Legislature(1999 - 2000)

01/25/1999 03:15 PM House L&C

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
    HOUSE LABOR AND COMMERCE STANDING COMMITTEE                                                                                 
                  January 25, 1999                                                                                              
                     3:15 p.m.                                                                                                  
                                                                                                                                
                                                                                                                                
MEMBERS PRESENT                                                                                                                 
                                                                                                                                
Representative Norman Rokeberg, Chairman                                                                                        
Representative Andrew Halcro, Vice Chairman                                                                                     
Representative Jerry Sanders                                                                                                    
Representative Lisa Murkowski                                                                                                   
Representative John Harris                                                                                                      
Representative Tom Brice                                                                                                        
Representative Sharon Cissna                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                  
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                              
                                                                                                                                
* HOUSE BILL NO. 13                                                                                                             
"An Act relating to the characterization of, use of, segregation                                                                
of, deposit of, interest on, and disbursement of escrow money;                                                                  
relating to the recording, filing, and delivery of escrow                                                                       
documents; relating to civil penalties for violations of certain                                                                
escrow provisions by escrow settlement agents; relating to the                                                                  
supervision by the Department of Commerce and Economic Development                                                              
of escrow settlement agents; authorizing the adoption of                                                                        
regulations to implement certain escrow provisions; and providing                                                               
for an effective date."                                                                                                         
                                                                                                                                
     - MOVED CSHB 13(L&C) OUT OF COMMITTEE                                                                                      
                                                                                                                                
(* First public hearing)                                                                                                        
                                                                                                                                
PREVIOUS ACTION                                                                                                                 
                                                                                                                                
BILL: HB  13                                                                                                                    
SHORT TITLE: REGULATION OF ESCROW ACCOUNTS                                                                                      
SPONSOR(S): REPRESENTATIVES(S) ROKEBERG BY REQUEST                                                                              
                                                                                                                                
Jrn-Date    Jrn-Page           Action                                                                                           
 1/19/99        21     (H)  PREFILE RELEASED 1/8/99                                                                             
 1/19/99        21     (H)  READ THE FIRST TIME - REFERRAL(S)                                                                   
 1/19/99        21     (H)  LABOR & COMMERCE                                                                                    
 1/25/99               (H)  L&C AT 3:15 PM CAPITOL 17                                                                           
                                                                                                                                
WITNESS REGISTER                                                                                                                
                                                                                                                                
JANET SEITZ, Legislative Assistant                                                                                              
   to Representative Norman Rokeberg                                                                                            
Alaska State Legislature                                                                                                        
Capitol Building, Room 24                                                                                                       
Juneau, Alaska 99801                                                                                                            
Telephone:  (907) 465-4968                                                                                                      
POSITION STATEMENT:  Presented the proposed committee substitute                                                                
for HB 13 on behalf of the sponsor.                                                                                             
                                                                                                                                
TERRY BRYAN, Board Member                                                                                                       
Alaska Land Title Association;                                                                                                  
President, First American Title of Alaska                                                                                       
510 West Tudor Road                                                                                                             
Anchorage, Alaska 99503                                                                                                         
Telephone:  (907) 562-0510                                                                                                      
POSITION STATEMENT:  Testified in support of HB 13.                                                                             
                                                                                                                                
ANN RINGSTAD                                                                                                                    
757 Illinois Street                                                                                                             
Fairbanks, Alaska 99701                                                                                                         
Telephone:  (907) 474-5922                                                                                                      
POSITION STATEMENT:  Testified in support of HB 13.                                                                             
                                                                                                                                
MARY ANN ROWE, President                                                                                                        
Alaska Land Title Association;                                                                                                  
President, Kachemak Bay Title, Incorporated                                                                                     
3691 Ben Walters Lane, Number 1                                                                                                 
Homer, Alaska 99603                                                                                                             
Telephone:  (907) 235-8196                                                                                                      
POSITION STATEMENT:  Testified in support of HB 13.                                                                             
                                                                                                                                
DAVID A. LAWER, Senior Vice President                                                                                           
   and General Counsel                                                                                                          
First National Bank of Anchorage;                                                                                               
Alaska Bankers Association                                                                                                      
101 West 36th Avenue                                                                                                            
Anchorage, Alaska 99506                                                                                                         
Telephone:  (907) 777-3011                                                                                                      
POSITION STATEMENT:  Testified on the proposed committee substitute                                                             
for HB 13 on behalf of the Alaska Bankers Association, suggested                                                                
amendments                                                                                                                      
                                                                                                                                
MICHAEL PRICE                                                                                                                   
550 West 7th Avenue, Suite 1370                                                                                                 
Anchorage, Alaska 99501                                                                                                         
Telephone:  (907) 277-6666                                                                                                      
POSITION STATEMENT:  Testified in support of HB 13 on his own                                                                   
behalf as a 24-year real estate practitioner.                                                                                   
                                                                                                                                
JEFF BLAKE, Vice President                                                                                                      
Pacific Rim Title Insurance Agency, Incorporated                                                                                
307 East Northern Lights Boulevard                                                                                              
Anchorage, Alaska 99503                                                                                                         
Telephone:  (907) 274-2562                                                                                                      
POSITION STATEMENT:  Testified in support of HB 13.                                                                             
                                                                                                                                
D.J. WEBB, Past Legislative Affairs Committee Chair                                                                             
   and Past President                                                                                                           
Alaska State Escrow Association;                                                                                                
Senior Escrow Officer, First American Title of Alaska                                                                           
510 West Tudor Road, Number 1                                                                                                   
Anchorage, Alaska 99503                                                                                                         
Telephone:  (907) 786-9560                                                                                                      
POSITION STATEMENT:  Testified in support of HB 13.                                                                             
                                                                                                                                
GINNY FAY, Legislative Liaison                                                                                                  
Office of the Commissioner                                                                                                      
Department of Commerce and Economic Development                                                                                 
P.O. Box 110800                                                                                                                 
Juneau, Alaska 99811-0800                                                                                                       
Telephone:  (907) 465-2503                                                                                                      
POSITION STATEMENT:  Testified on the proposed committee substitute                                                             
for HB 13, suggested amendments.                                                                                                
                                                                                                                                
ACTION NARRATIVE                                                                                                                
                                                                                                                                
TAPE 99-1, SIDE A                                                                                                               
Number 0001                                                                                                                     
                                                                                                                                
CHAIRMAN NORMAN ROKEBERG called the House Labor and Commerce                                                                    
Standing Committee meeting to order at 3:15 p.m.  Members present                                                               
at the call to order were Representatives Rokeberg, Halcro,                                                                     
Sanders, Murkowski, Harris, and Brice.  Representative Cissna                                                                   
arrived at 3:17 p.m.  Before discussion of the scheduled                                                                        
legislation, the chairman reviewed committee protocol and request                                                               
procedures for committee hearings on specific bills.  He discussed                                                              
Representative Cissna's request that the committee not meet on                                                                  
February 12.  He noted the committee would be advised as soon as                                                                
possible whether this request would be granted.  Chairman Rokeberg                                                              
noted this was his fifth year serving on the committee and third                                                                
year as chairman.  He indicated the committee had worked hard to                                                                
gain a well-regarded reputation for working in a very open and                                                                  
bipartisan manner with all segments of the economy, both the labor                                                              
and management sides, on a number of issues.  The chairman                                                                      
introduced two members of the audience and regular visitors to the                                                              
committee's meetings:  Dwight Perkins, Special Assistant, Office of                                                             
the Commissioner, Department of Labor, and Ginny Fay, Legislative                                                               
Liaison, Office of the Commissioner, Department of Commerce and                                                                 
Economic Development.                                                                                                           
                                                                                                                                
