SECTION V -- EXHIBITS AND FORMS
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MINIMUM STANDARDS,
SPECIFIC INSTRUCTIONS AND REPORT FORMS FOR AUDIT
OF TRUST FUNDS REQUIRED OF TEXAS TITLE INSURANCE
AGENTS, DIRECT OPERATIONS, TITLE ATTORNEYS,
AND ATTORNEYS LICENSED AS ESCROW OFFICERS
The purpose of the auditing requirements of Chapter
Nine of the Texas Insurance Code of all trust
funds is for the protection of parties to transactions
depositing funds with Title Insurance Agents,
Title Attorneys, Direct Operations, or attorneys
licensed as Escrow Officers, hereinafter collectively
referred to as "escrow agents". The
objective of such audit is to determine that the
escrow agent maintains adequate trust fund accounting
records and that the financial statements contain
no material misrepresentations. This audit should
be conducted in accordance with generally accepted
auditing standards of the accounting profession.
Because of the high degree of risk involved due
to the nature of these funds, strong emphasis
should be placed on the work undertaken on the
cash transactions for the year in an attempt to
uncover any misapplication of funds or other discrepancies
that might exist.
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MINIMUM REQUIREMENTS
In connection with this audit, the Department
realizes that the auditor's duty shall include
the examination of the contents of certain of
the guaranty files. The Department further realizes
that a detailed analysis of each file may be out
of the practicability range of an audit; consequently,
sampling procedures may be used. The auditor shall
select files to be examined as a test of procedures
followed. Results of the findings of this examination
shall determine the number of files to be examined
and the degree to which this examination should
extend. The auditor shall report the number of
files actually examined on Exhibit E. Confirmations
shall be made of individual guaranty file accounts,
accounts where funds have not been fully disbursed,
and escrow bank accounts. Confirmation of all
escrow bank accounts is mandatory. However, because
it is recognized that a complete confirmation
of all guaranty file accounts would be impractical,
it is permissible for the auditor to adopt a spot-check
system of confirmations, to consider internal
type audit evidence, and to use judgment in accordance
with sound auditing practices as to the extent
confirmations are requested. The degree to which
confirmation is made should be dependent upon
the findings. Although a positive confirmation
asking for a specific reply is desirable, it is
permissible to use negative confirmations if in
the auditor's judgment, the circumstances warrant
such.
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SPECIFIC AREAS AND PROCEDURES
Several areas require particular attention and
thorough investigation on the part of the auditor.
Some of these areas are discussed below.
1. Determine
that good funds for a transaction are received
and deposited before any disbursements are made
in accordance with Article 9.39A
and related Procedural Rule P-27.
2. 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.
3. Checks written out of
an escrow account to the agency's operating account
or to another escrow account shall be examined
carefully, especially if the checks appear to
be disbursements for anything other than normal
charges to a specific guaranty file. Transfer
of funds from one account to another is permissible
providing both files contain proper authorization.
As a part of the case work of this audit, a certain
number of cancelled checks shall be examined to
determine properly authorized signatures, payees
and endorsements.
4. Escrow receivables are the
responsibility of the escrow agent and constitute
shortages in the account which are deemed to be
violations of Article 9.39.
Restitution of every shortage shall be made within
forty-five (45) days from the closing date of
the bank statement of the account which reflects
the transaction creating the escrow receivable.
All escrow receivables in excess of $200 shall
be itemized and thoroughly explained on Exhibit
E-2. Any irregularities such as bank overdrafts
shall be thoroughly explained on Exhibit E-3.
5. 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,
it should 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 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. If there is evidence of
a prior lien in the file, such as a payoff
statement from a lending institution, it should
be determined that a check was written for the
payoff of said loan and a release received.
There should 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.
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POLICY GUARANTY
FEE AND GUARANTY ASSESSMENT RECOUPMENT CHARGE
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.
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SPECIFIC INSTRUCTIONS
Exhibit A. The form
of opinion should be as 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.
Exhibit D. This exhibit requires the following
information for each interest-bearing account
open at fiscal year end:
1) Name of depository or securities
held and bank account number; 2) Type of account
- should indicate what type of investment is
held, i.e. money market, certificate of deposit,
etc; 3) Guaranty file number and beneficiary;
4) Balance - should be the amount (including
both principal and interest) held in escrow
on open accounts as of the fiscal year end.
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.
Exhibit E.
1) The total credit balances as of
the end of the fiscal year shall be segregated
into the following categories:
A) Credit balances open three years
or longer (must be explained in detail on
Exhibit E-1); B) Credit balances open 1 year
to 3 years; C) Credit balances open less than
1 year.
