An executive of a California title insurers' group said yesterday that the state insurance commissioner has acted illegally by proposing a regulation giving him the power to set title insurance rates.

The proposed regulation, which Commissioner John Garamendi put out as a notice without fanfare on the day before the July 4 holiday, is both “flawed” and illegal according to the California Land Title Association.

Mr. Garamendi's office did not immediately respond to a request for comment.

Lawrence Green, executive vice president and counsel for CLTA said that on Aug. 30, when a hearing on the regulations is scheduled, the group, “will definitely object to them” and “at this point will also consider litigation.”

Mr. Garamendi, he said, “doesn't have the authority to fix rates. It's unlawful price fixing by the commissioner.”

The CLTA also criticized the commissioner's use of a report from Economist Birny Birnbaum, director of the Center for Economic Justice in Austin, Tex., as justification for the need to create the regulations.

Mr. Garamendi's departmental Web site, describes the December 2005 Birnbaum report as finding that a “lack of competition in a dysfunctional [title insurance] market causes consumers to pay far too much for title insurance.” It states the Commissioner is using the report as the foundation of his effort to lower rates for consumers.”

Title insurers throughout the nation have been scrutinized by various state regulators over rates they have called inflated, and firms have been forced to pay hefty settlements for allegedly paying what some termed “kickbacks” to developers and mortgage firms that sent customers their way.

CLTA called Mr. Birnbaum's findings “a discredited report prepared by an out-of-state consultant hired by Garamendi under a no-bid contract.”

The CLTA's noted that its own expert, who testified at a Department of Insurance hearing in January, commented that the report's conclusion “has no basis in fact and flows from an inappropriate and error-ridden methodology.”

The title group said that for the past few months, the organization and its member companies had been actively engaged in “productive meetings with the Department of Insurance to design a comprehensive program to help consumers price shop for title insurance.”

“Commissioner Garamendi has publicly stated that the key issue is a lack of consumer knowledge about shopping for title insurance. CLTA had already committed to support a consumer education campaign, to support Department-sponsored disclosure legislation and to help develop a CLTA-sponsored Web site that would provide complete transparency in title insurance pricing,” the organization said.

CLTA said it had been holding cooperative meetings with department representatives that seemed to be working and “It is, therefore, confounding that Commissioner Garamendi would choose to stop a cooperative process that would be economically advantageous to the very consumers the commissioner was elected to protect.”

The posting of a regulation “came out of the blue,” said Mr. Green.

Mr. Garamendi said in a written statement that the proposed regulations address a variety of “market failures by mandating maximum rates that can be charged while allowing title insurance companies [and other companies involved in providing title insurance] to charge lower rates if they wish.”

The regulations, he said in his statement of reasons, “contemplate a detailed inspection of the costs associated with the business of title insurance, and account for changes in the housing economy–which is the ultimate determinant of demand for title and escrow services–as well as changes in the cost of providing services associated with title insurance and escrow transactions.”

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