HB 13 - REGULATION OF ESCROW ACCOUNTS                                                                                           
                                                                                                                                
Number 0620                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG announced the committee would take up HB 13, "An                                                              
Act relating to the characterization of, use of, segregation of,                                                                
deposit of, interest on, and disbursement of escrow money; relating                                                             
to the recording, filing, and delivery of escrow documents;                                                                     
relating to civil penalties for violations of certain escrow                                                                    
provisions by escrow settlement agents; relating to the supervision                                                             
by the Department of Commerce and Economic Development of escrow                                                                
settlement agents; authorizing the adoption of regulations to                                                                   
implement certain escrow provisions; and providing for an effective                                                             
date."  The chairman noted the presence of a proposed committee                                                                 
substitute (CS) and stated he would entertain a motion to adopt the                                                             
proposed CS as a working document.                                                                                              
                                                                                                                                
Number 0651                                                                                                                     
                                                                                                                                
REPRESENTATIVE HALCRO made a motion that the committee accept the                                                               
proposed CS, version 1-LS0126\D, Bannister, 1/22/99.  There being                                                               
no objections, the proposed CS was adopted as a work draft.                                                                     
                                                                                                                                
Number 0680                                                                                                                     
                                                                                                                                
JANET SEITZ, Legislative Assistant to Representative Norman                                                                     
Rokeberg, Alaska State Legislature, came forward to briefly present                                                             
HB 13.  She stated, "House Bill 13 is a bill that the                                                                           
Representative has worked on with escrow people, real estate                                                                    
people, concerned citizens.  It's a bill that was before the                                                                    
legislature last year."  Ms. Seitz explained, as a simple statement                                                             
on the legislation, HB 13 would mean the money that was to go to                                                                
the seller of residential property would be in hand before the                                                                  
title documents were recorded.  She referred to information in the                                                              
bill packets regarding situations where a seller and a buyer had                                                                
made a deal, all the documents had been signed, the title company                                                               
and the escrow agent had been told the funds were there, they                                                                   
recorded the documents, but the buyer either stopped the deal or                                                                
something happened, and the money was not there.  At this point,                                                                
however, the title was in the buyer's name, not the seller's, and                                                               
the seller did not have his or her money.  She noted HB 13 was                                                                  
intended to prevent those situations from occurring.  The sponsor                                                               
statement read:                                                                                                                 
                                                                                                                                
     At the request of the Alaska State Escrow Association,                                                                     
     this legislation was reintroduced in an effort to assure                                                                   
     consumers that their money will be safely received in a                                                                    
     timely order, delivered, and properly accounted for when                                                                   
     delivered to a settlement agent for a residential real                                                                     
     property transaction.  Currently, there are no Alaskan                                                                     
     laws addressing these concerns.                                                                                            
                                                                                                                                
     Consumers need to be assured that their funds (which can                                                                   
     be rather large amounts) will not be jeopardized and will                                                                  
     be available when needed during the course of a                                                                            
     residential real estate transaction.  From the seller's                                                                    
     viewpoint, the execution of a deed and the deposit of                                                                      
     that deed will bring forth proceeds upon recording of the                                                                  
     deed.  Under current Alaskan business practices, a buyer                                                                   
     deposits a cashier's check prior to recording a property                                                                   
     deed; however, this is not the case if a lender provides                                                                   
     the purchase funds.  In the case of a lender, the deed is                                                                  
     recorded along with the lender's lien and the funds are                                                                    
     deposited after the deed and other documents have been                                                                     
     recorded.                                                                                                                  
                                                                                                                                
     This procedure leaves sellers and settlement agents in                                                                     
     the middle.  The seller's interest in the property has                                                                     
     been transferred but no funds have been received.  This                                                                    
     bill requires that before a settlement agent records                                                                       
     documents transferring residential property (not                                                                           
     commercial property) or creating a security interest in                                                                    
     the property that the money required under the escrow                                                                      
     agreement must be "Good Funds" available for                                                                               
     distribution.                                                                                                              
                                                                                                                                
     An increasing number of incidents have occurred                                                                            
     demonstrating the need for Alaska to join the large                                                                        
     number of states having "Good Funds" legislation,                                                                          
     including Washington, California, and Oregon.  In the age                                                                  
     of growing electronic commerce, people are shopping the                                                                    
     Internet for mortgages and there is an increase in                                                                         
     competition from "outside" mortgage companies caused by                                                                    
     low interest rates.  Problems have arisen from failure of                                                                  
     these "outside" companies to properly fund these                                                                           
     transactions in a timely fashion, or, in the case of a                                                                     
     bankruptcy, at all.                                                                                                        
                                                                                                                                
     In drafting this bill, we have worked with various                                                                         
     interested citizens, business groups, and financial                                                                        
     institutions throughout Alaska.                                                                                            
                                                                                                                                
     I would urge your support of this legislation.                                                                             
                                                                                                                                
Number 0756                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG asked Ms. Seitz to explain the changes in the                                                                 
proposed CS.                                                                                                                    
                                                                                                                                
MS. SEITZ indicated the first difference from the original bill                                                                 
version was on page 4, lines 17 and 18.  She stated no change had                                                               
been made in the definition of "escrow money"; it had simply been                                                               
placed in alphabetical order, rather than following the definition                                                              
of "escrow transaction" as it had in the original bill.  Ms. Seitz                                                              
noted the next change was on page 5, lines 12 through 16.  She                                                                  
indicated the definition of "residential real property" was                                                                     
intended to clarify that commercial property was excluded; HB 13                                                                
concerned residential real property only.                                                                                       
                                                                                                                                
Number 0848                                                                                                                     
                                                                                                                                
REPRESENTATIVE BRICE wondered if commercial property should be                                                                  
included, asking how that worked.                                                                                               
                                                                                                                                
CHAIRMAN ROKEBERG replied that he, as the author of the                                                                         
legislation, believed, when reviewing the implementation of this                                                                
legislation and in working with commercial banks and other                                                                      
institutions, that requiring "good funds" for commercial                                                                        
transactions would not reflect common actual practices,                                                                         
particularly in large commercial transactions.  He indicated that                                                               
a multi-million dollar transaction could be funded in partial                                                                   
points or have other contingencies which needed to be met prior to                                                              
the release of certain funds.  The chairman said he thought the                                                                 
parties in the world of commercial real estate were well-protected,                                                             
understood the rules of the game, and didn't need extra "(indisc.)                                                              
protection," unlike residential consumers.  He noted that was the                                                               
legislation's intent; it was very much a consumer protection bill                                                               
intended solely to have good funds available to the residential                                                                 
consumer, rather than protecting commercial interests and things of                                                             
that nature.  He added that the bill would have been much more                                                                  
difficult to draft, and to have applicable, if it was intended to                                                               
be used for commercial transactions.                                                                                            
                                                                                                                                
Number 0944                                                                                                                     
                                                                                                                                
REPRESENTATIVE CISSNA asked if the title company couldn't simply                                                                
make it a standard of practice to not change the title until the                                                                
funds were in hand.  She questioned whether it needed to be a law.                                                              
                                                                                                                                
CHAIRMAN ROKEBERG referred to a witness who would be testifying via                                                             
teleconference.  He indicated the Alaska title companies would be                                                               
making this practice standard but he said there was no mandate.                                                                 
The chairman further indicated much of this had to do with                                                                      
electronic commerce and the Internet.  He stated Alaska consumers                                                               
could now shop for mortgages over the Internet and were choosing to                                                             
take lower interest mortgages from Internet mortgage providers.                                                                 
When they prepared to close the deal, the title or escrow agent,                                                                
who was the actual agent for the transactional closing, was then                                                                
subject to the transfer and disposition funds of this out-of-state                                                              
mortgage banker.  Chairman Rokeberg commented it had been the                                                                   
practice in certain instances that money had not been forthcoming                                                               
or that recordation had been required before funds were released.                                                               
He indicated this was the opposite of the bill's intent.  He said                                                               
Alaska would be joining at least the three other western states,                                                                
among other states, with similar legislation.  The chairman                                                                     
indicated that without HB 13 there would be nothing restricting the                                                             
business practice of withholding funds for "the daily and hourly                                                                
interest accrued to extraordinarily large amounts of funds that                                                                 
we're talking about here."  He termed this "the float" and said it                                                              
was the entire issue there.  Chairman Rokeberg stated the sponsor's                                                             
intent was to protect the individual residential consumer or the                                                                
average citizen, not letting them get involved in this banking and                                                              
financial institution practice.                                                                                                 
                                                                                                                                