The dollar amounts and the related number of
guaranty files shall be reported in the spaces
provided. 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. 2) The total number of and dollar
amount of debit balances not cleared as of the
end of the fiscal year shall be reported in
the following categories:
A) Debit balances up to and including
$200; B) Debit balances over $200; (must be
explained in detail on Exhibit E-2).
Debit balances over $200 which were cleared
during the year must also be explained on Exhibit
E-2. 3) The number of guaranty files the auditor
actually examines shall be reported in the space
provided.
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. Individual
guaranty files with dormant balances of $200 or
less may be reported in the aggregate for each
specific reason the balances remain in the files.
Exhibit E-2. The auditor shall provide
a detailed explanation of every debit balance
or receivable in excess of $200 occurring throughout
the year, even if cleared before the year's end.
The explanation should include the date the shortages
were created, the cause of the shortages, the
date the shortages were cleared, and the method
of clearance. 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.
Exhibit E-3.
Section A. The auditor shall provide detailed
information regarding any overdrafts occurring
during the fiscal year. The information should
include the following: bank name and account number,
related guaranty file number, amount of overdraft,
dates of origin and clearance, and an explanation
which includes the method of disposition. If an
overdraft situation was caused by an escrow receivable
which has already been reported in Exhibit E-2,
make reference to this explanation.
Section B. The auditor shall provide a complete
explanation of any irregularity discovered during
the course of the audit which has not been explained
elsewhere in the report. Exhibit F. This exhibit
reports information concerning the monthly activity
of the agency's escrow accounts, as discussed
below.
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 B
- Escrow Receipts This column represents the
amount of escrow funds received during the month.
It must include a total for all months at the
bottom of the column. 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.
Column E - Escrow Receivables Any escrow receivables
existing at the end of the month shall be reported
in this column, as well as on Exhibit E-2. Column
F - Escrow Liability This column is the sum
of Columns D and E, and represents the total
escrow liability of the account.
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 G. Only Title Attorneys as
authorized by Article 9.56
shall complete and file this exhibit. They shall
use this form in addition to each of the other
forms herein listed in filing their audit reports.
Title insurance agents and direct operations do
not file this exhibit. 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.
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Negative Reports.
All reports and/or exhibits reflecting no activity
shall be filed and noted as "none".
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Filing Audit Reports.
The auditor shall provide the escrow agent with
an adequate number of reports in sufficient time
to allow the escrow agent to review them and mail
copies with cover letters to the Texas Department
of Insurance (by certified mail) within 90 days
of the fiscal year end and to each Title Insurance
Company which the escrow agent represents. The
Texas Department of Insurance has no authority
under the Texas Insurance Code to grant extensions
of the 90-day time period. Note: These instructions
and standards are not in lieu of, but are in addition
to generally accepted auditing standards.
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USE OF REQUIRED FORMS
Escrow agents shall utilize the forms attached
to these minimum standards designated 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.
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MINIMUM
ESCROW ACCOUNTING PROCEDURES AND INTERNAL CONTROLS
1. 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 the next month.
2. 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.
3. Each reconciliation should be approved by
a manager or supervisor. If this is not possible
or practical, each reconciliation shall be reviewed
by another employee.
4. Each reconciliation should be prepared by
someone not associated with the receipt and
disbursement function. Where size does not permit
this, each reconciliation shall be reviewed
by the manager or owner.
5.
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.
6. Company records must include copies of all
checks, deposit slips, and receipt items.
7. An interest-bearing (investment) escrow
account must meet the following criteria:
A) The investment account must be styled in
the name of the owner/beneficiary of the escrow
funds, with the escrow agent named as trustee
or escrow agent.
B) 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.
C) The Tax Identification number used to open
the interest-bearing escrow account must be
that of the owner/beneficiary of the funds,
not that of the escrow agent.
D) 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.
8. Each guaranty file must be assigned a unique
number. Name identification is not acceptable.
9. All accounts must be styled as "Escrow"
or "Trust". "Escrow account"
or "trust account" must appear on
the bank statement, the signed bank agreement,
disbursement checks and deposit tickets.
10. Accounts open for longer than six months
should be thoroughly investigated. Disbursements
from these accounts should not be allowed without
management approval.
11. Voided checks should have their signature
blocks removed or otherwise rendered ineffective.
12. Management approval should be required
for any transfers of funds between guaranty
files or escrow accounts and transfers between
guaranty files must be documented in both files.
