid for, furnished, or waived, or offered to pay for, furnish, or waive all or any part of the rent for space occupied by any producer of title business;

(5.20) has rented or offered to rent space from any producer of title business, regardless of the purpose, at a rent that is excessive when compared with rents for comparable space in the geographic area, or has paid or offered to pay rent based in whole or in part on the volume of business generated by any producer of title business;

(5.21) has paid for or offered to pay for gifts, vacations, business trips, convention expenses, travel expenses, membership fees, registration fees, lodging, or meals on behalf of a producer of title insurance, directly or indirectly, or supplied letters of credit, credit cards, or any such benefits;

(5.22) has paid for or offered to pay for the cancellation fee for a title report or other fee on behalf of any producer of title business either before or after inducing the producer of title business to cancel an order with another title insurance company, title insurance agent, or independent escrowee;

(5.23) has paid for, furnished, or offered to pay for or furnish any business form to any producer of title business, other than a form regularly used in the conduct of the title insurance company's business, that is furnished for the convenience of the title insurance company and does not constitute a direct monetary benefit to any producer of title business;

(5.24) has given trading stamps, cash redemption coupons, or similar items to any producer of title business;

(6) has failed to comply with the deposit and reserve requirements of this Act or any other requirements of this Act;

(7) has committed fraud or misrepresentation in applying for or procuring any certificate of authority, registration, or license issued pursuant to this Act;

(8) has a conviction or plea of guilty or plea of nolo contendere in this State or any other jurisdiction to (i) any felony or (ii) a misdemeanor, an essential element of which is dishonesty or fraud or larceny, embezzlement, or obtaining money, property, or credit by false pretenses or by means of a confidence game;

(9) has been disciplined by another state, the District of Columbia, a territory, foreign nation, a governmental agency, or any entity authorized to impose discipline if at least one of the grounds for that discipline is the same as or equivalent to one of the grounds for which a title insurance company, title insurance agent, or independent escrowee may be disciplined under this Act or if at least one of the grounds for that discipline involves dishonesty; a certified copy of the record of the action by the other state or jurisdiction shall be prima facie evidence thereof;

(10) has advertising that is inaccurate, misleading, or contrary to the provisions of this Act;

(11) has knowingly and willfully made any substantial misrepresentation or untruthful advertising;

(12) has made any false promises of a character likely to influence, persuade, or induce;

(13) has knowingly failed to account for or remit any money or documents coming into the possession of a title insurance company, title insurance agent, or independent escrowee that belong to others;

(14) has engaged in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public;

(15) has violated the terms of a disciplinary order issued by the Department;

(16) has disregarded or violated any provision of this Act or the published rules adopted by the Department to enforce this Act or has aided or abetted any individual, partnership, registered limited liability partnership, limited liability company, or corporation in disregarding any provision of this Act or the published rules; or

(17) has acted as a title insurance company, title insurance agent, or independent escrowee without a certificate of authority, registration, or license after the title insurance company, title insurance agent, or independent escrowee's certificate of authority, registration, or license was inoperative.

(a-1) Nothing in subsection (a) shall be construed as prohibiting:

(1) publishing or printing and disseminating any educational information, notwithstanding that the information may be of benefit to a producer of title business;

(2) distributing information, whether printed or oral, advertising novelties, and gift items not to exceed $25 in value that bear the name of the giver (but not the name of the recipient) to producers of title business;

(3) providing reasonable promotional and educational activities that are not conditioned on the referral of business and that do not involve the defraying of expenses that otherwise would be incurred by persons in a position to refer settlement services or business incident to those services, such as a reception by a title company, seminars on title matters offered to professionals, furnishing property descriptions and names of record owners without charge to lenders, real estate brokers, attorneys, or others, or distribution of calendars and other promotional material that do not exceed $25 in value;

(4) the payment of a fee:

(A) that bears a reasonable relationship to the value of the services rendered or performed:

(i) by any person or party to attorneys at law for services actually rendered;

(ii) by a title company to its duly appointed agent for services actually performed in the issuance of a policy of title insurance; or

(iii) by a lender to its duly appointed agent for services actually performed in the making of a loan; and

(B) to a settlement service provider for services outside of the normal scope of that provider's services to the parties to the transaction;

(5) the payment of a bona fide salary or compensation or other payment for goods or facilities actually furnished or for services actually performed, so long as the salary, compensation, or other payment bears a reasonable relationship to the value of the services, goods, or facilities;

(6) proportionate returns on an ownership or franchise interest;

(7) ordinary and customary business entertainment or promotional activities with reasonable frequency not to exceed $100 in value per person, per event by title insurance companies, title insurance agents, or independent escrowees that are not directly or indirectly consideration as an inducement or compensation for the referral of title business or for the referral of any escrow or other service from a title insurance company, title insurance agent, or independent escrowee.

