Presidents Report

Dear ILTA Members,
As I reflect back on my journey in this industry I have become acquainted with great men and women who have befriended me, mentored me, and broadened my perspectives and understand-ing. This is, without a doubt, one of the greatest aspects of this business that I love – it really is all about people helping people! It is this thought I want to focus and share my perspectives.

Over the past few years, our industry has experienced huge amounts of change of which every aspect of our day-to-day routines and business practices have been impacted – from the way we communicate, how we handle information, to how we deliver our products and services. To say the least, the road we have all traveled has been painful at times, albeit, emerging as better versions of ourselves – better at understanding our products and explaining the value they provide to our customers, enhanced capabilities through the development of new tools and resources, and more united as an industry.

To take full advantage of the changes we have experienced, and undoubtedly will continue to ex-perience, it is imperative we constantly seek ways to expand our individual and collective perspec-tives. In Stephen Covey’s book The 7 Habits of Highly Effective People he postulates the most effective way we can expand our perspectives is through rich visualization of the desired end re-sult. In this, he counsels to involve as many emotions, feelings, and senses as possible in order to gain the deep, unwavering commitment that is needed to consistently reach the desired goal. Dr. Charles Garfield, a noteworthy mathematician and psychologist, has done extensive research on peak performers. One of the main outcomes of his research on this group is that they are all very good visualizers, meaning “…they see it; they feel it; they experience it before they actually do it.”
I am grateful for the visualizers whom I have had the pleasure of crossing paths with that have not only had the vision of where they wanted to go, but have helped me create my own vision. Some of these individuals are and/or have been part of the leadership of the ILTA. As I joined the IL-TA board in 2014 Quinn Stufflebeam was the incoming President and he shared his vision of providing increased educational opportunities for our membership, thus beginning our quest to find and create these opportunities. During their presidencies, Cindy Guanell and JT Jacobsen created scholarships and expanded the types and quality of education that has been delivered at the association’s Spring Education Seminars. The next big advancement has come through the efforts and vision of John Holt who is our Executive Director – the Idaho Title Professional des-ignation. As an association, we are very excited to now offer a program which provides a format for land title professionals in Idaho to demonstrate their knowledge, experience, efficiency in, and dedication to, the land title industry. The ITP represents a measure of achievement and commit-ment to career development. As a board, we believe there are many industry professionals who are eligible for and deserve the recognition and prestige associated with the ITP designation. John has begun communicating this new program through the July 2017 Liaison meeting minutes. More information, along with the application, will be posted on the ILTA website in the coming weeks.

I want to challenge each member of the ILTA to integrate this new opportunity as part of your individual and organizational visualization processes and use it to not only progress toward your current goals, but to help you reach the pinnacle of your desired end result.
Best wishes in your journey!

Daryl Olsen, 2017-2018 ILTA President

2017 Business Meeting Minutes, President’s Report & Committee Reports
The Business Meeting at the annual convention was called to order and conducted by JT Jacobsen. A summary of the minutes is as follows:

  • 2016 Business Minutes were reviewed and approved.
  • Financial summary was reviewed and approved.

JT presented the President’s Report summarizing the year’s highlights:

  • ILTA successfully operated within a balanced budget.
  • Membership remained steady with 133 members consisting of 108 agents; 16 associates and 9 underwriters.
  • Held 12 scheduled Board & Liaison Committee Meetings with the membership and the Department of Insurance in which we covered or discussed DOI related issues, legislative matters, case law review and other topics.
  • Diversified location of Liaison meetings to include at the DOI and lobbyist’s office and increased the number of conference call availability for attendance. Also held a Liaison meeting out of Boise in Coeur d’ Alene for the first time when the meet-ing was not connected to time at the regional convention.
  • Continued the 30 year communication process (Liaison Meetings) with the State of Idaho Department of Insurance.
  • Continued to establish and grow our relationship with the Director Dean L. Cameron of the Department of Insurance.
  • Legislative Activities general summary
    • Successfully passed legislation that established flat predictable recording fees.
    • Worked with the DOI on Rule 56 amendments that amended give away allowances. Changes to social media and trade association donations were tabled.
    • Worked with and continue to work with the realtors to address the HOA assessment fee issue.
    • Worked with the Secretary of State’s office, lenders, and other impacted groups on revised e-signature and e-notary laws that were implemented.
    • Continue to work with the Counties to get all Counties e-recording (stragglers whittled down to Nez Perce and Shoshone with Boundary, Butte, Franklin and Adams with projects in the works or active discussion).
    • Work with the DOI on Rule 56 and 25 amendments that focus on changes to cancelation fee mandates making them discretionary charges and that a commitment is connected to the opening of an order.
    • Working on legislative change that will clarify that employee discounts could also apply to escrow fees.
    • Discussed having Title 101 presentations with legislative groups, realtors, DOI to help them better understand the title industry and how it is different than other lines of insurance.
    • Education Seminar

