The following letter was sent by my colleague Greg Clark, a well-respected title attorney who has this to say about the conflict between what is happening in foreclosure courtrooms and how incorrect or improper legal decisions will plague our economy for decades to come.
Erroneous court decisions, and their failure to properly apply the law litter the vast landscape of our legal history. Reversals of our U.S. Supreme Court, by itself, years or decades later, is proof.
We in the world of transactional/title law and insurance follow a different tune than the drumbeat of the latest questionable appellate decision. We know that the vast majority of the judges sitting on benches never closed a real estate transaction nor searched and put together a title chain, nor could they spot a cloud or defect. We deal in a delicate and extremely conservative area of the law developed over nearly a 1,000 years of practice, process and tradition; We carry the history and weight of that developed law and its solid logic into the most important aspect of any transaction – the fundamental bedrock assumption underpinning its successful completion: clear and marketable title. Every buyer presumes it.
So we do not accept bad or illogical decisions of courts if it conflicts with our learned perception of the law and acceptance of a risk assessment. We cannot be forced to write title.
But if we don’t write title most of the modern real estate world and our economic system will grind down to a halt.
Taking Taylor further up the chain of appeal would cause no harm but it’s presence now as bad precedent gives no shelter or safe harbor for any title underwriting decisions foolishly based on it. Instead it stands out like a sore thumb, a poster boy for a decision based on expediency not law or logic.