Monday, October 8, 2018

Contractor Fraud on the Rise: What You Need to Know

Contractors in the construction market make up a large portion of the overall employment statistics for the industry. There are more than six million employees who work in construction industry each year across an estimated 650,000 employers, many of which represent themselves as independent contractors. Without construction contractors, many residential and commercial projects would remain unfinished. However, not all contractors in the construction industry are created equal.

In a recent case brought in Washington, D.C., an individual home improvement contractor was found guilty of defrauding customers and avoiding personal and business creditors through misleading statements in bankruptcy court. The case found that the contractor neither had the skills nor the intention to complete the projects he was paid to do, leaving homeowners with significant financial loss. More and more of these cases are brought to light, even for contractors with the right licensing and bonding requirements in place. As contractor fraud continues to rise, it is important for homeowners to recognize the common types of fraud and warning signs.

Common Types of Fraud

Construction contractor fraud comes in many forms which makes it difficult to spot from the start. However, the most common types of fraud include the following:

Fraudulent billing schemes – some contractors make up payments to suppliers and vendors on paper and pocket the funds, while others charge an excessive amount for materials or equipment.

Theft – contractor theft can be costly and it is fairly common in the industry. Contractors can take materials and supplies paid for by the customer that are difficult to track down or to recoup after the fact.

Equipment use – tools, construction equipment, and vehicles may all be abused or used for personal gain instead of the job at hand, leading to higher costs over time.

Any combination of these common fraud types may be a challenge to see as a project progresses. This makes it difficult for homeowners and small businesses to know that they are being taken advantage of until after the work is completed. The worst types of fraud involve a contractor promising to complete a job but instead, taking the deposit/payment and never looking back. Individuals in need of a construction contractor can look to the possible warning signs below to help protect against fraud.

Warning Signs

Construction contractors who ask for a large upfront payment, in full, should signal a red flag for homeowners and business owners. In many cases, receiving full payment for a new project gives little to no incentive for bad actors to come back and complete the job, and if they do, it may not be up to building standards. In addition to receiving large upfront payments, contractors without the appropriate licensing through the state or county, or the right type of surety bond in place should not be hired for a project. Surety bonds are required for nearly many large construction contracts, and the price paid for having this peace of mind in place is minimal for most. Contractors who are unwilling to provide these details should not be trusted.

Additionally, contractors who do not present the customer with a written contract to sign before starting a new project may require more review. A contract helps protect both the customer and the contractor, and without one, there is no proof that a job was agreed upon or what the project actually entails. Finally, contractors who fail to provide references from satisfied customers or those who have little to no online presence or business location may not be trustworthy.

Protecting Your Investment

Homeowners and business owners can take certain steps to protect their investment in a construction contractor, starting with understanding common fraud types and the warning signs mentioned above. A contractor should be willing and able to provide documentation of licensing, bonding, and insurance, as well as references from past customers or online reviews. If these items are not readily available, check with the state or county’s licensing board to see if a contractor is listed. If he or she is nowhere to be found, or represents they have a license when they do not, may mean there is no intention of completing the work requested.

Take care to select a contractor that checks the right boxes before making any  payment, and keep an eye on the progression of work as agreed upon in the contract. These small actions can make a significant difference in getting a construction job done correctly and in-budget.

Author: Eric Weisbrot is the Chief Marketing Officer of JW Surety Bonds. With years of experience in the surety industry under several different roles within the company, he is also a contributing author to the surety bond blog.  


Wednesday, April 25, 2018

Palm Beach Post one-sided attack on title insurance continues

       In an article nominally addressing the possible merger of two large title companies (https://tinyurl.com/yd5p3ew7 April 14, 2018) the post took the opportunity to again lambaste the cost of title insurance.  here is my letter to the editor which the Post has so far refused to run:


Dear Editor:

          I read with dismay Craig Elmore’s piece in April 14, 2018 Post about the merger between Fidelity National Financial and Stewart Title.  Instead of addressing the issues that the merger may cause, the main thrust of the article is to lambast the cost of title insurance in a one-sided rant replete with mistakes and misstatements.

          First Elmore claims it is, “It’s a kind of insurance designed to defend and compensate buyers and lenders in case of challenges to the title ownership, involving records that show who has rightful legal claim to the property.”  That is only one thing title insurance insures for under the policy.  It also provides coverage for unpaid liens, assessments, missed mortgages and mistakes (deeds with missing witnesses, errors in abstracting, etc.).  Also, title insurance does not simply wait for challenges but will affirmatively take action to fix issues when discovered by either filing suit or paying compensation.

          Elmore also states that shopping around is fruitless because no simple task to locate dramatic price differences, as title insurers wearing a whole raft of different brand names operate in a handful of corporate “families,” implying that underwriter’s set prices for title premiums.  This is simply false in Florida.  Prices are set by the Florida Department of Insurance, and these fixed premiums have fallen over 30% against inflation in the last 25 years.  Local title agents will compete on price and may Realtor shop closings to save their customers hundreds of dollars.

          Premiums are rising because the economy is doing better plus prices have recovered from there dramatic drops, not because the costs of coverage has increased.  In fact premiums have not increased at all since 2011 (or in fact since 1994 in Florida).

