Escrow Agents alleged to have violated any of the statutes or regulations listed in our Escrow Agent Overview Page can face liability from two primary avenues: DFI enforcement actions and civil litigation. This page is pertaining to civil litigation.
Separate from a DFI enforcement action, an Escrow Agent accused of violating the the Escrow Agents Registration Act RCW 18.44 et seq. and the implementing regulations in WAC 208-680, along with the statutes and regulations incorporated into the Act (see Escrow Agent – Regulatory Enforcement), may be the subject of a civil lawsuit. Certain statutes, such as the Truth in Lending Act and its regulations Truth in Lending – Regulation Z, the Real Estate Procedures Act, the Gramm-Leach-Bliley Act, and the Equal Credit Opportunity Act have been specifically incorporated into the Escrow Agents Registration Act. A violation of any of these statutes may result in civil liability to the escrow agent.
An escrow agent has a duty to exercise ordinary skill and diligence in their employment and if they act negligently, they may be liable for any proximately resulting loss. At the same time, an escrow agent bears a fiduciary relationship to each of the principals. This position of multiple fiduciary duties may open additional avenues to potential liability. For example, an escrow agent must comply strictly with the instructions of the principals, and if the agent disburses the principals’ property in a manner inconsistent with the instructions or otherwise breaches their fiduciary duty, the agent may be liable to the injured parties for breach of contract. See, Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal.App4th 1174, 1179; Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co. (2002) 7 Cal.4th 705, 711.)
While many Escrow Agents are Limited Practice Officers and not actual attorneys, it is important to note that when lawyers close real estate transactions and act as an escrow agent for a fee, they are considered to be engaged in commercial services that are not the practice of law and not immune from liability under the Washington Consumer Protection Act. Miran v. Am. One Fin. Inc., No. C07-5710BHS, 2008 WL 4000543, at *4 (W.D. Wash. Aug. 25, 2008).
Because the escrow agent is in the middle of a transaction, a dispute between the parties may bring the escrow agent into the parties’ dispute. There are therefore multiple chances for unintended errors to result in one party claiming liability against the escrow agent along with or separately from the party with whom they are in conflict. It is important that any escrow agent act promptly and decisively when facing an action–whether in the form of a DFI investigation, an enforcement action, or a private civil action. An escrow agent should not ignore the first notice they receive, hoping it will be resolved or disappear on its own. The escrow agent should respond to such allegations with the help of an experienced attorney. In many cases, an early and well thought out response can prevent an investigation from escalating to an enforcement action or prevent a dispute from becoming a lawsuit.
Ari Brown and has spent years litigating issues involving real estate and mortgage transactions that implicate the duties of an escrow agent. Examples of such cases include:
- Tandiama v. NovaStar Mortg., Inc., 2005 WL 1287996, (W.D. Wash. 2005). A case involving mortgage broker violations of Real Estate Settlement Procedures Act (RESPA), Truth in Lending Act (TILA), Washington Mortgage Broker Practices Act (MBPA), and the Washington Consumer Protection Act (CPA). Litigation included allegations that an escrow officer violated their own duties by enabling a broker’s malfeasance.
- Pierce v. NovaStar Mortg., Inc., 238 F.R.D. 624 (W.D. Wash. 2006). Class action regarding company-wide loan origination policies and practices alleged to violate the Washington Consumer Loan Act (CLA), Real Estate Settlement Procedures Act (RESPA), Truth in Lending Act (TILA), and Washington Consumer Protection Act (CPA).
- Blaylock v. First Am. Title Ins. Co., 504 F. Supp. 2d 1091 (W.D. Wash. 2007). An action regarding title insurance and allegations of Real Estate Settlement Procedures Act (RESPA) violations by title and escrow companies.
- Miran v. Am. One Fin. Inc., (W.D. Wash. 2008). An action arising from mortgage origination practices and the involvement of an escrow agent.
Ari Brown is a lawyer who has litigated a variety of issues involving lending, loan origination, loan servicing, and debt collection for nearly twenty-five years such as violations of Real Estate Settlement Procedures Act (RESPA), Truth in Lending Act (TILA), Washington Mortgage Broker Practices Act (MBPA), and the Washington Consumer Protection Act (CPA).) Years of work involving class actions, banking and lending practices have informed Mr. Brown’s approach to dealing with alleged violations of applicable statutes which heightens his ability help mitigate mistakes, errors and manage misconduct.
Robert Rhodes is a lawyer who works with Mr. Brown on an as-needed basis. He has handled hundreds of administrative and licensing investigations and enforcement actions in various forums. He often draws on his extensive background in criminal and whistleblower law that occasionally becomes useful. Other team members are available as necessary.