Number 1065                                                                                                                     
                                                                                                                                
REPRESENTATIVE CISSNA mentioned, then, there had apparently been an                                                             
oversight on the part of the title companies, "for a kind of a                                                                  
(indisc.) ..."                                                                                                                  
                                                                                                                                
CHAIRMAN ROKEBERG said, "It's really a demand that the title                                                                    
companies are a service company, and they can set the procedures                                                                
but ... they need the help statutorily to make sure that the rules                                                              
of the game are played, and that's the intention here."  He                                                                     
indicated he hoped the additional testimony would provide                                                                       
clarification.                                                                                                                  
                                                                                                                                
Number 1093                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI noted the fair number of letters in                                                                    
support of the legislation in the bill packet on behalf of the                                                                  
escrow settlement agents and the lack of any materials from the                                                                 
other side, the lenders.  She asked what the lenders' response was.                                                             
                                                                                                                                
CHAIRMAN ROKEBERG referred to the notes on the previous legislative                                                             
session's HB 247, the same bill.  He stated they worked closely                                                                 
with the banking institutions and the Alaska Bankers Association to                                                             
modify the legislation to meet the requirements of those groups.                                                                
He indicated the Alaska Bankers Association had decided not to take                                                             
a formal position on the legislation, which he took as a positive,                                                              
legislatively speaking.  He commented he had spoken with one of the                                                             
association's officers within the previous hour and he also noted                                                               
their lobbyist was present at the meeting to ensure everything was                                                              
done correctly.  Chairman Rokeberg said the association had                                                                     
assisted in drafting the legislation, referring specifically to the                                                             
definition of "settlement agent" on page 5, line 17.  The chairman                                                              
noted that definition had been drafted with the help of First                                                                   
National Bank of Anchorage's David Lawer.  The chairman commented                                                               
that National Bank of Anchorage had a very large escrow business in                                                             
Alaska handling third-party accounts.  However, the bank acted more                                                             
as a conduit than a closer; therefore, defining the settlement                                                                  
agent as a closer within a real estate transaction was the result                                                               
of the banking industry's request to the committee.                                                                             
                                                                                                                                
Number 1233                                                                                                                     
                                                                                                                                
REPRESENTATIVE HARRIS stated he understood and appreciated the                                                                  
situation as a former real estate agent himself.  He asked if this                                                              
was the proper time to bring up a question from, he believed, the                                                               
Department of Commerce and Economic Development (DCED) that was in                                                              
the bill packet and was possibly about supervision.                                                                             
                                                                                                                                
CHAIRMAN ROKEBERG indicated he preferred to hear further testimony                                                              
first.                                                                                                                          
                                                                                                                                
Number 1270                                                                                                                     
                                                                                                                                
REPRESENTATIVE HALCRO recognized the number of letters in support                                                               
of the legislation in the bill packet, commenting on one situation                                                              
where the transaction had been done out of Oregon, the funds were                                                               
not received, and the company went bankrupt a couple of days later.                                                             
However, notwithstanding, he wondered if this legislation would                                                                 
impede consumers from shopping online or dealing with out-of-state                                                              
lending agencies to receive better interest rates.                                                                              
                                                                                                                                
Number 1294                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG stated that, in his opinion, this legislation                                                                 
would enable Alaskan financial institutions to better compete with                                                              
those outside institutions, particularly "in this changing age of                                                               
cyber-business."  He indicated this was because consumers would                                                                 
know that the in-state financial institutions could make funds                                                                  
available on the same day for settlement.  The chairman noted the                                                               
reference in the bill to federal law regarding wire transfers [page                                                             
3, lines 9 and 10, "(3) a depository check, including a cashier's,                                                              
certified, or teller's check, that is governed by 12 U.S.C. 4001 -                                                              
4010 (Expedited Funds Availability Act)."].  He indicated his                                                                   
recent research led him to believe that sometimes wire transfers                                                                
could not be closed until the following day.  However, he said they                                                             
had found circumstances where some of these outside mortgage                                                                    
companies, not necessarily related to a large banking or financial                                                              
institution, might delay as much as two to four days before making                                                              
solid, positive delivery of the funds to the escrow title insurance                                                             
agent, "trying to work the float."  Chairman Rokeberg pointed again                                                             
to this as the source of the problem.                                                                                           
                                                                                                                                
Number 1373                                                                                                                     
                                                                                                                                
MS. SEITZ indicated there were two additional changes in the                                                                    
proposed CS.  Line 24, page 5, contained the new short title [Good                                                              
Funds Act] and line 28, page 5, contained the new effective date                                                                
[July 1, 1999].  Ms. Seitz confirmed the effective date had been                                                                
changed from the year 2000.                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG indicated the committee would find from the                                                                   
testimony that the title businesses had changed their practices                                                                 
regarding this subject as a practical matter in the past couple of                                                              
months.  He indicated it seemed unnecessary to wait another 11                                                                  
months for this bill to take effect, noting the traditional                                                                     
practice of using the beginning of the fiscal year for enactment of                                                             
legislation without an immediate effective date.  Chairman Rokeberg                                                             
stated the committee would take testimony.                                                                                      
                                                                                                                                
[There was some discussion between the chairman and the Anchorage                                                               
teleconference moderator regarding the locations and number of                                                                  
witnesses.]                                                                                                                     
                                                                                                                                
Number 1460                                                                                                                     
                                                                                                                                
TERRY BRYAN, Board Member, Alaska Land Title Association;                                                                       
President, First American Title of Alaska, testified via                                                                        
teleconference from Anchorage in support of HB 13.  He indicated                                                                
both the Alaska Land Title Association, and himself as a private                                                                
entrepreneur with the First American Title of Alaska, saw this                                                                  
primarily as a consumer issue, and, from within the industry, did                                                               
not feel an in-state and/or out-of-state lender had a competitive                                                               
advantage resulting from electronic banking, electronic transfers                                                               
and so forth.  Mr. Bryan described that the seller and buyer went                                                               
through a real estate transaction in good faith, with the                                                                       
settlement agent facilitating that transaction.  He indicated the                                                               
title was transferred on completion and the buyer came into                                                                     
possession, but funds might or might not be available to the                                                                    
seller, even though the seller might need those funds for another                                                               
transaction.  Noting there were 25 to 30 settlement agents                                                                      
throughout the state, Mr. Bryan commented that the recordation of                                                               
a real estate transaction as a "nonavailability" of immediate funds                                                             
occurred a few times every week; it was not necessarily a very rare                                                             
occurrence.  Mr. Bryan said it could simply be that the transaction                                                             
had been completed and was recorded, the money was being wired from                                                             
one bank to another, and, for whatever reason, the money did not                                                                
get transferred that day.  He noted a recent three-day weekend,                                                                 
describing a situation that occurred in their office:  a buyer was                                                              
in possession of a home but the money was not transferred for four                                                              
days because a clerk keyed the wrong account number.  Mr. Bryan                                                                 
stated there could be many reasons a transaction was completed but                                                              
the funds were not being held by either a settlement agent or the                                                               
trust account; the funds were still with a funding source "either                                                               
'Outside,' different city, different location."  He indicated the                                                               
legislation's purpose was more to protect the integrity of the                                                                  
transaction and the buyer and seller.                                                                                           
                                                                                                                                