(b) In every case where a registration or certificate is suspended or revoked, or an application for a registration or certificate or renewal thereof is refused, the Secretary shall serve notice of his action, including a statement of the reasons for his action, as provided by this Act. When a notice of suspension or revocation of a certificate of authority is given to a title insurance company, the Secretary shall also notify all the registered agents of that title insurance company of the Secretary's action.

(c) In the case of a refusal to issue or renew a certificate or accept a registration, the applicant or registrant may request in writing, within 30 days after the date of service, a hearing. In the case of a refusal to renew, the expiring registration or certificate shall be deemed to continue in force until 30 days after the service of the notice of refusal to renew, or if a hearing is requested during that period, until a final order is entered pursuant to such hearing.

(d) The suspension or revocation of a registration or certificate shall take effect upon service of notice thereof. The holder of any such suspended registration or certificate may request in writing, within 30 days of such service, a hearing.

(e) In cases of suspension or revocation of registration pursuant to subsection (a), the Secretary may, in the public interest, issue an order of suspension or revocation which shall take effect upon service of notification thereof. Such order shall become final 60 days from the date of service unless the registrant requests in writing, within such 60 days, a formal hearing thereon. In the event a hearing is requested, the order shall remain temporary until a final order is entered pursuant to such hearing.

(f) Hearing shall be held at such time and place as may be designated by the Secretary either in the City of Springfield, the City of Chicago, or in the county in which the principal business office of the affected registrant or certificate holder is located.

(g) The suspension or revocation of a registration or certificate or the refusal to issue or renew a registration or certificate shall not in any way limit or terminate the responsibilities of any registrant or certificate holder arising under any policy or contract of title insurance to which it is a party. No new contract or policy of title insurance may be issued, nor may any existing policy or contract to title insurance be renewed by any registrant or certificate holder during any period of suspension or revocation of a registration or certificate.

(h) The Secretary may issue a cease and desist order to a title insurance company, agent, or other entity doing business without the required license or registration, when in the opinion of the Secretary, the company, agent, or other entity is violating or is about to violate any provision of this Act or any law or of any rule or condition imposed in writing by the Department.

The Secretary may issue the cease and desist order without notice and before a hearing.

The Secretary shall have the authority to prescribe rules for the administration of this Section.

If it is determined that the Secretary had the authority to issue the cease and desist order, he may issue such orders as may be reasonably necessary to correct, eliminate or remedy such conduct.

Any person or company subject to an order pursuant to this Section is entitled to judicial review of the order in accordance with the provisions of the Administrative Review Law.

The powers vested in the Secretary by this Section are additional to any and all other powers and remedies vested in the Secretary by law, and nothing in this Section shall be construed as requiring that the Secretary shall employ the powers conferred in this Section instead of or as a condition precedent to the exercise of any other power or remedy vested in the Secretary.

(Source: P.A. 98-398, eff. 1-1-14.)

(215 ILCS 155/23) (from Ch. 73, par. 1423)

Sec. 23. Violation; penalties; actual damages; injunctive relief.

(a) Any violation of any of the provisions of this Act and, beginning January 1, 2013, any violation of any of the provisions of Article 3 of the Residential Real Property Disclosure Act shall constitute a business offense and shall subject the party violating the same to a penalty of $1000 for each offense.

(b) A violation of paragraphs (5.1) through (5.24) of subsection (a) of Section 21 is a Class A misdemeanor.

(c) A person who violates the prohibitions or limitations of subsection (a) of Section 21 shall be liable to the person or persons charged for the settlement service involved in the violation for actual damages.

(d) A title insurance company, a title insurance agent, or a independent escrowee who violates the prohibitions or limitations of subsection (a) of Section 21 shall be subject to injunctive relief. If a permanent injunction is granted, the court may award actual damages. Reasonable attorney's fees and costs may be awarded to the prevailing party.

(e) (b) Nothing contained in this Section shall affect the right of the Secretary to revoke or suspend a title insurance company's, title insurance agent's, or independent escrowee's certificate of authority or a title insurance agent's registration under any other Section of this Act.

(Source: P.A. 97-891, eff. 8-3-12.)

(215 ILCS 155/19 rep.)

(215 ILCS 155/24 rep.)

(215 ILCS 155/25 rep.)

Section 10. The Title Insurance Act is amended by repealing Sections 19, 24, and 25.

Section 99. Effective date. This Act takes effect upon becoming law, except that Section 18.2 of the Title Insurance Act take effect September 1, 2020.".