13. If after the escrow agent has received
and deposited an earnest money check, and the
check is returned to the escrow agent by a financial
institution due to insufficient funds, the escrow
agent shall notify the seller by written notice
deposited in the mail and addressed to the seller's
address as shown in the escrow agent's file
relating to the transaction within seven business
days after the returned check is received by
the escrow agent unless the check is replaced
by collected funds within the seven-day time
period. The escrow agent shall retain copies
of written notices.
14. All escrow checks and deposit tickets must
display related guaranty file numbers directly
on the document to provide a clear and direct
connection between the document and related
guaranty file.
15. Each guaranty file must contain a complete,
current disbursement sheet which lists the date,
source and type of all receipts; date, check
number, item description, payee and amount of
all checks; date, amount and type of any other
disbursements (i.e.: outgoing wire-transfers)
and any remaining balance. Voided checks which
have been canceled where funds have been credited
back to the account shall be shown on the disbursement
sheet.
16. Invoices substantiating or sufficient evidence
to support all disbursements shall be kept in
the guaranty files.
17. Reimbursement of all escrow receivables
and other escrow shortages shall be made by
the appropriate party(ies) or from the escrow
agent's operating account within forty-five
(45) days from the closing date of the bank
statement of the account which reflects therein
the transaction(s) creating the escrow receivable(s)
or shortage(s).
18.
If a
settlement statement requires changes, a new
statement must be prepared or pen-and-ink
changes must be initialed by all parties
affected by the changes, or sufficient evidence
to support the changes must be maintained in the
guaranty file. A copy of the revised, final
settlement statement must be provided to the
lender and borrower.
19. A signed, pre-numbered receipt must be
issued for any escrow funds received in cash.
20. If a bank does not return actual canceled
checks with bank statements, then copies of
all checks must be available in agency records,
or the agency must obtain a signed acknowledgement
from the bank that they will be provided upon
request, and must meet the following criteria:
A) The copies of the checks must be clearly
legible;
B) There must be a copy of both sides of every
check so that endorsements can be verified;
and
C) It must be unmistakable which front and
back images belong together.
21. All escrow or trust
accounts maintained by licensed Texas title
insurance companies, title insurance agents or
direct operations shall be in financial
institutions or branches of financial
institutions located within the geographic
bounds of the State of Texas.
22. If an escrow agent as
defined herein detects a defalcation regarding
its trust or escrow funds, the agent must file
the following notice with the Title Division
Examinations Section of the Department within
forty-five (45) days of the end of the month in
which the defalcation is believed to have
occurred: “We have detected circumstances
regarding our escrow or trust funds that may
warrant an investigation by the Title Division
of the Department. The amount of funds involved
is believed to be $_________.” If the agent
comes into possession of an indictment or
conviction concerning the defalcation, a copy of
that document should be forwarded to the
Department within 10 business days of the date
the agent comes into possession of same.
Exhibit A
-
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Exhibit
B - Statement of Assets and Liabilities
of Trust (Escrow) Fund Accounts
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Exhibit
C - Statement of Cash Balances
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Exhibit
D - Investments Held for Specific Accounts
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Exhibit
E - Statement of Escrow Deposits and Receivables
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Exhibit
E-1 - Description of Credit Balances Open
Three Years or Longer
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Exhibit
E-2 - Analysis of Escrow Receivables and
Shortages
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Exhibit
E-3 - Analysis
of Bank Overdrafts and Other Irregularities
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Exhibit
F - Statement of Monthly Activity
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Exhibit
G - Payments for Title Information
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Exhibit
H - General Interrogatories
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Title Insurance
Company Annual Report and Analysis of Audit Reports
of Trust Fund Accounts T-19
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Policy Guaranty
Remittance Form T-G1
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Guaranty Assessment
Recoupment Charge Remittance Form T-G2
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Statement of Assessment
Received From and Recoupments Distributed To Title
Insurance Company T-G3
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Insured Closing
Service T-50
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Purchaser/Seller
Promulgated Insured Closing Service Letter T-51
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Immediately Available
Funds Procedure Agreement T-37
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Verification of
Services Rendered T-00
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Owner Policy Rejection
Form T-56
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Notice of Cessation
of Title Insurance Business
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Agreement to Furnish
Title Evidence T-57
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Title Attorneys
Affidavit of Unavailability of Title Evidence
T-58
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Abstract Plant
Information T-52
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Texas Title
Attorneys Bond
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Texas Title
Insurance Agent's/Direct Operation's Bond
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Texas Escrow
Officers Schedule Bond
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Borrower's Statement
T-60
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Purchaser's Statement
T-61
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