Number 1622                                                                                                                     
                                                                                                                                
MR. BRYAN referred to one of the committee member's earlier                                                                     
question about whether this wasn't a settlement agent issue and                                                                 
couldn't the settlement agents make that a matter of policy.  Mr.                                                               
Bryan indicated he did feel, on the surface, that this was a part                                                               
of all settlement agents' fiduciary responsibility to ensure the                                                                
viability and integrity of any particular transaction.  However, he                                                             
stated, with 25-plus settlement agents in Alaska and the same                                                                   
number or more mortgage companies and/or real estate lenders buying                                                             
for different businesses, there was the likelihood that many                                                                    
companies, in order to expedite a transaction and to "facilitate                                                                
(indisc.) possession," might not always follow what might be a                                                                  
sound business practice.  He stated they felt "good funds"                                                                      
legislation was needed to protect the sanctity of the transaction                                                               
and the individual buyer and seller."                                                                                           
                                                                                                                                
Number 1691                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG referred to an earlier conversation with Mr.                                                                  
Bryan and Ms. Seitz about commission letters being included as                                                                  
"items" under the bill's definition section.                                                                                    
                                                                                                                                
MR. BRYAN said he did not believe that was his correspondence.                                                                  
                                                                                                                                
Number 1725                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked if Mr. Bryan felt the actions of the                                                             
settlement agents he described as occurring were inadvertent, or                                                                
were they being done by the settlement agents in an effort to make                                                              
the clients happy.  She commented that Representative Rokeberg                                                                  
indicated the industry's practice in the past few months had been                                                               
to delay recordation until the funds were available.                                                                            
Representative Murkowski also noted she had been reviewing the                                                                  
bill's civil penalty section.                                                                                                   
                                                                                                                                
Number 1778                                                                                                                     
                                                                                                                                
MR. BRYAN replied, to clarify Chairman Rokeberg's comments, that                                                                
they were hoping, effective February 1, 1999, it would become the                                                               
practice of the title companies to follow sound business practices                                                              
and a good funds format "in receiving funding prior to recordation                                                              
subsequently prior to further disbursement."  He indicated that                                                                 
practice was presently rarely occurring among the 20-plus                                                                       
settlement agents from the title industry.  Mr. Bryan stated the                                                                
Alaska Land Title Association had passed a unanimous resolution at                                                              
their December board meeting, subsequently adopted by all the                                                                   
members, that effective February 1, 1999, this policy would be                                                                  
voluntarily followed.  Mr. Bryan said, therefore, they were moving                                                              
in that direction.  He noted not following a good funds practice                                                                
had occurred over the course of the years for many different                                                                    
reasons, whether competitive or "in working with a (indisc.) -- a                                                               
good relationship with a specific lender, a mistake, absolutely no                                                              
one's fault, not trying to push a situation to get it closed                                                                    
quicker, and anything else from equipment breaking down."  He said                                                              
multiple situations had occurred since the first of the year,                                                                   
where, for example, they were recording a transaction and had taken                                                             
the check offer, the person's car ran out of gas as he or she was                                                               
delivering the check and the check delivery was forgotten, but the                                                              
transaction was already recorded and the title was transferred.                                                                 
                                                                                                                                
Number 1883                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI initially indicated some confusion about                                                               
the imposition of the civil penalty for inadvertent mistakes,                                                                   
subsequently noting it only applied to willful violations.                                                                      
                                                                                                                                
MR. BRYAN commented, regarding the civil penalty, that there would                                                              
be no recordation until the receipt of funds if the good funds                                                                  
procedure was being followed, and so, therefore, no civil penalty                                                               
applied.  He indicated again that the good funds procedure was not                                                              
currently being followed, stating the transaction was signed and                                                                
recorded and then the settlement agent asked for the funds.  He                                                                 
said that because the good funds procedure was not currently being                                                              
followed, there were no willful or unwillful acts, the procedure                                                                
simply wasn't being followed.                                                                                                   
                                                                                                                                
CHAIRMAN ROKEBERG confirmed Mr. Bryan had concluded his testimony.                                                              
                                                                                                                                
Number 1951                                                                                                                     
                                                                                                                                
ANN RINGSTAD testified off-net via teleconference from Fairbanks in                                                             
support of HB 13.  She related they had sold their house in                                                                     
Anchorage approximately four years ago, signing all the documents                                                               
and moving out just before Christmas.   She said the buyers delayed                                                             
for a couple of weeks, finally signing off on all the documents and                                                             
moving into the house.  Ms. Ringstad stated the escrow agent called                                                             
the bank "Outside," asking if the funds were coming by inter-wire                                                               
transfer.  The bank confirmed the funds were coming and the deed                                                                
was recorded into the buyer's name.  After moving into the house,                                                               
the buyer called the bank in Oregon to stop the funds.  She noted                                                               
the funds were stopped, the house was now in the buyer's name, and                                                              
the sellers had no money for the house but were still liable for it                                                             
and the mortgage.  Ms. Ringstad stated it took them about four                                                                  
months to straighten the situation out, noting it was a very                                                                    
emotionally "upheaving" experience and she was hoping it would not                                                              
happen to anyone else.  She indicated the problem with the                                                                      
inter-transfer of funds was the escrow companies' procedures to                                                                 
record after receiving a verbal affirmation that funds were coming.                                                             
She said the problem was, in fact, that the deed was recorded and                                                               
the funds were never received.  Ms. Ringstad stated a number of                                                                 
attorneys told them they would have probably won their case [in                                                                 
court] but it would have taken two years and $30,000.  She noted                                                                
they eventually did get the house back.  Ms. Ringstad emphasized                                                                
her concern was that the funds actually be in hand before the                                                                   
documents were recorded.                                                                                                        
                                                                                                                                
Number 2067                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG stated that was the bill's intention, indicating                                                              
he had inquired with National Bank of Alaska and double-checked the                                                             
United States Code on wire transfer in response to a concern voiced                                                             
by Ms. Ringstad.  The chairman said a wire transfer might be                                                                    
cleared the following business day under United States statute and,                                                             
additionally, depending on the time of day in Alaska when a wire                                                                
transfer occurred, it might clear the next day.  However, he noted                                                              
that was "consistent with this legislation inasmuch as the                                                                      
recordation is an act subsequent to the clearing of the funds."                                                                 
Chairman Rokeberg stated that was the mandate of the bill, "You                                                                 
cannot record until the funds are cleared and even if there's a                                                                 
delay from a timing of an electronic wire transfer, they cannot                                                                 
record until the funds are cleared.  In the real instance it was                                                                
the (indisc.), not the actual transfer of the funds or receipt of                                                               
the transfer."                                                                                                                  
                                                                                                                                
MS. RINGSTAD agreed, noting they never received the funds but the                                                               
escrow agent was told that the funds were wired.                                                                                
                                                                                                                                
CHAIRMAN ROKEBERG said, "(Indisc.) with this book because of the                                                                
steps you have to follow through ... it's certainly the intention                                                               
of the author that the language is sufficient to do that."  He                                                                  
thanked Ms. Ringstad for her letter and testimony, noting he knew                                                               
both brokers who had been involved in the transaction.  He                                                                      
commented it was actually a famous story in the annals of Alaska                                                                
real estate [history].  He confirmed with Ms. Ringstad the problem                                                              
resulted from a "condensating" skylight, but the buyer told the                                                                 
bank in Oregon the house was flooding.  The chairman accepted Ms.                                                               
Ringstad's thanks for the legislation.                                                                                          
                                                                                                                                
Number 2148                                                                                                                     
                                                                                                                                
MARY ANN ROWE, President, Alaska Land Title Association; President,                                                             
Kachemak Bay Title, Incorporated, testified via teleconference from                                                             
Homer in support of HB 13.  She indicated she thought Mr. Bryan had                                                             
done an excellent job of explaining why the Alaska Land Title                                                                   
Association supported HB 13.  She said would just like to reiterate                                                             
a couple things regarding the bill, mentioning the December                                                                     
resolution and commenting that they were now working with the                                                                   
majority of the bankers and mortgage bankers in Alaska to enact                                                                 
this resolution on February 1.  Ms. Rowe noted they had received                                                                
positive responses but continued to feel HB 13 was necessary.  She                                                              
indicated they were still concerned about those who solely existed                                                              
on "floats," and some lenders who felt it really wasn't the problem                                                             
of the title companies that the funds came after recording.  Ms.                                                                
Rowe stated their concern, besides being a good business practice,                                                              
was to make sure the consumer was protected.  She indicated these                                                               
problems occurred throughout the state, even in Homer, relating a                                                               
recent situation where a delivery person twice forgot to take the                                                               
check to the bank.  She stated she thought some of the definitions                                                              
were excellent, noting definitions of "escrow transaction" and                                                                  
"settlement agent" had long been needed, and the ones in HB 13 were                                                             
very acceptable to the industry.  She urged the committee to enact                                                              
HB 13 that year.                                                                                                                
                                                                                                                                