    • New location at the Grove Hotel in Boise continued to be well received.
    • 116 attendees despite a Monday- Tuesday format and Valentine’s Day.
    • Many issues were addressed including legislative update; cyber security; common claims and industry trends; judi-cial review; ALTA Home Ownership Program (HOP); marketing and creating a sales culture to grow your busi-ness; best practices and compliance issues; managing fraud risks; and, railroads and rights of way issues.
    • The seminar also saw the revitalization of the Legislative Reception that was well attended and appreciated by our legislators.
    • The 50/50 raffle and silent auction raised $2,501 for IPAC.
    • Next year is back to the Thursday-Friday format March 8-9, 2018 at the Grove Hotel
  • The Board continued to offer two scholarships of $400 each, to go towards registration and travel costs for the 2017 Education Seminar.
  • The affiliation agreement with ALTA was implemented so that all ILTA members can obtain ALTA educational prod-ucts such as Title 101 and Title 201 at a 25% discounted rate.
  • Idaho continues to participate in the regional convention with Washington and Oregon and will host the 2018 conven-tion in Coeur d’ Alene August 2-4, 2018 at the Coeur d’ Alene Resort.
  • Continued our participation at the ALTA Federal Conference in an effort to be more active with our federal legislators on discussing important issues. During this conference ILTA Board members met with Idaho Senators, Representatives and staffers to remind Congress about the unnecessary challenges and confusion brought by TRID and to educate Con-gress about the value of our industry.
  • Continued our participation at the ALTA One convention to be better informed and connected from national, regional and local levels.
  • Distributed quarterly ILTA newsletters
  • Raised $1,720 for IPAC from last year’s Pacific NW Convention to make a total amount raised for the year at $4,221.
    • Current IPAC Balance is $7,808.
    • Contributed $7,000 to the Idaho legislators and another $1,000 to US Sen. Mike Crapo.
  • Created and implemented the Idaho Title Professional Program (ITP). Because Idaho has no individual licensing and no continuing education credits the ITP was created as a vehicle to increase the professionalism of our industry. The ITP is based on experience, education and participation at ILTA and ALTA events as well as associated business events. The ITP was also designed as a stepping stone to receive ALTA’s National Title Professional designation (NTP).
  • JT presented the first ITP designations to Daryl Olsen and John Holt. The Board has been advised more applications will be submitted in the near future and we hope to develop the ITP into a flourishing program to demonstrate and substantiate the professionalism of the title industry in Idaho.

    2017 Business Meeting and Committee Reports
    Liaison Committee— John reported highlights from the year: Jim Scanlon advised on title products being utilized. Red Vision was under investigation but DOI ultimately concluded they were issuing a product akin to a lot book report and in-formational report. Reliant Escrow and Transaction Coordinators was issued a cease and desist from the DOF as their in-vestigation indicated this was a money scam. Jim also advised he is involved in an ongoing investigation of Fidelity National Agency Services products. Regional state DOI’s are all participating in this investigation.

    Received statement from the Director that he is in favor of self-policing within limits. Enforcement is the Department’s responsibility and agents should be wary of crossing the line between the two. Agents have a moral and ethical responsibility to report violations to the Department. Director also expressed that the NAIC is concerned with the significant level of es-crow fraud. We discussed the issue in general as the Director welcomed details/explanation of the issues involved. We also advised that the issue is not as significant in Idaho as in other areas.

    Discussed out of County closing issues and minimum negotiable fees being used as maximums.

    Discussed market disruption and providing value and quality experience versus cost.

    Discussed being involved and being committed versus just interested.

    Discussed cyber fraud and scenarios to watch out for. Possible implementation of docs that buyer and seller would sign re-garding cyber issues and identifying a specific process for wiring funds and making changes.

    Jim reviewed the DOI revamped website.

    Discussed Counties acceptance of an affidavit of death coupled with a WD from a surviving spouse to transfer title and taxes after the 3 year statute of limitation expired for probate of a deceased spouse. A couple of Counties were moving to require a legal process be commenced resulting in an Order.

    Discussed Bonneville County implementing a new document retrieval system and proposing a tiered pricing system. After meetings they stood down and have an open door with our association to ensure the fees do not exceed the statutory price per page.

    Viewer reports were discussed as a means to create a public road. A special exception may be warranted.

    Judiciary Committee
    —Matt Ryden’s case analysis is included in this Newsletter.

