Docu-File Title and Escrow of Tulsa & Florida Title Pros of Brandon Did Not Follow Instructions
The contract for purchase and sale of the condominium dictates the closing agent work assignments for Florida Title Pros of Brandon, a subsidiary of Docu-File Title and Escrow of Tulsa. A copy of the standard Florida Realtors contract can be viewed here.
Florida Title Pros and Docu-File’s title examination and closing agent instructions, as are relevant to our complaint, are contained in Section 13 Escrow Agent and Section 18 Standards, Section (ii) Title Examination, Part K (Prorations and Credits).
Section 13 tasks the escrow or closing agent with collecting and disbursing funds. It further states that the closing agent is liable (responsible) for “mis-delivery” of funds if due to gross negligence or willful breach of the contract. Section 13 survives close of escrow, so is still in effect.
Section 18 (ii) K is an escrow instruction to the closing agent, Florida Title Pros of Brandon and Docu-File Title and Escrow of Tulsa. This instruction directs the closing agent to collect security deposits and advance rents (related to the leased property) from the Seller and to disburse those monies to Buyers.
Gross negligence is defined (at Law.com) as:
Carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people’s rights to safety. It is more than simple inadvertence, but it is just shy of being intentionally evil. If one has borrowed or contracted to take care of another’s property, then gross negligence is the failure to actively take the care one would of his/her own property. If gross negligence is found by the trier of fact (judge or jury), it can result in the award of punitive damages on top of general and special damages.
Our assertion is that Florida Title Pros of Brandon and Docu-File Title and Escrow of Tulsa demonstrated gross negligence in this closing transaction. We feel their poor performance meets this threshold because they did not take care of our property in the same manner as if it had been their own property. We assert that these two companies would have made absolutely sure that they collected and retained the security deposits and advance/prepaid rents, if the recipient of those payments had been themselves, Florida Title Pros or Docu-File Title and Escrow, instead of us.
Willful breach of contract is defined (at Law.com) as:
A failing to perform any term of a contract, written or oral, without a legitimate legal excuse, and in a manner which is intentional, conscious and directed toward achieving a purpose. Some willful conduct which has wrongful or unfortunate results is considered “hardheaded,” “stubborn” and even “malicious.” This may include not completing a job, not paying in full or on time, failure to deliver all the goods, substituting inferior or significantly different goods, not providing a bond when required, being late without excuse, or any act which shows the party will not complete the work (“anticipatory breach”). Breach of contract is one of the most common causes of law suits for damages and/or court-ordered “specific performance” of the contract.
Our assertion is that Florida Title Pros of Brandon and Docu-File USA of Tulsa willfully breached their contract to provide title, escrow and closing services. Patti Dulaney, the closing agent, had actual notice (was informed directly) of the leased status of the condo, and the existence of security deposits and prepaid/advance rents. This notice came from:
- The homeowners association information form showing rent and security deposit
- Verbal and email communications with seller, Melissa Criss (realtor), and us (Buyers)
We assert that Florida Title Pros of Brandon furthered this willful breach by claiming (after the fact) to have performed a “courtesy closing”, which apparently is defined as an abbreviated closing, without many of the normal closing agent services and responsibilities. This assertion is apparently their excuse for their non-performance, which they appear to deem as a waiver of their duty to perform.
However, this unilateral waiver was not approved or agreed to by us (Buyers), making it invalid. We, the buyers, at no point agreed to a “courtesy closing”, nor did we know of this “courtesy closing” until after the transaction had closed/funded. Plus, we paid the full regulated price for Florida Title Pros closing and escrow services. As we paid the posted rates for the closing, we expected, and were legally entitled to, a full normal closing.
We assert that the closing agent’s statement that they performed a “courtesy closing” supports our opinion that a “willful breach of contract” occurred. This is because it attains the level of a “conscious and hardheaded” effort to ignore their written instructions, to ignore the actual notice they received about the lease-related monies, to avoid their mandated work, and thereby to deny us our proper disbursements.
In our opinion, Florida Title Pros of Brandon and Docu-File of Tulsa are guilty of gross negligence, as well as willful breach of contract, because they deliberately substituted inferior services without our knowledge and agreement, which resulted in damages to us in the amount of $1050 (the uncollected deposits and rents). We are contemplating filing a lawsuit on this issue, with a demand for actual, general, and punitive damages, in light of these closing companies’ egregious actions.