Number 2261                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG asked if the resolution and policy to be                                                                      
established in February was voluntary in nature.                                                                                
                                                                                                                                
MS. ROWE replied it was voluntary but their active membership of                                                                
all the title companies in the state was going to completely                                                                    
enforce it, with all agreeing in writing to adhere to the February                                                              
1 resolution.  She confirmed to Chairman Rokeberg that there was                                                                
nothing mandating mortgage brokers from "floating" or not                                                                       
cooperating with the title companies.  She commented that they, as                                                              
individual companies, would simply have to demand that those funds                                                              
be delivered prior to recordation; HB 13 was what they needed                                                                   
behind this.  Ms. Rowe mentioned a list of "Lower 48" mortgage                                                                  
companies which had declared bankruptcy or which required                                                                       
underwriter approval before closing that she had received from her                                                              
underwriter.  She noted they received these lists about once a                                                                  
month.  Ms. Rowe confirmed to Chairman Rokeberg she meant the title                                                             
company underwriters, not mortgage bankers or lenders, by her use                                                               
of the term "underwriter."  She mentioned "First American,"                                                                     
"Pacific Northwest" and "Old Republic" as examples.                                                                             
                                                                                                                                
Number "                                                                                                                        
                                                                                                                                
DAVID A. LAWER, Senior Vice President and General Counsel, First                                                                
National Bank of Anchorage; Alaska Bankers Association, testified                                                               
via teleconference from Anchorage on behalf of the Alaska Bankers                                                               
Association.  He noted he had testified the previous year against                                                               
the bill, generally speaking, because of his view that it might                                                                 
have unintended consequences in connection with one aspect of the                                                               
business of First National Bank of Anchorage and National Bank of                                                               
Alaska.  He stated the draft went a long way toward eliminating                                                                 
that unintended effect.  Mr. Lawer apologized for not commenting                                                                
sooner on his advance draft copy.  He commented he would                                                                        
recommended one simple additional change to ensure that this would                                                              
not reach the escrow business of the two banks.  Mr. Lawer refuted                                                              
rumors that the banks were opposed to HB 13, confirming the                                                                     
chairman's earlier comments regarding the Alaska Bankers                                                                        
Association's decision not to take a position on the legislation.                                                               
He stated that was largely because HB 13 operated favorably in many                                                             
respects in so far as Alaskan banks were concerned, presenting them                                                             
with some sort of competitive advantage, whether this was an                                                                    
intentional effect or not.  Mr. Lawer noted, however, the                                                                       
legislation in its present form did not necessarily accomplish all                                                              
that was intended.  He requested the definition of "settlement                                                                  
agent" be changed by deleting five words and adding one.  He also                                                               
commented he felt the definition of "residential real property"                                                                 
would create some problems; it did not exclude certain commercial                                                               
transactions as was intended.  As an example, he indicated the sale                                                             
of 100 homes in a block by a developer to another developer or to                                                               
a retailer would not be excluded by the current definition.                                                                     
[TESTIMONY INTERRUPTED BY TAPE CHANGE]                                                                                          
                                                                                                                                
TAPE 99-1, SIDE B                                                                                                               
Number 0001                                                                                                                     
                                                                                                                                
MR. LAWER continued, "... (indisc.) handed to the title company                                                                 
(indisc.) imperfect.  I do see a lot of effort being made ... with                                                              
the provisions to make sure that the title company has collected                                                                
funds before their (indisc.) lawfully to record documents in                                                                    
connection with the covered transaction.  That goes a long way to                                                               
assure that somebody'll get paid.  Nevertheless, collected funds                                                                
doesn't mean that whatever item it is, whether it be an electronic                                                              
transfer or a check that was deposited, it is not an item that can                                                              
be reversed.  ... Available for withdrawal as a matter of right                                                                 
does speak to the title companies' opportunity to withdraw, but                                                                 
notwithstanding that, if it hadn't been withdrawn ... if a                                                                      
transaction is reversed or in the event of a bankruptcy, I can                                                                  
think of potential situations in which the credit given for an item                                                             
or the credit given for a wire can be reversed, so it's imperfect                                                               
in that sense.  ... I will offer some assistance if it's requested                                                              
in that connection, but that's not grounds upon which (indisc.) the                                                             
Bankers Association [Alaska Bankers Association] or me speaking on                                                              
behalf of the First National Bank [First National Bank of                                                                       
Anchorage] would oppose the legislation."  Mr. Lawer commented the                                                              
members of his association had discussed this and agreed not to                                                                 
take a position.  However, he said he thought their conversation                                                                
had led to this conclusion:  while this legislation did not impact                                                              
them negatively, it seemed to be a matter of competition and                                                                    
industry that could be accomplished by the title companies through                                                              
self-policing.  He indicated the reaction of the Alaska Bankers                                                                 
Association was somewhat that "once you start having some impact on                                                             
competition in an industry you start down a very slippery slope,"                                                               
and they felt the legislation was unnecessary.                                                                                  
                                                                                                                                
Number 0123                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG asked Mr. Lawer which five words he would like to                                                             
see removed.                                                                                                                    
                                                                                                                                
MR. LAWER replied the change was in the definition of "settlement                                                               
agent" on page 5, line 20.  He recommended the deletion of "a loan                                                              
during the term of the loan" and the insertion of "indebtedness.                                                                
He indicated he was completely confident this change would prevent                                                              
any unintended consequences to the other portion of the business of                                                             
First National Bank of Anchorage and National Bank of Alaska that                                                               
they understood HB 13 was not targeting.                                                                                        
                                                                                                                                
Number 0195                                                                                                                     
                                                                                                                                
REPRESENTATIVE HALCRO asked Mr. Lawer if he felt the legislation                                                                
improved consumer protection, again noting the letters of support                                                               
in the bill packet.  He mentioned Mr. Lawer's testimony about                                                                   
competition and the association's neutral position because it felt                                                              
the legislation gave its members a competitive advantage.                                                                       
                                                                                                                                
MR. LAWER referred to Ms. Ringstad's situation, commenting she had                                                              
testified she had been told the money was on the way, which left                                                                
her open to some considerable difficulty.  He asked the committee                                                               
if they would conclude a transaction and transfer their interest in                                                             
property on the promise that the money was on the way.  Mr. Lawer                                                               
said yes, in that sense, the legislation would, to some extent,                                                                 
protect the unwitting consumer from the prospect of the delay                                                                   
involved when payment was not received or when payment was revoked                                                              
at a time when it could still be revoked and before the transaction                                                             
was concluded.                                                                                                                  
                                                                                                                                
Number 0275                                                                                                                     
                                                                                                                                
REPRESENTATIVE SANDERS asked if the problem was nonpayment or if                                                                
the problem was premature filing.                                                                                               
                                                                                                                                