    Legislative Committee—The years’ topics were outlined in the President’s Report. Additional information was presented by Cameron McFaddan and Martin Bilbao. The cancelation fee issue and DOI amendments to Rules 25 and 56 are with the DOI who is waiting for comments from the relators. Martin is working with the realtors and it is anticipated the matter will proceed forward with the negotiated rule making process with another hearing to be scheduled soon. The ILTA is also working on a clean up bill to last year’s flat fee bill. Clarification is needed to specify the charge for docs that exceed the 30 page threshold. Additional issues pertain to narrow interpretations from some Counties—i.e. a “Re-recorded Deed of Trust” is not being charged from the deed of trust category because it is a “re-recorded” document. The County e-recording project also continues to move forward. Two holdout Counties, Nez Perce and Shoshone, need to get on board with the rest of the state.

    Education Committee—Daryl emphasized that a Board and ILTA goal is to increase education and promote the ITP pro-gram to enhance the professionalism of our industry. Education seminars are an important component of achieving the ITP designation. Regional education trainings will be sponsored by the ILTA in eastern and northern Idaho with a plan to roll these out this fall.

    PAC Committee—Denise Potts and JT reiterated that $2,501.00 was raised at the 2017 Ed Seminar and an additional $1,720.00 was raised at the 2017 Pacific NW Convention in Sun River. Any ideas for fundraising is appreciated. Please con-tact Denise or JT.

    Membership Committee—John Northrup advised that there are only a couple of licensed agents that are not members but are from remote Counties. Opportunities to increase membership lies in associate membership. Any suggestions and con-tacts for lenders, realtors, attorneys and vendors will be appreciated.

    Convention committee—John advised that Idaho is hosting the 2018 Pacific NW Convention in Coeur d’ Alene at the Coeur d’ Alene Resort August 2-4. Mark your calendars!

    Nominating Committee—Cindy Guanell formally nominated the slate of officers—Daryl Olsen, President; Cameron McFaddan, VP Southwest; Heather Wichman, VP Panhandle; Jay Williams, VP Southeast; John Holt, Secretary/Treasurer; and, JT Jacobsen, Past President. Ballots submitted via email together with a call to those present at the meeting resulted in the slate of officers being approved (unanimously). Official installation took place at the Friday evening banquet.

    The meeting was adjourned after the vote for the Board. The next Liaison and Board meeting is set for 10:00 Thursday Sep-tember 14 at Martin’s office at 702 W. Idaho Street, Suite 700 in Boise.

    Judiciary Case Review
    Matt Ryden

    The following is recap of Idaho Supreme Court decisions discussed at the ILTA Annual Meeting on August 17, 2017.

    Swafford v. Hunstman Springs, Inc., 2017 WL 2871595 (Idaho 2017. A buyer’s attempt to enforce entitlements shown in a subdivi-sion Master Plan.
    Facts: On July 16, 2007, the Swaffords entered into a contract to purchase a certain commercial lot – identified as “Lot 4, Block 50, Huntsman Springs PUD, Phase 1” – from the developers of the subdivision, Huntsman Springs, Inc. The Swaffords selected the lot after reviewing the Huntsman Springs Master Plan.

    On July 20, 2007, the Phase 1 Plat recorded, and the sale closed with the recording of a warranty deed on September 21, 2007. According to the Plat, the property bordered Front Street on the east. On the west, the property was separated from Primrose Street by a 50-foot green space, which was subsequently improved with trees, landscaping, and a walking path. According to the Master Plan, the property had direct access to Primrose Street.
    On August 20, 2014, the Swaffords wrote the developer, demanding access to Primrose Street as promised in the Master Plan.

    Lawsuit: On July 17, 2015, the Swaffords filed a lawsuit seeking access to Primrose Street under several legal theories, including breach of contract, breach of warranty, breach of the duty of good faith and fair dealing, and unfair marketing under the Idaho Consumer Protec-tion Act.
    The District Court dismissed the Swaffords’ claims on the ground that they were barred by applicable statutes of limitations, with the time for assertion of claims running from either the date of recordation of the Plat (July 20, 2007) or from completion of the improvements to the green space (August 2008).

    Issues on Appeal: The Swaffords appealed, asserting that the District Court erred in its determination of when the statutes of limitation began to run. The Swaffords maintained that they were not aware of any damage until the developer ignored their August 2014 letter, having assumed prior to that time that the developer would complete the development in accordance with the Master Plan.

    Holding:
    The Idaho Supreme Court found that further examination of the dates of commencement of the statutes of limitation was unnecessary. The Court instead focused on the crux of the Swaffords’ argument – that the developer failed to develop the area surrounding their lot in conformance with the Master Plan.

    “Crucially,” according the Court, the purchase contract made no reference to the Master Plan. Further, the contract contained the usual “integration clause,” wherein a written contract expressly supersedes any and all understandings and agreements of the parties not stated in the contract. As such, the Master Plan did not obligate the developer to any particular conduct, and the Swaffords reliance upon the Master Plan was misplaced. Additionally, the contract identified the subject property by reference to the plat, and the green space was clearly shown on the plat.
    The Supreme Court upheld the District Court’s dismissal of the lawsuit without examination of the statutes of limitation issues.
    Fuquay v. Low, 162 Idaho 373, 397 P.3d 1132 (Idaho 2017). A claim for a prescriptive easement over a private road.