          Comparing loss ratios for title insurance to casualty insurance is also without merit.  Buy a home and pay a one-time title premium for lifetime coverage, or pay more than that per year to cover casualty insurance.  They are simply not equivalent coverages.

          The claim of the CFA about “huge kickbacks, expensive gifts, and other inducements from the insurers to real estate professionals” is simply not true for the most part.  These activities are illegal in residential real estate with federally insured loans, and has had no effect or premiums to “raise the price of title insurance to “absurdly high levels.” 

          Elmore’s last fallback is to tout Iowa’s low costs for coverage.  What he fails to state is that Iowa has a government run not-for-profit company that issues policies.  I am sure if Florida took over FP&L and ran it as a not for profit, our electric bills would be cheaper too.  What Elmore fails to mention is that if losses exceed revenue, the taxpayers of Iowa must cover the difference.  He also fails to mention that to get that cheap $110 policy, one must hire an abstracter to abstract title and an attorney to issue a title opinion.  Abstracts in Iowa costs about $350 and up, (versus $75-125 in Florida) and title opinions prices vary by attorney.

          This is the second time the Post has run a one-sided article about title insurance.  This type of coverage belongs in the editorial section, not as unbiased business news reporting.

Thursday, January 11, 2018

Home Title Lock/Property Fraud

     If you listen to the radio you probably have heard an ominous radio advertisement about thieves taking title to your home, refinancing the mortgage and leaving you to suffer when the mortgage is not paid, resulting in you being served as the unknown tenant in the bank’s foreclosure.  The advertisement then offers to protect you by monitoring your property title for only $9.99 per month.  Their tag line is “Title Insurance Doesn't Protect You and Neither Does Your Bank or Identity Theft Protection. HOME TITLE LOCK DOES!”

     According to the FBI, property and mortgage fraud is the fastest growing white-collar crime in the United States. The threat described above is real and I have been involved in property fraud cases in the past.  These usually involved sophisticated parties with knowledge of deeds, recordings and the like, and the willingness to steal notary seals and alter corporate records.  The game has now changed due to online records and images, high quality printers and e-recording.  My most recent property theft case was against a lender who had foreclosed a property in 2014 that sat vacant for two years.  Thieves simply created a deed template, used Photoshop to insert a real signatures and notary stamp from prior recorded deeds in New Jersey on the Florida forgery, added a few fake unintelligible witnesses and then slipped a clerk at a title company a few dollars to e-record the deed. 

     The thieves used a fake title company name as the deed preparer, and a fake trust name as the new owner, without naming an actual Trustee (which is required to have a valid grantee/buyer in Florida as Trusts alone cannot hold title under Florida law).  Since the property had been foreclosed, it was free and clear of liens and mortgages, and the deed forger could have easily obtained a loan secured by the property.  Alternatively, and the more common criminal act, is the deed forger uses the deed to take physical control of the property, acting as landlord to rent the home while its true owner thinks it is vacant, waiting for a future sale.

    The forgery was discovered by the new owner who purchased the house days after the forged deed was recorded.  She was denied homestead, made a claim on her title policy and we successfully filed suit to quiet title.  The cost was paid by the title company because the forged deed was recorded before her insured deed.  However, if this happens to you after your deed is recorded, your title insurance owner’s policy will not insure the title claim, forcing you to have to cover the cost of any lawsuit to correct the defect.
   
   Home Title Lock is a for profit company that claims to protect your title for only $9.99 per month.  Essentially they monitor the title to you property by searching public records for any changes, such as any newly filed deeds, mortgages or liens.  They claim that they use “proprietary technology (that) forms a virtual perimeter around your home and property title.”  If an instrument is recorded, they claim they “ALERT you immediately with key information such as names involved with the transaction, the amount of loan, date of such loan, (and sic) document name.”  They also claim that if a detected activity is not authorized to “mobilize all our resources to help you shut it down - FAST!”  However, the website provides no documentation on this last element, which would normally require local legal assistance and a high legal cost. 

    Alternatively you have two other free options that you can use to protect the title to your property.  The easiest approach is to simply act as your own monitor of title by searching the public records to see if any changes have occurred.  All counties in Florida maintain a name index which is accessible online (Using www.tinyurl as a prefix: Palm Beach: qejqo; Broward: ycmj9fce; and Miami-Dade: ybzr6xds).  Simply search your name to determine if anyone has tried to file a deed or lien using your name as a forgery.  A ninety day search of my own name showed a deed, notice and mortgage (but not any of my own property), so no issues.
         
   An alternative offered by some County Clerks of Court is a Property Fraud Alert registry.  Palm Beach County (tinyurl.com/ya9m766b) allows owners to register to receive free alerts when a document such as a deed or mortgage is recorded with the clerk using your name or business name.  Sign-up is a one page application that simply requests your name and whether you wish to be contacted by phone or email. 

  Being vigilant regarding your most valuable possession is the only way to protect yourself from this growing problem.  Monitor your title, register for fraud alerts, petition your local county to offer this service if not yet available, and take quick action if anything is recorded.  To be forewarned is to be forearmed, and in this battle, that is the real key.

Michael J Posner, Esq., is a partner in Ward Damon a mid-sized real estate and business oriented law firm serving all of South Florida, with offices in Palm Beach County.  They specialize in real estate and can assist owners in addressing title fraud issues.  They can be reached at 561.594.1452, or at mjposner@warddamon.com