When Lenders rely on a third party closing agent, such as a title agent or escrow agent, to assist with loan closing and disbursement on behalf of the Lender, it is important for Lenders to provide clear written instructions to the closing agent with respect to the Lender’s funding, title and closing requirements. An instruction letter not only aids in a smoother closing, and makes the closing agent aware of the Lender’s expectations for closing, but it may also be necessary in order for the Lender to receive any protections afforded by a closing protection letter.
A closing protection letter is essentially an agreement issued by a title underwriter which indemnifies the Lender for certain losses caused by the actions or inactions of the underwriter’s closing agent, provided that the loss is caused by (i) the closing agent’s failure to comply with the Lender’s written closing instructions for disbursement and documentation or (ii) fraud, theft, dishonesty or misappropriation by the closing agent in handling closing funds and documents. Absent a fraudulent act by the closing agent, such protections may only be afforded to a Lender who has provided written closing instructions.
Below is a non-exhaustive list of information that a Lender may wish to include in its instruction letter to the closing agent:
In addition to making sure that Lenders are not prohibited from the safeguards of a closing protection letter and ensuring that the closing agent understands the Lender’s expectations for closing, an instruction letter can be helpful for a Lender’s post-closing department as well. It can provide a road map of the documents, recordings and disbursement information that the Lender’s post-closing department will likely be looking for after closing.
For questions regarding commercial closing transactions, contact the attorneys at Starfield & Smith at 215-542-7070 or email us at info@starfieldsmith.com.
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