MR. LAWER replied he thought "premature" was not an accurate word.                                                              
He said they did have a system that called for the recordation of                                                               
documents only during a limited period of time.  He noted this did                                                              
create some practical problems in connection with closing a                                                                     
transaction if it involved delay or a nuisance that, to some                                                                    
extent, interfered with legitimate expectations in connection with                                                              
the transaction.  Mr. Lawer said he didn't know a common cure, but                                                              
suggested there could be changes in the system of recordation which                                                             
could considerably improve things for the title companies, and also                                                             
outside lenders.  Mr. Lawer stated the current system and the                                                                   
changes proposed by this legislation, whether enacted by                                                                        
legislation or by agreements of the title companies not to record                                                               
until they had money in hand, worked in favor of local lenders to                                                               
some extent.  He indicated this was because:  a) local lenders                                                                  
could accomplish the process quicker than outside lenders, and b)                                                               
it put the lenders in a position where they could charge at least                                                               
an additional day of interest in comparison to their present                                                                    
practices.  He noted it operated in their favor in both respects.                                                               
Mr. Lawer said, in response to Representative Sanders' further                                                                  
question about whether this situation could be cured by voluntary                                                               
actions on the part of the association without legislation, that                                                                
was the point he had tried to make.  However, he reiterated that                                                                
the Alaska Bankers Association had decided not to take a position                                                               
on the legislation.                                                                                                             
                                                                                                                                
Number 0392                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI asked Mr. Lawer if he had any suggested                                                                
language regarding the definition of "residential real property".                                                               
                                                                                                                                
MR. LAWER indicated the transaction should be defined in terms of                                                               
not only the property being transferred, but also the participants.                                                             
He said they were talking about a covered transaction being one                                                                 
involving the sale or transfer of residential real property between                                                             
consumers, noting he agreed with the chairman's comment regarding                                                               
retail rather than wholesale.  Mr. Lawer said he could make some                                                                
suggestions regarding language, if given some time.                                                                             
                                                                                                                                
Number 0454                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG thanked Mr. Lawer for his testimony.  The                                                                     
chairman declared for the record that he, the chairman, was a real                                                              
estate broker by profession and also indicated he held stock in                                                                 
National Bank of Alaska and First National Bank of Anchorage.                                                                   
                                                                                                                                
Number 0494                                                                                                                     
                                                                                                                                
MICHAEL PRICE testified via teleconference from Anchorage in                                                                    
support of HB 13.  He noted that although he was a member of the                                                                
Alaska Land Title Association, he was testifying on his own behalf                                                              
as a 24-year real estate practitioner.  Mr. Price described some                                                                
real estate closing practices.  He said the United States could                                                                 
probably be divided into half, stating the Eastern states did what                                                              
was called "table" closings, where the buyer and the seller met to                                                              
exchange documents and payment and this type of legislation was not                                                             
really needed.  Mr. Price said he believed the majority of western                                                              
states had passed "good funds" legislation.  He noted he believed,                                                              
at least, that most states operated off of a "good funds" concept,                                                              
with Alaska being one of the few that probably did not.  He                                                                     
referred to the voluntary resolution of the Alaska Land Title                                                                   
Association, but reminded the committee that not all escrow closing                                                             
agents belonged to the association.  Mr. Price said he knew of one                                                              
independent escrow company, and he also commented there were no                                                                 
prohibitions against future escrow companies with less sound and                                                                
consumer-oriented business practices.  He indicated the                                                                         
association's voluntary resolution could be voided in the future                                                                
and that he still saw need for legislation.  Additionally, Mr.                                                                  
Price said he felt the definition of "residential real property" on                                                             
page 5 did not necessarily include condominiums and he suggested                                                                
perhaps that could be examined in the coming week or so.                                                                        
                                                                                                                                
Number 0624                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG asked Mr. Price if he was an attorney at law.                                                                 
                                                                                                                                
MR. PRICE confirmed he was an attorney and had been practicing in                                                               
Alaska for 24 years, stating, "Twenty-one of which I was proud to                                                               
practice with (indisc.), one of your past members of the                                                                        
legislature."                                                                                                                   
                                                                                                                                
CHAIRMAN ROKEBERG indicated the committee would be taking up the                                                                
definition of residential real property later that day, commenting,                                                             
"(Indisc.) bit of a scrutiny, followed by deleting the last section                                                             
of it and then introducing in the wholesale aspect, to clarify that                                                             
conceptually."                                                                                                                  
                                                                                                                                
Number 0657                                                                                                                     
                                                                                                                                
JEFF BLAKE, Vice President, Pacific Rim Title Insurance Agency,                                                                 
Incorporated, testified via teleconference from Anchorage in                                                                    
support of HB 13.  He noted he had submitted a letter in support of                                                             
legislation the previous Friday to the committee by facsimile and                                                               
said he would just like to speak to a couple issues he had heard                                                                
there that day.  Mr. Blake noted that in almost all escrow closings                                                             
in the title companies, the funds the buyers owed were required by                                                              
the title companies to be in good, hard funds.  He also referred                                                                
parenthetically to instances back in the 1980s when, at times, the                                                              
title companies would have required the same of the sellers' funds                                                              
owed to close the transaction.  Mr. Blake described that there were                                                             
two transactions in the average deal:  1) the transaction between                                                               
the seller and the buyer, and 2) the transaction between the buyer                                                              
and his or her lender.  Usually, the funds the buyer had negotiated                                                             
to borrow to purchase the property were the ones they had problems                                                              
receiving in a timely manner.  Mr. Blake indicated the lending                                                                  
institutions have instructed the title companies that money will                                                                
not be funded until the lender's deed of trust is in a first lien                                                               
position.  He further indicated this put the title companies in a                                                               
difficult position when attempting to comply with good practices by                                                             
requiring everything to be deposited on the two transactions.  He                                                               
also referred to Mr. Price's comments about what was voluntary that                                                             
day, and what everyone wanted to follow without any enforcement                                                                 
mandates or provisions, might not be voluntary tomorrow.                                                                        
                                                                                                                                
MR. BLAKE additionally referred to an issue raised as to                                                                        
legislation and regulation regarding insurance.  He noted the State                                                             
of Alaska, through its "insurance department," had sent out a                                                                   
requirement that all claims to be paid in Alaska by insurance                                                                   
companies had to be paid on an in-state bank, or carry a cover                                                                  
letter indicating an in-state bank that would honor that check on                                                               
presentation.  He stated, "Maybe the consumer issue is being looked                                                             
at from other aspects too, because most insurance companies are not                                                             
... based in this state.  So this is a type of issue that us                                                                    
Alaskans, so to speak, are concerned with -- not just necessarily                                                               
the electronic, but we want to make sure that we get paid for what                                                              
we worked hard to obtain and pass on."  Mr. Blake then reiterated                                                               
support for the legislation.                                                                                                    
                                                                                                                                
Number 0787                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG referred to his concern about the definition of                                                               
"items" [page 5, line 9, (6) "item"], specifically as it related to                                                             
commission letters, for example.  He stated, "When the broker will                                                              
have a commission letter that's not -- and the funds are actually                                                               
not in hand of the settlement agent (indisc.) are accounted for on                                                              
a debit-credit basis.  Do we need to expand that as part of the                                                                 
list of the items, or is that because it's already just accounted                                                               
for in the closing statement ..."                                                                                               
                                                                                                                                
MR. BLAKE indicated he didn't feel that was necessary, stating,                                                                 
"That would be part and parcel as to the credit (indisc.) debit                                                                 
items within the actual settlement (indisc.)."                                                                                  
                                                                                                                                
CHAIRMAN ROKEBERG said, "Okay, because just to use the word  item'                                                              
there is actually something that appears in the definition to be                                                                
equivalent to a cash or convertible to cash."                                                                                   
                                                                                                                                
MR. BLAKE replied that was his understanding, that that was more a                                                              
banking term than an escrow term.  He confirmed for the chairman                                                                
that other debits and credits like pre-paid insurance, utility                                                                  
bills, et cetera, were commonly part of the closing statement and                                                               
it was his understanding this would be outside the realm of the                                                                 
legislation's intent.  In response to the example of a larger sum                                                               
like an earnest money payment held in escrow by a broker which                                                                  
would be debited against the commission payable, Mr. Blake                                                                      
indicated he did not think this would be an item under the bill's                                                               
definition.  He noted, "It would be items that would go on the                                                                  
settlement statement that would go to the bottom line to determine                                                              
who deposits what funds to complete the transaction."                                                                           
                                                                                                                                
