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Funds which remain in an account in a dormant condition for a long period of time need to be closely scrutinized. Funds that are being misappropriated often find their way to these accounts in some manner, so appropriate auditing procedures shall be performed on these accounts. Current state law specifies certain criteria that may require dormant funds held longer than three years to escheat to the state treasurer. All credit balances open three years or longer must be explained in detail on Exhibit E-1.

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Some support for each disbursement must be in the guaranty file, and it shall be determined that the disbursements were to logical payees. If there are charges shown on the closing statement for overnight mail service, messenger service, copies of documents, recording fees or tax certificates, whether purchased from a governmental or non-governmental entity, it must be determined that these charges are actual expenses or reasonable estimates of charges that must be made prior to closing and not arbitrary or uniformly charged amounts for these items on all closing statements. Charges for general overhead expenses such as in-house labor, utilities, taxes, business supplies and equipment are already covered by the title insurance premium and are prohibited. If actual charges for products or services provided by third party vendors are known at or prior to closing, the charges may not be marked up. If actual charges for such products or services are not known by the time of closing, only reasonable estimates of such charges should be shown on closing statements and charged. The actual charge for an absentee notary sign-up fee may be passed through, if the notary is a third party and that licensee, prior to closing the transaction, receives a written request signed by the borrower, buyer or seller making the request and agreeing to pay for an absentee sign up by a notary as an accommodation to the requester after the licensee provides the requester with written notice of the amount of the notary fee or a reasonable estimate of the fee, if not known by the licensee. If the third party notary is affiliated with the licensee, the licensee will provide notice of the affiliated relationship to the requester prior to the absentee notary sign-up service being provided. If there is evidence of a prior lien in the file, such as a payoff statement from a lending institution, it must be determined that a check or other written evidence such as a wire transfer confirmation, reflects the payoff of said loan and a release was received or a written demand for a release was made. There must be a closing statement in the file, and entries on the closing statement should be traced to the escrow accounting records. Company records must also include copies of all invoices, receipt items , and disbursement checks.

Effective January 3, 2014 (Order 2806)

The escrow agent's policy guaranty fee escrow account and the guaranty assessment recoupment charge escrow account, if agent opts to maintain these accounts separate from agent's standard audited escrow account maintained in the ordinary course of business, should be audited annually. The scope of these minimum requirements should be expanded accordingly to include these accounts. These fees must be retained in or deposited directly into an escrow or trust account and remitted quarterly to the Texas Title Insurance Guaranty Association. Appropriate procedures must be utilized to determine that amounts collected and remitted are reasonable and that funds are maintained properly in an escrow or trust account.

Exhibit A. The form of opinion should be set forth in Exhibit A unless circumstances dictate otherwise. The opinion letter must be signed by an independent certified public accountant or an independent licensed public accountant or by a firm composed of either. The firm name and address must be provided on the Exhibit.

Exhibit B. Amounts should agree to other exhibits as indicated. If one or more permanent balances from the escrow agent's operating account (imprest funds) are kept in an escrow bank account or accounts, the amount(s) must be shown on Line 9 "Other".

Exhibit C. Every escrow bank account must be included on this exhibit even if the balance at the end of the year was zero. The balances shown on the exhibit must be "reconciled balances" not actual "cash balances". The auditor shall verify that each account number, name, and designation is listed correctly. Each account must be styled as an "escrow" or "trust" account on the bank statement. If any accounts are not styled in this manner on the bank statements, arrangements must be made immediately to do so.

Although accounts closed before the fiscal year end are not required on Exhibit D, their activity must be reported on the "Investment Summary Exhibit F." Each guaranty file shall contain written instructions authorizing the investment of the escrow funds. These instructions must be signed by the beneficial owner and disclose the beneficial owner's taxpayer ID number.

The amount of the "total credit balances" listed shall not include the policy guaranty fees and guaranty assessment recoupment charges and must equal the "total escrow deposits" reported on Line 6 of Exhibit B.

Exhibit E-1. This exhibit requires detailed information regarding guaranty files which have been open for three years or longer. This information must include the reason the file is still open, such as "disputed earnest money," "funds escrowed for repairs," "error at closing," etc.

The information must indicate if a file is active or inactive. If a file is inactive or has been dormant for more than three years, the escrow agent should consider clearing the file via escheat or through the interpleading process.

Columns are provided for the debit balances to be carried forward under each month they remained open. Debit balances up to and including $200 should be included as a lump sum, without separate explanations. The columns for each bank account must be subtotaled, and the subtotals on Exhibit E-2 must equal the corresponding month's "total receivables" as reported on summary Exhibit F for that specific account. The totals of each column of Exhibit E-2 must equal the corresponding month's "total receivables" as reported on summary Exhibit F.

Column A - Monthly Beginning Balance.

This column represents the reconciled bank balance for the account as of the beginning of the month, and shall equal the ending reconciled bank balance of the prior month (Column D). An overdraft must be shown as a negative amount.

Column C - Escrow Disbursements

This column represents the amount of escrow funds disbursed during the months. It must include a total for all months at the bottom of the column.

Column D - Monthly ending Balance

The reconciled bank balance as of the end of the month shall be reported in this column. An overdraft must be shown as a negative amount. Because this exhibit is designed to be self-balancing, Column A plus column B less Column C should equal Column D. The ending balance (Column D) for a given month then becomes the beginning balance (Column A) for the subsequent month.

Each escrow bank account existing during the audit year must be reported on a separate exhibit, whether or not the account is open at year-end. If the escrow agent maintains investment, interest-bearing, or specific accounts as disclosed on Exhibit D, these must be reported on Exhibit F in the aggregate. Also required is a "Summary Exhibit F" which combines the activity from all of the escrow accounts, including accounts reported on Exhibit D, if any.

Exhibit H. The escrow agent should complete and answer all questions and submit the signed and dated affidavit to the auditor prior to the completion of the audit. Question 3 applies to any interest earned on escrow funds. Whenever interest is earned there must be a specific written escrow agreement providing for the disposition of that interest.

Escrow agents shall utilize the forms attached to these minimum standards designed as Exhibits A through H when filing their annual audit reports in compliance with articles 9.39 or 9.56 of the Texas Title Insurance Act. Facsimiles of the forms may be used, but the formats must be identical to that promulgated by the Texas Department of Insurance.

A monthly escrow trial balance for each individual escrow bank account must be prepared which, at a minimum, lists all open escrow balances. Each month's escrow trial balance must be completed no later than the end of next month.

A three-way reconciliation of bank balance, book balance and escrow trial balance for each individual escrow bank account shall be performed monthly. Each three-way reconciliation must be completed within forty-five (45) days from the closing date of the bank statement of the account.

Two signatures are required on all escrow checks, but this requirement is waived if the escrow agent has four or fewer employees. Only one signature must be that of a licensed escrow officer, but this requirement is waived if the escrow agent is a sole proprietorship or partnership and the owner or individual partner signs the escrow checks.

The escrow agent must receive written instructions from the owner/beneficiary of the escrow funds to open an investment account. Such written instructions must be maintained in the escrow agent's records.

The interest-bearing escrow account must be included in a control ledger or record identifying all interest-bearing accounts. The interest must be posted within seven business days after receipt of the statement or other documentation reporting the interest accrued. 2351a5e196