An affiliated business arrangement between a person and a title entity violates Section 8 of RESPA for purposes of state law if:
Terms Used In Utah Code 31A-23a-1003
Affiliated business: means the gross transaction revenue of a title entity's title insurance business in the state that is the result of an affiliated business arrangement. See Utah Code 31A-23a-1001
a risk distributing arrangement providing for compensation or replacement for damages or loss through the provision of a service or a benefit in kind;
(ii)
a contract of guaranty or suretyship entered into by the guarantor or surety as a business and not as merely incidental to a business transaction; and
(iii)
a plan in which the risk does not rest upon the person who makes an arrangement, but with a class of persons who have agreed to share the risk. See Utah Code 31A-1-301
Person: includes :
(a)
an individual;
(b)
a partnership;
(c)
a corporation;
(d)
an incorporated or unincorporated association;
(e)
a joint stock company;
(f)
a trust;
(g)
a limited liability company;
(h)
a reciprocal;
(i)
a syndicate; or
(j)
another similar entity or combination of entities acting in concert. See Utah Code 31A-1-301
Producer: means the same as the term "person who is in a position to refer settlement service business" is defined in 12 C. See Utah Code 31A-23a-1001
State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
Sufficient capital and net worth: means :
(a)
for a new or newly affiliated title entity:
(i)
$100,000 for the first five years after becoming a new or newly affiliated title entity; or
(ii)
after the first five years after becoming a new or newly affiliated title entity, the greater of:
(A)
$50,000; or
(B)
on February 1 of each year, an amount equal to 5% of the title entity's average annual gross revenue over the preceding two calendar years, up to $150,000; or
(b)
for a title entity licensed before May 14, 2019, who is not a new or newly affiliated title entity:
(i)
for the time period beginning on February 1, 2020, and ending on January 31, 2029, the lesser of:
(A)
an amount equal to the applicable percentage of the title entity's average annual gross revenue over the two calendar years immediately preceding the February 1 on which the applicable percentage first applies; or
(B)
$150,000; and
(ii)
beginning on February 1, 2029, the greater of:
(A)
$50,000; or
(B)
an amount equal to 5% of the title entity's average annual gross revenue over the preceding two calendar years, up to $150,000. See Utah Code 31A-23a-1001
Title entity: means :
(a)
a title licensee as defined in Section 31A-2-402; or
Title insurance: means the insuring, guaranteeing, or indemnifying of an owner of real or personal property or the holder of liens or encumbrances on that property, or others interested in the property against loss or damage suffered by reason of liens or encumbrances upon, defects in, or the unmarketability of the title to the property, or invalidity or unenforceability of any liens or encumbrances on the property. See Utah Code 31A-1-301
(a)
the title entity does not have sufficient capital and net worth in a reserve account in the title entity’s name; or
(b)
more than 70% of the title entity’s annual title insurance business is affiliated business on or after the later of:
(i)
two years after the title entity begins an affiliated business arrangement; or
(ii)
June 1, 2021.
(2)
In addition to Subsection (1), the division may find that an affiliated business arrangement between a person and a title entity violates Section 8 of RESPA after evaluating and weighing the following factors in light of the specific facts before the division:
(a)
whether the title entity:
(i)
is staffed with the title entity’s own employees to conduct title insurance business;
(ii)
manages the title entity’s own business affairs;
(iii)
has a physical office for business that is separate from any producer‘s or associate‘s office and pays market rent;
(iv)
provides the essential functions of title insurance business for a fee, including incurring the risks and receiving the rewards of any comparable title entity; and
(v)
performs the essential functions of title insurance business itself;
(b)
if the title entity contracts with another person to perform a portion of the title entity’s title insurance business, whether the contract:
(i)
is with an independent third party; and
(ii)
provides payment for the services that bears a reasonable relationship to the value of the services or goods received; and
(c)
whether the person from whom the title entity receives referrals under the affiliated business arrangement also sends title insurance business to other title entities.
