Marion....
For fun and excitement today I've been reading TILA. I don't find any mention of borrower paying the appraiser, or that being prohibited. And I also don't find mention of 'third party' payment (i.e., the borrower) being considered an agent of the lender.
So.....if you an cite the actual passage that backs up your contention, I'd like to know it...please post.
That said, I agree with Terrel in that accepting payment directly from the borrower for a mortgage loan appraisal (being sold to a GSE) is risky for the appraiser. Perhaps less so when it is a HELOC retained by the lender, but still is in a big gray area.
Maybe I can help you with some of your reading issues. I've copied and pasted this, yet again and wish someone would make it a sticky or you guys highlight it in your copy of the law.
42(f)(1)
1. Agents of the creditor. Whether a person is
an agent of the creditor is determined by applicable
law; however, a ‘‘fee appraiser’’ as
defined in paragraph (f)(4)(i) is not an agent
of the creditor for purposes of paragraph (f),
and therefore is not required to pay other fee
appraisers customary and reasonable compensation
under paragraph (f).
42(f)(1)
1. Agents of the creditor. Whether a person is
an agent of the creditor is determined by applicable
law; however, a ‘‘fee appraiser’’ as
defined in paragraph (f)(4)(i) is not an agent
of the creditor for purposes of paragraph (f),
and therefore is not required to pay other fee
appraisers customary and reasonable compensation
under paragraph (f).
(f)(4)(i)
(i) Fee appraiser. The term ‘‘fee appraiser’’
means:
(A) A natural person who is a state-
licensed or state-certified appraiser
and receives a fee for performing an appraisal,
but who is not an employee of
the person engaging the appraiser; or
(B) An organization that, in the ordinary
course of business, employs state- (read issues W2s here not 1099s)
licensed or state-certified appraisers to
perform appraisals, receives a fee for
performing appraisals, and is not subject
to the requirements of section 1124
of the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989
(12 U.S.C. 3353).
§ 1026.28 Effect on state laws.
(a) Inconsistent disclosure requirements.
(1) Except as provided in paragraph (d)
of this section, state law requirements
that are inconsistent with the requirements
contained in chapter 1 (General
Provisions), chapter 2 (Credit Transactions),
or chapter 3 (Credit Advertising)
of the Act and the implementing
provisions of this part are preempted
to the extent of the inconsistency.
A state law is inconsistent if it
requires a creditor to make disclosures
or take actions that contradict the requirements
of the Federal law. A state
law is contradictory if it requires the
use of the same term to represent a different
amount or a different meaning
than the Federal law, or if it requires
the use of a term different from that
required in the Federal law to describe
the same item. A creditor, state, or
other interested party may request the
Bureau to determine whether a state
law requirement is inconsistent. After
the Bureau determines that a state law
is inconsistent, a creditor may not
make disclosures using the inconsistent
term or form.
If there is a written agreement between the AMC and the Lender that the AMC is acting as an agent of the Lender, then, they are the agent of the Lender, otherwise, Nope, not an agent of the lender.
(1) (i) Requires the use of a third party
as a condition of or an incident to theCharges by third parties. The finance
charge includes fees and
amounts charged by someone other
than the creditor, unless otherwise excluded
under this section, if the creditor:
extension of credit, even if the consumer
can choose the third party; or
(ii) Retains a portion of the third-
party charge, to the extent of the portion
retained.
(2) Special rule; closing agent charges.
Fees charged by a third party that conducts
the loan closing (such as a settlement
agent, attorney, or escrow or
title company) are finance charges
only if the creditor:
(i) Requires the particular services
for which the consumer is charged;
(ii) Requires the imposition of the
charge; or
(iii) Retains a portion of the third-
party charge, to the extent of the portion
retained.
(3) (b) Examples of finance charges. The finance
charge includes the following
types of charges, except for charges
specifically excluded by paragraphs (c)
through (e) of this section:
(3) Points, loan fees, assumption fees,
finder’s fees, and similar charges.
(4)
Appraisal, investigation, and credit
report fees.
(c) Charges excluded from the finance
charge. The following charges are not
finance charges:
(7) Real-estate related fees. The following
fees in a transaction secured by
real property or in a residential mortgage
transaction, if the fees are bona
fide and reasonable in amount:
(i) Fees for title examination, abstract
of title, title insurance, property
survey, and similar purposes.
(ii) Fees for preparing loan-related
documents, such as deeds, mortgages,
and reconveyance or settlement documents.
(iii) Notary and credit-report fees.
(iv) Property appraisal fees or fees
for inspections to assess the value or
condition of the property if the service
is performed prior to closing, including
fees related to pest-infestation or
flood-hazard determinations.
But the CFPB was redoing this section of the TILA, I think for this quarter, and as I remember, changed that 3rd party fees to optional for the borrower to pay.
