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  #1  
Old 04-08-2005, 09:19 PM
John "Corky" Harry's Avatar
John "Corky" Harry John "Corky" Harry is offline
 
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Location: Tidewater, Virginia
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Minding my own business last week and the deputy pays me a visit. Reading the subpoena, I do not recognize the plantiff nor the defendant. I search my database by owner and borrower and found a match. I did a plans & specs report back in September 2003. Checking the workfile, a final was never ordered nor performed. Feeling rather suspicious, I called the loan officer that handled the order. He informed me that the borrower got married and is now going through a nasty divorce. I replied, "thank you Capt. Obvious", but why didn't you order a final and why am I being subpoenaed. My loan officer had no idea about the subpoena but the guy never converted over to a permanent loan. Apparently, after 12 months the construction loan rolls into a ARM loan and the guy has been making his payments.

Here is the main clue to quote a letter from the attorney (after the subpoena was served). "Prior to it (the lot) going into both names, Mr. McFly had an option to purchase the property. Upon that option he entered the property, obtained the necessary permits, engineering data, and proceeded to bulkhead and fill the lot, bringing it to build ready condition. This also required coordinating all utilities to, and on the site. The issue is what was this lot worth at the time of the deed going into both names. Just the value of the lot on November 15, 2003."

Here is the confusing part. "On the day of closing, Mr. McFly contributed the lot which was previously owned (equity in option and improvements) by him individually and it then became marital property at that value, not what he had the right to purchase it for."

The effective date of my report is 09/15/03. The owner and borrower is Mr. McFly only.

The way I see it, the intended user is the mortgage company and the purpose was to give an opinion of market value based on the 100% completion of the site improvements per plans and specs. The appraisal report was not completed for a divorce case.

I believed this attorney needs to find an appraiser who is willing to do a retro based on the November date. Your wisdom will be appreciated?

Side note: The attorney who subpoenaed me will not return my calls. The court date is next Thursday. I will walk in there with nothing but my clothes if he does not call and recind the subpoena.
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Old 04-08-2005, 09:34 PM
Terrel L. Shields's Avatar
Terrel L. Shields Terrel L. Shields is offline
 
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call the other side. offer to be their expert witness....they don't have to call you if they don't want to.
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  #3  
Old 04-08-2005, 10:00 PM
Jan Roseberry Jan Roseberry is offline
 
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In Ohio, they have to pay an expert witness (and, who says our hourly wage is not as much as a medical doctor). I would be sending an invoice to this attorney quickly if you are allowed by law. In testimony I would proceed to teach a mini course on USPAP, intended users, et cetera as your testimony. My cost includes 90 minutes only and then per hour fee. It has totally elliminated game playing with me sitting and waiting.
  #4  
Old 04-08-2005, 10:14 PM
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David Wimpelberg David Wimpelberg is offline
 
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I'm confused as to why you are being supoenaed. First and foremost is the issue of privity. You were hired by the bank/lender and you are their client; the loan applicants are not your client.

With regard to the expert witness issue, you cannot supoena expert testimony in this state (NY). If you are supoenaed you would be considered an hostile witness. Personally, I would show up with no material and play dumb. But it is best to consult with your attorney if you have one. Chances are they can squash this real quick.


Edit: Whoops...meant to say hostile witness...not expert!
  #5  
Old 04-08-2005, 10:34 PM
Terrel L. Shields's Avatar
Terrel L. Shields Terrel L. Shields is offline
 
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Quote:
In Ohio, they have to pay an expert witness (and, who says our hourly wage is not as much as a medical doctor).
The judge will have some say so in what you charge. You cannot charge them anything if you are subpoenaed. There is supposed to be a witness expense check when you arrive in most states. If not, you can walk and not show up.

For divorce, if you do not show up, rarely will the judge order you in contempt of court (from what i have ever seen.) I know several who did not show up.

