[WSBARP] Title company complaint

[Nestor Gorfinkel]

I can't help much, but from my former life as a litigator last century (literally), I believe since Fidelity steps via subrogation into the shoes of the Buyer, you can raise the defense of payment and or accord and satisfaction. Not only that but bring in the Buyer into the festivities as a third-party defendant or via a counterclaim (not sure which one would apply).

Cordially,

Nestor Gorfinkel, Attorney at Law
Licensed in Florida & Washington State
Florida Civil-Law (International) Notary

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Jonathan Smith
Sent: Wednesday, September 4, 2024 8:01 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Title company complaint

Hello,

I do not normally take any litigation cases and I just to bankruptcy, but with almost zero bankruptcy business during the pandemic, I ended up getting involved in a case defending against Fidelity National Title to survive. The short version is my client owned a home. Years before, the neighbor asserted a claim to a portion of his property. No case was filed. My client disagreed. He had a survey done and provided a copy to the neighbor and his attorney showing that the line was correct, and the neighbor did not have a claim. Nothing more was heard from the neighbor, so the issue seemed to be taken care of at that point. Several years later, my client puts his home on the market and it quickly sells. The form 17 does not indicate a boundary line dispute as he thought the issue was resolved.

A few days before closing, the neighbor starts to mark off a fence line on my client's property. The new buyers see this, and the old issue is now front and center. My client informs the agents of the past dispute, they say "not a problem" but my client offers, and the neighbor accepts $4,000 payment from the seller (directly outside the transaction) for the inconvenience of this issue coming up just before closing. The buyer accepts the payment and cashes the check one day prior to closing. I provided proof of this along with emails discussing the issue with the agents. The sale closes on time.

At some point, the buyer turns the issue over to his title insurance company presumably claiming he purchase with no idea of the issue and it not being in the form 17.  It is unclear to my client how the situation was resolved but Fidelity is now suing my client for $26,000 for either 1) failing to disclose and or 2) failing to defend the statutory warranty deed. I have provided proof that they buyer had actual knowledge of the situation prior to closing and accepted $4,000 for his troubles and Fidelity has no proof that they subsequently tendered the defense of the statutory warranty deed to my client. My understanding that tender is still required in Washington State? Currently, I am looking for some assistance with this situation and interrogatories to dig into the issues as well.

Again, I don't normally do litigation and kind of just fell into this and need some help with this situation. Thank you for any help or advice.

Jonathan Smith
Attorney at Law
(425)452-9797 Tel
(425)440-7681 Fax

[Logo for email]<http://advantagelegalgroup.com/>
12207 NE  8th Street
Bellevue, WA 98005

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