Number 0882                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG asked Mr. Blake's view on Mr. Lawer's                                                                         
recommendation to change the definition of settlement agent.                                                                    
                                                                                                                                
MR. BLAKE indicated he had no objections to that change.                                                                        
Remembering an additional point, he added, "I hear a lot of concern                                                             
about the monies being available and (indisc.) being available, but                                                             
in the bill itself ... I think the recording is contingent upon us                                                              
having funds necessary to be dispersed at that time."  He noted                                                                 
that didn't necessarily mean the entire purchase price; it was                                                                  
basically just what the parties had agreed upon.  Mr. Blake gave                                                                
the example he and the chairman had discussed the previous year of                                                              
a $6 million loan on a projected construction project, commenting                                                               
that they only needed the lot sale price to be disbursed at the                                                                 
time they were recording.                                                                                                       
                                                                                                                                
Number 0929                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG indicated that was the reason they were trying to                                                             
exclude commercial transactions.                                                                                                
                                                                                                                                
MR. BLAKE noted, in turn, that the disbursement of certain funds by                                                             
the settlement agent could be excluded by agreement.                                                                            
                                                                                                                                
CHAIRMAN ROKEBERG noted, "That would also provide for what would be                                                             
typically an individual construction loan for a residence between                                                               
an individual and a banking institution ... where there's progress                                                              
payments and therefore ... periodic draws against the principal?"                                                               
He confirmed Mr. Blake agreed.                                                                                                  
                                                                                                                                
MR. BLAKE added, "That would allow that so that your initial draft                                                              
could pay for the lot -- the bank would not have to disburse the                                                                
whole construction loan at that point."                                                                                         
                                                                                                                                
Number 0974                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI confirmed they were discussing page 2,                                                                 
lines 22 through 26, on disbursement of escrow money, subsection                                                                
"a" [Sec. 34.80.040(a)].                                                                                                        
                                                                                                                                
Number 1008                                                                                                                     
                                                                                                                                
D.J. WEBB, Past Legislative Affairs Committee Chair and Past                                                                    
President, Alaska State Escrow Association; Senior Escrow Officer,                                                              
First American Title of Alaska, testified via teleconference from                                                               
Anchorage in support of HB 13.  She stated the escrow association                                                               
had been striving for the legislation for several years and was                                                                 
very appreciative of the chairman's sponsorship.  Ms. Webb noted,                                                               
"Buyers and sellers normally come to the escrow table expecting                                                                 
that all parties are complying with the rules of escrow.  Escrow's                                                              
where monies and documents are deposited with a third party so that                                                             
there could be no withdrawal of those items."  She commented that                                                               
the general public was not familiar with the lenders not funding                                                                
into escrow and was quite surprised when funds were not available.                                                              
Ms. Webb said she thought HB 13 was important to get the lenders on                                                             
the same rules of escrow:  the funds have to be available before                                                                
the transaction is recorded.                                                                                                    
                                                                                                                                
MS. WEBB stated she did not think it was out of line to expect                                                                  
Alaska to follow suit with the other western states which have                                                                  
enacted the "good funds regulation."  She noted real estate has                                                                 
always been an extremely competitive industry and customer demands                                                              
often dictate business practices.  It has not been unusual for a                                                                
lender to specify compliance with their nature of business.  She                                                                
indicated she did not think that simply having the title companies                                                              
all agree to a certain practice would alleviate that pressure from                                                              
lenders.  She stated they wanted a safe area for real estate                                                                    
transactions to occur, commenting they felt the passage of HB 13                                                                
was very important to ensure that consumer protection, so that all                                                              
industry players were on the same set of rules.                                                                                 
                                                                                                                                
Number 1142                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG confirmed there were no other witnesses wishing                                                               
to testify on HB 13, noting some materials had been received from                                                               
the Kodiak Legislative Information Office (LIO) to be included in                                                               
the bill packet.  The chairman announced the public testimony on HB
13 was closed.  He stated he would entertain a "conceptual"                                                                     
amendment to page 5, subsection 8, beginning on line 20.                                                                        
                                                                                                                                
REPRESENTATIVE HALCRO moved that the committee make an amendment to                                                             
the proposed CS on page 5, subsection 8, line 20, by deleting the                                                               
wording "a loan during the term of the loan" and inserting                                                                      
"indebtedness", per Mr. Lawer's recommendation.                                                                                 
                                                                                                                                
Number 1212                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG asked if there were any objections to the                                                                     
amendment.  There being none, Conceptual Amendment 1 was adopted.                                                               
                                                                                                                                
Number 1228                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG himself moved a conceptual amendment on the                                                                   
definition of "residential real property" on page 5, subsection 7,                                                              
beginning on line 14.  He offered the deletion of the wording on                                                                
line 14 after "fewer" and before "if" to the end of the paragraph,                                                              
deleting, "if the real property has one or more other buildings,                                                                
those buildings may not contain dwelling units and may not be used                                                              
for commercial purposes;".  The chairman said he thought this                                                                   
confused the issue and asked "that the drafter add clarifying                                                                   
language to permit wholesale activities and to make sure that such                                                              
attached housing as condominium developments are not swept into an                                                              
exclusionary portion of the definition."  He asked if there were                                                                
any objections to Conceptual Amendment 2.                                                                                       
                                                                                                                                
Number 1297                                                                                                                     
                                                                                                                                
REPRESENTATIVE BRICE confirmed the language to be deleted.                                                                      
                                                                                                                                
CHAIRMAN ROKEBERG indicated he thought the testimony emphasized                                                                 
that wholesale activities should not be proscribed, and attached                                                                
housing like condominiums should be covered.                                                                                    
                                                                                                                                
Number 1372                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG asked if there were any objections to the                                                                     
amendment.  There being no objections, Conceptual Amendment 2 was                                                               
adopted.  The chairman asked the will of the committee regarding                                                                
the legislation.                                                                                                                
                                                                                                                                
REPRESENTATIVE BRICE questioned whether the chairman wished to make                                                             
any changes to the definition of "item" on page 5, regarding                                                                    
letters of credit or possibly other issues.                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG indicated he felt the testimony of Mr. Blake                                                                  
showed for the record the issue had been addressed and there was                                                                
clarity on that.                                                                                                                
                                                                                                                                
Number 1438                                                                                                                     
                                                                                                                                
REPRESENTATIVE CISSNA asked if the DCED had any recommendations on                                                              
HB 13.                                                                                                                          
                                                                                                                                
CHAIRMAN ROKEBERG noted the department was in attendance at the                                                                 
meeting and confirmed no one from the department wished to make any                                                             
comments.  The chairman indicated there had been some concern from                                                              
the department about the supervision of the bill's provisions,                                                                  
stating, "But we have actually even given them the right to                                                                     
regulate but they don't have to take it up, and there is a private                                                              
cause of action here - that was the intention of the sponsor - we                                                               
do not want to create a bureaucracy.  ... The question that                                                                     
revolves around the issue of whether or not the industry itself                                                                 
could be self-policing ... I think is a valid question, and I,                                                                  
certainly for one philosophically, particularly, do not want to add                                                             
[an] additional clause to the bill.  But it seems to me because of                                                              
interstate commerce and the competition from outside financial                                                                  
institutions, that if we don't codify this in our statutes as the                                                               
other western states have, we will be putting our institutions in                                                               
a situation where they weren't being competitive on an equal basis.                                                             
In other words, there could be mortgage companies and even                                                                      
independent escrow agents that were not members of the Alaska                                                                   
association who conduct themselves as they so desired with no                                                                   
constraints." Indicating his dislike of additional laws and                                                                     
regulations, the chairman, however, stated it was clear from the                                                                
evidence and the testimony that there was a need in the commerce of                                                             
the state to be able to provide this type of protection to                                                                      
individuals.                                                                                                                    
                                                                                                                                