    Facts: This case involves respective rights as to a road known as “King Lane” in Owyhee County. King Lane is about one-half mile in length, connecting Oreana Loop Road on its east end and Castle Lane on its west end. Castle Lane continues southward until it connects with Oreana Loop Road. King Lane is lined by two barbed wire fences and improved to handle heavy trucks and otherwise support farming operations.

    The Fuquays own property to the west of Castle Lane, having purchased the same in 1977. The Fuquays claim to have continuously used King Lane to access King Lane with semi-trucks, cattle trucks, farm vehicles and personal vehicles since 1977.

    In 2014, the Fuquays divided their property into parcels for sale, and discovered the lack of any recorded easement over King Lane for the benefit of the Fuquay property.

    Lawsuit: On August 11, 2014, the Fuquays filed a Complaint against the owners of the parcels underlying King Lane, seeing a declaratory judgment for a prescriptive easement. Following extensive proceedings on motions for injunctive relief, summary dismissal and reconsid-eration, the District Court ultimately dismissed the Fuquays’ claim on the ground that there was a presumption that the Fuquays’ use of the road was permissive, not adverse as required to establish an easement by prescription.

    Appeal: On appeal, the Fuquays argued: 1) the District Court should have applied a presumption of adverse, not permissive, use; 2) the defendants failed to present any evidence of permissive use; and 3) the Fuquays presented at least three distinct acts of adverse use that would rebut a presumption of permissive use.

    Holding: The Idaho Supreme Court rejected the Plaintiff’s contention that a presumption of adverse use applied. As a general rule, “proof of open, notorious, continuous, and uninterrupted use…without evidence as to how the use began, raises a presumption that the use was adverse under claim of right.” Marshall v. Blair, 130 Idaho 675 (1997). This presumption would shift the burden to prove permis-sive use to the owner. In this case, the evidence presented by the Fuquays fell short of establishing “continuous” use. Testimony pre-sented by Fuquays suggested the use was at times intermittent rather than continuous. On the whole, the Court found the Fuquays’ evi-dence was insufficient to shift the burden of proof to the underlying property owners.

    Improvement of the road by the underlying property owner demonstrated permissive, not adverse use. The Supreme Court recited two specific exceptions to the presumption of adverse use. First, “the use of a driveway in common with the owner and the general public, in the absence a decisive act by the user that indicated exclusive use on his part negates any presumption of an individual right in his favor.” Simmons v. Perkins, 63 Idaho 136 (1941). Second, “where the owner constructs a way over his property for his own use and convenience, the mere use of it by others in a manner that does not interfere with his own use will be presumed to be permissive.” Id. Both excep-tions applied in this case because the improvement of King Lane by the owners of the underlying ground served their own farming pur-poses and the use by the Fuquays in no way interfered with such use.
    The Fuquays’ use of the roadway did not sufficiently interfere with or infringe upon the owners’ use of the road and, therefore, would not rebut a presumption of permissive use. Generally, “no use can be considered adverse and ripen into a prescriptive right unless it consti-tutes an actual invasion of or infringement on the rights of the owner.” Hughes v. Fisher, 142 Idaho 474 (2006). In this case, the Fuquays had admitted in a preliminary injunction hearing that they never interfered with the owners’ use of King Lane.

    Based on these findings, the Supreme Court affirmed the District Court’s dismissal of the Fuquays claim to an easement, despite their long history of use of the road.

    Please also make note of Baughman v. Wells Fargo Bank, 162 Idaho 174, 395 P.3d 393 (2017), wherein the Idaho Supreme Court ex-amined, among many other issues, the application of the statute of limitation applicable to an action to foreclose a deed of trust.

    On January 22, 2008, the beneficiary of a deed of trust mailed a notice of default indicating that the borrower’s failure to cure the default by February 22, 2008 would “result in the acceleration (immediately becoming due and payable in full) of the entire sum secured by [the deed of trust].”

    On February 14, 2014, the beneficiary filed an action for judicial foreclosure of the deed of trust as a counterclaim to the borrower’s quiet title action. The borrower contended the 5-year statute of limitation set forth in Idaho Code section 5-214A began running upon the acceleration of the entire loan balance on February 22, 2008, making the lender’s foreclosure action untimely.

    The Idaho Supreme Court disagreed. It held that where the deed of trust sets forth a specific maturity date (and no provision for chang-ing the stated maturity date upon acceleration), the stated maturity date will serve as the “maturity date” from which the 5-year limitation period runs under Idaho Code section 5-214A.

    Download PDF