Frankly my answer was a little flippant. Really I would consult my att'y and try to get the subpoena squashed. I would be a pain in the butt.

You can pull this tactic. Don't bring a thing. Tell them you don't recall a thing. The lawyer will almost certainly hand you a copy of the report. Reply "This is a copy of a report, but it could be a forgery because it does not have my watermark on the report. Therefore, I am unable to confirm any detail in the report. I am not an expert witness and I do not recall any detail regarding the report because I have prepared hundreds of reports since this date." If it is the real McCoy, you have to answer.

Quote:
the loan applicants are not your client.
don't matter, you are a witness to a fact.

Quote:
In testimony I would proceed to teach a mini course on USPAP, intended users, et cetera as your testimony.
good way to get the judge to say shut up and answer the question. they are not going to let you answer a question that is not asked.

I was in the exact same situation 2 yr ago and could not weasel out of it. Did not get a penny for my testimony. Sadly, the prick who pulled me into court beat his wife out of every penny. She walked with the shirt on her back. Another good case of Oklahoma justice.
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  #6  
Old 04-09-2005, 06:58 AM
Austin Austin is offline
 
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Had the same situation recently. About the year 2000, I did an appraisal for my client a local bank of a lot and proposed manufactured home as if installed on the site. Never saw the home on the site and never heard anything else about this deal. A couple months ago I received a call from an attorney representing the wife stating he has a copy of my old appraisal and wante to know how much I will charge to appraise it for a divorce case. I told him and he says she can't pay that much. A couple weeks later I showed up for work and his paralegal was standing at my office door asking why I am not in court room B? I ask why I should be in court and she says I was subpoenaed last week. I told her I had no subpoena and she said they are waiting for you in court. I got the appraisal and went to court where I am served with the subpoena and put on the witness stand.
The lawyer held up the appraisal and ask if I recall this appraisal? My reply was: "Yes, I did that appraisal for my client Bank XXX for their intended use of evaluating a construction loan of a proposed property for the purpose of making a construction loan and cannot be use by anyone else for any other use or purpose. I appraisal is the property of my client and if my client is not a party to this case I don't understand why I am required to be here." That was pretty much the end of it. I sent them a bill for a full day, received a check and a nice note thanking me for my professional service.
  #7  
Old 04-09-2005, 11:36 AM
Mike Garrett, RAA's Avatar
Mike Garrett, RAA Mike Garrett, RAA is offline
 
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Usually you can call the lawyer's attention to the certification page and also to your USPAP compliance page that states who is the intended user and what is the intended use. Since the certification says you don't have to testify, you are not required to appear unless you agree to and agree to a fee. When I tell them what my fee is.....it usually goes away.
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  #8  
Old 04-09-2005, 03:21 PM
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Mutyger Mutyger is offline
 
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Does anyone have a good stocked quote to put inside every appraisal saying sonething like if I'm called to court over this appraisal there is a XXX.XX minimum charge for X hrs in court and XXX.XX/hr after that?

Thanks,

Matt
  #9  
Old 04-09-2005, 03:44 PM
John "Corky" Harry's Avatar
John "Corky" Harry John "Corky" Harry is offline
 
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Thank you for the responses. I would love to talk to the attorney however he will not return my calls. I have the intended user and purpose statements in two different sections of the report. In the Contingent and Limiting Conditions, item #4 clearly states that I will not give testimony without specific arrangements beforehand. I have no worries with the report and specifically with the land value. I will post Thursday night about what happens. It's Saturday afternoon and it's time for a ice cold barley and hops pop.
  #10  
Old 04-09-2005, 04:31 PM
Cliff Salisbury Cliff Salisbury is offline
 
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Did I miss something in the post? If I am reading this the appraisal was done on September 15, 2003. The attorney wants to know the value as of November 15, 2003, two months after the appraisal was completed. How are you suppose to give this value without doing another new appraisal as of the date November 15, 2003? I think you need a new appraisal, a new work file and a new fee.
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