Any Advice On This Legal Issue?

[Damon Pedersen]

Here is my situation:

Last fall I did an appraisal for a Mortgage Company for say Mr. and Mrs. Smith.

Yesterday, I get an "Appraiser Affidavit" from a law firm who is representing one of Mr. and Mrs Smith's creditors in a lawsuit. Seems that evidently Mr. and Mrs. Smith had some problems with this creditor and now they are filing a suit against them. The suit names Mr and Mrs Smith and their mortgage company as Defendants.

I am asked to sign and notorize the Appraiser Affidavit, which basically states that I appraised the property for X amount on X date. A copy of my full report was attached. How this creditor and attorney got a copy of my report I have no idea. Possibly from Mr and Mrs Smith if they got one when their loan closed.

I think that the mortgage company listed as a defendant along with the Smith's possibly took a first mortgage on the property when this creditor must have thought they had a first mortgage. I can't think of any other reason why to list the mortgage company as a defendant.

In my report I always list the intended users, which in this case was the Mortgage Broker, Secondary Market Financing, and Mr. and Mrs. Smith. All of whom were listed as intended users in my report. Also states the purpose of the report is to obtain mortgage financing.

So, when I am asked to sign this Appraiser Affidavit, I know that by doing that I will admit my appraisal into court for this case. So, I show this to my attorney and explain the intended users, purpose, and #4 of the limiting conditions which says that the appraiser will not appear in court unless previous agreements have been made. My attorney tells me to write a letter back to the law firm that sent me this Affidavit and tell them it is my policy not to be involved in such issues for the reasons stated above.

I also think this would be a conflict of interest to be on the opposing side against my original clients in this case. So, I am getting ready to write my letter declining to sign this affidavit. Any suggestions??? Remember, I am not listed as a defendant in this case, they merely want to admit my appraisal into court. Can they do that? I think they should have a new appraisal completed (by someone else) if they need to know the value of the property.

Any help is greatly appreciated of course.

Thanks,
Damon

 

[Ken in Arkansas]

When you are well known around town and are seen dragging a tape along the wall of a dwelling, it is logical for an observer to conclude that you are making an inspection for an appraisal; makes it a little difficult to claim the contrary. That said, I would think (a) if you don't execute the affidavit, you have just received a ticket to court for testimony, (b) if you execute the affidavit you have just received a ticket to court for testimony, and © if you execute the affidavit, even though it may be well known that you made an appraisal on the property, you might be in line for criticism, if not potential legal liability for divulging confidential information. I think I would be silent and respond only under subpoena.

By the way, go ahead and send the dark suit to the cleaners; sounds like you might need it!

 

[Larry Lyke]

Damon --

#1. The reason you’ve received the affidavit is because somebody wants you to swear to something (without appearing in court). The reason they attached a copy of your appraisal is that they’ve obtained a copy by subpoena, probably, being that the parties mentioned are defending the suit.

#2. I would say the intended user of your appraisal report was the loan brokers. (There’s no point to listing secondary market financing and Mr. and Mrs. Smith as intender users.)

#3. In an affidavit you are only admitting stuff that’s true and correct as stated in that affidavit. It’s not a deposition wherein you can scenario-ize. [Coined word, by me.]

#4. Your attorney may be right, but under the circumstances, he too is not going to pass up a fee, probably. The chances are if you don’t sign the affidavit, you’ll get a subpoena and you can traipze over to that attorney’s office to sign in person.

It’s a game people play. You can participate knowingly or play hard to get and still pay with your time, your money or your both after the hassle begins.

You didn’t say the affidavit accuses you of lying or stealing or being a bad person? Who can stop you from appearing in an adversarial role against your “original clients.” (The borrowers are not your client, by the way. The broker was.)

The reason you’re not listed as a defendant is because you ain’t. The lender and The Smiths are.

Your appraisal will do fine for whatever past purpose The Smiths are entangled with the lender in a lawsuit. When you prepare an appraisal, it’s prima facie evidence. If a new one is needed, it’s not likely they would hire the original appraiser.

