I really don't want to get in the middle of this, and it is probably a topic that is much better left to private correspondence between the two of you rather than on a public forum. However, there seems to be a miscommunication that I do not understand.
It appears, and correct me if I am wrong, that the search was done over 5 months ago. After 5 months had lapsed, they called you to ask you about a missed mortgage. Within 5 minutes of that call, you provided the information on the missed mortgage.
However, by this point, the lender had already closed on the loan and disbursed the proceeds. At that point, I don't know what could have been done. The lender has an outstanding mortgage that they claim is not marketable on the secondary market. Thus, there is the "potential" for a claim.
I guess my question for Rick is, what do you think could have been done 5 months after the fact to correct this error? I can see that it was caused by a fax machine and not necessarily human error, but I don't know how that factors in to the problem as it exists today. Unfortunately, the information didn't make its way to the lender who issued the loan. Perhaps they are not blameless, if they neglected information on the application or credit report, but the information still was not included with the search.
A few things that might have help avoid this problem in the future, would be to write-up all the mortgages (and other liens) on the first page of the search (which would obviously have been noticed if it was missing) or at least a note on the first page indicating the number of pages that should be contained in the fax (alerting the recipient that if they don't have that number of pages, they are missing something). We do both on our searches - and this is exactly why.
I don't know what this search looked like, but I have seen many searches from others that merely contain a tax print-out and copies of the deeds and mortgages. If one page gets lost in the fax transmission - this is the result. The recipient doesn't know that they are missing anything, and the sender doesn't know that it wasn't received by the client.
THIS SHOULD BE A VALUABLE LESSON FOR OTHERS.
I hope that you both are able to resolve this with the lender and E&O insurance, if necessary, without too much trouble.
Best,
Robert A. Franco
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