Any Advice On This Legal Issue?

[Larry Lyke]

Gentle people:

As much as I'd like to...

I can't continue the argument because you keep accreting things to the issue like its food and you are just seasoning it to taste.

Under those circumstance, it's not possible to disabuse you of your notions.

 

[jtrotta]

Sounds like everyone has had some experience and we're trying to refine where it is we go in this kind of situation; lets peek at what we have -

We get an affidavit asking for a signature; Q-how did they get the appraisal thats attached to the affidavit :?: - my guess would be the other attorney for your Client, because he was asked to supply it.

I believe Larry is on the right path - this is the easy way and no your not in violation, as your "confidential" information has already been "Breeched" by probably none other than your Client and I'll bet there's a copy already at the courthouse.

We do and have done quite a few of these for various attorney's for various reasons. Don't know if yours states anything different, the ones I've seen are pretty much what Larry describes. Your "Expert Testimony" would be under oath and in court; and at or prior to you "saying" anything to "Claim" your Experetise - you amke your agreement regarding your Fee.

There has also been ample chater about collecting your Fee up front; I've never been stiffed on a court case. In most cases I've worked, i do ask the court, if my Fee does not get paid, may I come back to the court for collecting - the Judge will usually make it very clear that you will not have to return to his/her court for your money, if it's necessary you can make a (1) call and I have been guaranteed payment in full by Judges.

It's all in your approach and how you handle the attorneys you work with.

Good Luck

8)

 

[Steve Owen]

I would listen to my attorney's advice, but I think Walt and Larry have it right.

Concerning statement #4, its primary purpose is to be sure you get compensated for any testimony you are required to give. You can say ahead of time that you won't testify unless prior arrangements have been made, but it really doesn't hold water if the chips are down. On the other hand, you cannot be compelled to give expert testimony without being compensated.

One issue that came up in the thread was concerning intended users and intended use. The appraiser is required to identify all intended users, either by name or type. That means that if the appraisal is for financing on the secondary market, you must identify that entity as an additional intended user, in addition to your client the mortgage company. This comes from my USPAP instructor and was repeated by the MREAC in their presentation to appraisers this spring.

I think I like the idea of speciffically excluding the borrower (I may give this some more thought) but I definitely would not include them as an intended user. (Sure the appraisal is going to help them get a loan, but that isn't the reason you are doing it. The purpose of the appraisal is to protect the lender and any secondary lenders by ensuring that the value is there to support the loan.)

 

[Richard Carlsen]

Signing the affidavit is just saying to the litigants that you did, in fact, do this appraisal. Nothing else. There is no breach of confidentially there.

I would look over the copy of the appraisal they have and make sure that it is, in fact, a true copy with all of the pages, etc. If it is not, tell them it appears incomplete and that you cannot so attest.

Remember that if they want a copy of the report that you did, they can get it from your files with a court order.

I would sign the affidavit if the copy they provided is a true copy. None of the affidavit signing has anything to do with a court appearance.

 

[Damon Pedersen]

Just an update....

I wrote a letter explaining that it is my policy not to be involved in such matters unless previous arrangements have been made. My thinking is this, if they want to establish the value of the property, hire their own appraiser and then call me into court to explain my report if needed. By signing the affidavit, I feel that I would have been breeching confidentiality by working for another client (the 2nd mortgage company).

Even those the affidavit asks me only to re-affirm factual information such as the date and value of the appraisal, I cannot give that information out without the consent of my original clients (Even though these people already have a copy of my report.). I am bound by confidentiality in my mind. If I am ordered by the court to sign the affidavit and become a part of this, then I will, but until that time comes, my lips are sealed without the permission of my original clients.

If a lawyer for one of my clients would have been asking me to sign this affidavit, I think I would have after getting a written release from my client to do so. However, this is from opposing counsel.

This may get interesting....

Thanks for all of your opinions.

Damon

 

[Anonymous]

Just to let everyone know, I did pose this question to the ASB. As soon as they respond, I will let you know.

 

[jtrotta]

Damon;

you say; "if they want to establish the value of the property, hire their own appraiser" - I believe you have already established a value, as of a specfic date & time in your appraisal. Richard has noted what you need to verify and it's fairly simple; your only bound by confidentiality-if it has not already been breeched- in this case more people have your appraisal than your aware of.

By the by, attorneys are representative's of the "court", wish you well in you decesion, but I think this will cost you more than you think. Let us know how it turns out.

 

[Pat Butler]

From a purely business standpoint (we are in a business, aren't we) I wouldn't sign it, and would actually ignore it. It's common courtesy for an attorney to call and let you know an affidavit or summons is on its way. So much for that protocol.

Id wait until you either get a summons, or a request from somone to appear as an expert witness. Negotiate your fee at that point. If you sign the affidavit, you are effectively doing something for one of these parties who is getting paid for the work that they do.

Also, part of the court process involves introducing documents into evidence. By signing that affidavit you are allowing your appraisal to be introduced into evidence without being able to ask and answer questions. Heck, you haven't even met any of these people. If you get a summons to appear on behalf of this issue then you can make an appearance and very methodically ask and answer questions on behalf of your appraisal once you know what is going on. I wouldn't blindly throw my appraisal into this process without going through the full procedure, or without getting paid.