 

[larryhaskell]

Damon,

If you can determine whether or not it is the court is requesting the information you should be able to invoke jurisdictional exception then you are not violating your confidential agreement with your client. Easy for me to say but I think I would hold out until the court asks for the info. Good luck.

 

[Anonymous]

The first thing that I would do is contact my client for instructions, in writing. The second thing that I would do is inform the lawyer sending me a document to sign what my fee for testimony will be.

 

[David S. Roberson]

The first thing that I would do is absolutely nothing. No affadavit, no deposition, nothing. If you are served with a subpoena, go to court and testify that you may or may not have performed the report, but you can not be sure because you were not retained to testify in this matter, and therefore you have not reviewed any douments pertaining to the matter. Screw these litigious bas&^%$s.

 

[Larry Lyke]

Walt –

Can’t imagine what contacting the client will do. They’re already been named in the suit and might even be the party compelling the affidavit of you. Playing hard to get, then being subpoenaed to show up and stating that you did prepare a document might get you a stipend, but it ain’t gonna get you a testimony fee. Or win you potential future business.

David –

You could do nothing. That’s an option. Sit back and wait for things to ripen. To acknowledge something is usually the courtesy expected of standard human beings. After all, they know where you are and who you are and are trying to do their business with you at arm’s length.

Surely you do not intend to show up in court and state that you may or may not have performed said appraisal report which has your name and signature on it! Or you’ve got a sicker sense of humor than I.

I haven’t seen anything growing out of the original post suggesting that the appraiser is being asked or compelled to testify. That is a different issue. It’d require attorney contact and preparation at her direction.

Responding to proper legal requests for information, etc. is simply a matter of handling business. Some attorney could ruin your ability to ever be considered as a support person to their legal efforts. It’s really quite a lucrative area of business working with these professionals. It’s highly educational. Every suit brings on new, exciting issues. I’ve found it very pleasurable. Very unstressful.

 

[Damon Pedersen]

Thank you all for your posts.

To clear things up. Just because I don't want to sign the affidavit doesnt mean that I am denying the report that I completed, I just don't want to make it look like I am volentarily admitting my report into court proceedings by signing the affidavit. Keep in mind that the first I ever heard about this was yesterday when I got it in the mail. There were no phone calls, etc. explaining the situation to me.

Obviously, I did the report and I will stand behind everything in it if needed.

I have been thinking about my intended users statement in my report. I think I will change that to be only the person (client) who ordered the report and not necessarily including the homeowner. Is that what you all do as well? My present process of including the client (mortgage company), secondary market financing, and homeowner seems to be a bit broad. Anyway.....

My biggest question is.....DONT the statement of limiting conditions that we sign hold any weight? Expecially statement #4?? While I understand that all reports are completed per USPAP requirements, we all know that assignments performed for court related issues are much different than those performed for mortgage lending purposes. After all, underwriters and lawyers are a completely different audiance.

I will respond by not signing the affidavit. I guess it is just a matter of how I will be explaining why I will not sign the requested documents. Obviously, I am not trying to deny the fact that I completed the report.

Thanks,
Damon

 

[Larry Lyke]

Damon –

Signing the affidavit is an easy way to keep from showing up in court. You either do or don’t agree with what it says. It ain’t bigger than that. Signing an affidavit isn’t starting the snowballl rolling – it’ll roll without your assist.

I stipulate who the intended user is and specifically exclude the borrower and homeowner and others from use of the appraisal even[/i ]if they happen to come into possession of a copy of it. I state they are not the client.

On FHAs, include loan brokers, FHA and its assigns as intended users.

I’ve limited my comments here to appraisals for lenders.

 

[David S. Roberson]

Larry;

Surely you realize that an affadavit will be used the same as testimony in court. So yes, the appraiser is in effect being asked to provide testimony. And yes, I would show up in court and state that I may or may not have performed an appraisal with my signature on it, unless I had reviewed my files and the report being submitted to court to make sure there were no alterations or amendments to it. I do not see where Damon was retained to provide that service. But I am confused about something here; you mention courtesy and standard human beings in your post. I thought we were talking about lawyers.