Number 1553                                                                                                                     
                                                                                                                                
REPRESENTATIVE HALCRO indicated he thought, from comments attached                                                              
to the fiscal note, that the DCED was concerned about some                                                                      
liability against the state for not supervising in the case of                                                                  
loss.  He asked if the chairman felt the department would be                                                                    
protected by the ability given, but not mandated, to regulate.                                                                  
                                                                                                                                
CHAIRMAN ROKEBERG replied he did not care to speculate on the                                                                   
potential legal liabilities of the state "for omission, given this                                                              
litigious nature of society.  We can only hope and pray that they                                                               
won't."  The chairman indicated he was not aware of any instance                                                                
where the failure to regulate in that regard, in the absence of                                                                 
anything else, showed liability.  He noted there were many areas of                                                             
private conduct and commerce in the state that were not regulated                                                               
at all.                                                                                                                         
                                                                                                                                
Number 1620                                                                                                                     
                                                                                                                                
GINNY FAY, Legislative Liaison, Office of the Commissioner,                                                                     
Department of Commerce and Economic Development, came forward to                                                                
testify.  She stated the committee could address this situation one                                                             
way by changing on page 2, line 2, the "shall" to "may" [current                                                                
language: "The department shall supervise the compliance of                                                                     
settlement agents with the provisions of this chapter ...."].  Ms.                                                              
Fay noted she interpreted the current language as obligating the                                                                
department to supervise if there was a complaint.  Ms. Fay also                                                                 
offered an alternative solution, if the committee was concerned                                                                 
about excessive regulation bureaucracy, of deleting bill sections                                                               
34.80.070 and 34.80.080 completely, so there could be no confusion                                                              
that it would be a civil process not involving the DCED.  She noted                                                             
the department would not have any problems with that deletion.                                                                  
                                                                                                                                
Number 1672                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG commented he would be happy to debate that,                                                                   
questioning whether staff had any objections to the removal of                                                                  
those two bill sections.  The chairman stated he would entertain a                                                              
motion to delete those two sections if the committee wished to do                                                               
so.                                                                                                                             
                                                                                                                                
Number 1721                                                                                                                     
                                                                                                                                
REPRESENTATIVE BRICE indicated he thought there was a certain                                                                   
amount of value to allowing a consumer in this situation to                                                                     
approach the  department as an intermediary step rather than filing                                                             
a lawsuit, given the problems with the court system as it was.  He                                                              
confirmed the chairman's comment that it provided more work for the                                                             
department.                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG stated, "... providing the private cause of                                                                   
action ... that's why I left it in ..."                                                                                         
                                                                                                                                
REPRESENTATIVE BRICE noted, then, on the other hand, what the                                                                   
alternative was.  He said the next step was the courts and referred                                                             
to the backlog of judicial cases.  He said it might be that the                                                                 
department could be able to act as an arbiter in a controverted                                                                 
case to minimize the problems.                                                                                                  
                                                                                                                                
Number 1807                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG commented that the department had bee kind enough                                                             
to provide a zero fiscal note, stating he would be the first to                                                                 
recognize there was a potential for the DCED to take up a complaint                                                             
if it came forward.  He  noted this, in essence, did equate to some                                                             
cost.  On the other hand, he indicated Representative Brice had                                                                 
made the other argument, which was why that had been left in the                                                                
bill.                                                                                                                           
                                                                                                                                
REPRESENTATIVE BRICE continued, asking how many times per year this                                                             
situation would occur.  He confirmed the chairman felt it would not                                                             
happen that often.                                                                                                              
                                                                                                                                
CHAIRMAN ROKEBERG indicated the importance was that the Alaska Land                                                             
Title Association was making a change of practice he felt they                                                                  
would not have been comfortable making without the accompanying                                                                 
legislation.  He noted the practice itself would be self-policing                                                               
and he said it would be a rare occurrence.                                                                                      
                                                                                                                                
REPRESENTATIVE BRICE added, "And if it's a rare occurrence they                                                                 
should be able to handle it fairly easily, and if they can't, it                                                                
goes to the courts."                                                                                                            
                                                                                                                                
CHAIRMAN ROKEBERG indicated he didn't feel the change from "shall"                                                              
to "may", or the deletions of sections 070 and 080, would be a                                                                  
seriously damaging blow to the legislation, noting he felt it was                                                               
probably a carry-over from last session and things had changed                                                                  
somewhat since that time.                                                                                                       
                                                                                                                                
Number 1923                                                                                                                     
                                                                                                                                
REPRESENTATIVE HALCRO stated he would support deleting sections 070                                                             
and 080 simply because he didn't think they wanted the DCED to                                                                  
become the "Better Business Bureau."  However, he indicated he                                                                  
thought the more serious concern was that, with the inclusion of                                                                
language stating the DCED shall supervise, when one of these cases                                                              
did occur and went to court because a resolution could not be                                                                   
reached, the state would be named as liable.  Representative Halcro                                                             
indicated it would only take one case.  He added he thought if the                                                              
department was comfortable deleting those two sections, the                                                                     
committee should do so.  He indicated he felt that if it was a                                                                  
private cause of action, the parties should be allowed to "battle                                                               
it out" without the state's involvement, adding he felt the                                                                     
department should not be involved at all if it was not given any                                                                
authority.                                                                                                                      
                                                                                                                                
Number 1993                                                                                                                     
                                                                                                                                
REPRESENTATIVE MURKOWSKI said she would echo Representative                                                                     
Halcro's comments.  She noted the "teeth" in the legislation was a                                                              
civil penalty.  She also referred to the bill's language that said                                                              
the department could not audit the records of the settlement agent                                                              
["Sec. 34.80.070.  Department supervision ... However, the                                                                      
department may not audit a settlement agent's records and accounts                                                              
unless a person who is party to an escrow transaction of the                                                                    
settlement agent has complained in writing to the department about                                                              
the agent's noncompliance with this chapter and the audit is                                                                    
limited to the records and accounts of the escrow transaction to                                                                
which the person is a party."].  Representative Murkowski indicated                                                             
she didn't see any reason to include the regulations if they were                                                               
not going to be adopted.                                                                                                        
                                                                                                                                
Number 2060                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG confirmed there were no further questions on this                                                             
and indicated he would entertain a motion to adopt the suggested                                                                
amendment.                                                                                                                      
                                                                                                                                
Number 2075                                                                                                                     
                                                                                                                                
REPRESENTATIVE HALCRO moved that the committee strike Sections                                                                  
34.80.070 and 34.80.080 and the associated references to the DCED                                                               
from the proposed CS.                                                                                                           
                                                                                                                                
Number 2108                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG asked if there were any objections to Conceptual                                                              
Amendment 3.  There being none, the amendment was adopted.  The                                                                 
chairman asked the committee if there was any further discussion on                                                             
HB 13.  There being none, the chair stated he would entertain a                                                                 
motion.                                                                                                                         
                                                                                                                                
Number 2150                                                                                                                     
                                                                                                                                
REPRESENTATIVE BRICE indicated he was concerned that the changes to                                                             
the title were made so it was reflective of the bill.                                                                           
                                                                                                                                
CHAIRMAN ROKEBERG stated that was their intent.                                                                                 
                                                                                                                                
Number 2199                                                                                                                     
                                                                                                                                
REPRESENTATIVE HALCRO made a motion to move CSHB 13, version                                                                    
1-LS0126\D, Bannister, 1/22/99, out of committee, as amended, with                                                              
the attached zero fiscal note and individual recommendations.                                                                   
There being no objections, CSHB 13(L&C) moved out of the House                                                                  
Labor and Commerce Standing Committee.                                                                                          
                                                                                                                                
Number 2248                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG called a brief at-ease at 4:47 p.m. as the                                                                    
committee members signed the bill file. [The length of the at-ease                                                              
was not noted.]                                                                                                                 
                                                                                                                                
ADJOURNMENT                                                                                                                     
                                                                                                                                
Number 2259                                                                                                                     
                                                                                                                                
CHAIRMAN ROKEBERG adjourned the House Labor and Commerce Standing                                                               
Committee at 4:52 p.m.                                                                                                          

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