Gated Community

[Smokey Bear]

legally barred from entering close enough to take a photo of subject, the appraiser discloses that in the report. The disclosure shows the rev appraiser used due diligence in trying to comply with request for exhibits.

First, the reviewer wasn't 'legally barred' from viewing the property, if they had the access code they would have been able to view the property (provided it wasn't guard gated). Or, if they got permission from the owner (it's an REO, the owner should provide them with access). It's an unacceptable assignment condition, and should be turned down. Do you really think that a 'guideline' or opinion trumps a signed certification?

And J, I asked you to read the entire form so you could discover this: Cert 15: Any intentional or negligent misrepresentation(s) contained in this appraisal field review report may result in civil liability and/or criminal penalties including, but not limited to, fine or imprisonment or both under the provisions of Title 18, United States Code, Section 1001, et seq., or similar state laws. If you certify something falsely, despite statements elsewhere trying to remove a certification, you've still signed it falsely.

If you can't view the property and it's required on the form (the certification) then demand that the client get you access. If they can't or won't, it's an unacceptable assignment, and you turn it down. OR use a general form that doesn't have that certification. "It's okay because somebody said so and I wanted the job" doesn't cut it in front of a judge.

 

[Dale Smalley]

As Trump would say "Your Fired!"
It means they did not properly research the community prior to showing up at the gate.
There are many ways to get in. Only a real appraiser gets in and they never say "I'm here to do a fraud appraisal inspection" Get an experianced reviewer.

How much did you pay this reviewer?

 

[J Grant]

Smokey: a signed certification that is amended and disclosed is the signed certification. It is not a USPAP reg that a cert cannot be amended by an appraiser with full disclosure if the appraiser still feels they can develop a credible report.

Your statements about how a judge would rule are silly. You have no more idea how a judge would rule than anyone else reading this post. Many appraisal cases are decided by state boards. If this is mortgage insurance fraud, both sides will have USPAP experts and others who will testify and a judge or mediator will decide. I have no idea how these claims are settled. It seems like new territory and will be interesting to see how these cases are settled.

As for legal entry: Not all communities have gate codes that can be accessed through MLS listings. Here in FL the gate codes are changed monthly in many communities. A security guard at gate will not let an appraiser in without owner's permission, and many clients do not want the owner contacted that a review is being done (or the house is vacant)

The OP is not hiring a reviewer, they are hired by a lender to defend appraisals that were found by review appraisers to be faulty. We can not see the original appraisals, or the reviews to determine which has more crediblity.

 

[J Grant]

: Any intentional or negligent misrepresentation(s) contained in this appraisal field review report may result in civil liability and/or criminal penalties including, but not limited to, fine or imprisonment or both under the provisions of Title 18, United States Code, Section 1001, et seq., or similar state laws.

If an appraiser discloses on the report that they were unable to gain entry and why in order to take a photo, and states that they were still able to develop a credible report, there is no intentional or negligent misrepresentation made.

If you certify something falsely, despite statements elsewhere trying to remove a certification, you've still signed it falsely.

This statement is your personal interpretation, not a court's. There are thousands of precedents in appraisals where pre printed form certifications are amended by the appraiser and agreed to by the client.

 

[Dale Smalley]

They should have agreed on the changes to the SOW or declined the job. I have done reviews where the house has been torn down, burned and a has-mat team removing Chinese drywall.

 

[Smokey Bear]

You have no more idea how a judge would rule than anyone else reading this post.

Damn. 3 years and $100k in loans to finish law school and I don't know $$hit. What a waste. LOL

 

[J Grant]

Even if you finished law school ( congrats, that is a big acheivement), you still don't know how a judge would rule. Appraisal methodology is not necessarily subject to the same decisions regarding "law" about signatures, deviating from a certification on a document etc.

I am not a lawyer BUT, have done over the years RE contracts, legal contracts, a will, etc and it is common practice for the preprinted words and certifications on a document to be crossed out, inititialed by the parties that they have been changed, and then signed by the parties.

There is ample precedence and acceptance of parties changing the wording in documents and signing off on it and the change is upheld over the original pre printed document verbiage.

In appraisal itself there are thousands if not hundreds of thousands of appraisals used for lending decisions where the appraiser had to deviate from the preprinted form or Fannie requriements, disclosed that they did so, the client agreed, it is clear to users of appraisals, and the appraiser made the decision they could still develop a credible report.

It will be interesting to see what happens in these cases , they are just getting started and seems the PMI industry is going to be a power player in these suits.

 

[23Degrees]

When it comes to the forms, be careful when thinking that the appraiser is the one who "defines" the SOW. Perhaps it is more appropriate to indicate that the appraiser is responsible for the SOW. That means they are responsible that the agreed upon scope of work results in a credible report AND that the agreed upon scope of work is followed. If assignment conditions issued by the client are either not possible or result in a lack of credibility then it is the appraiser who must either negotiate a change in those conditions or withdraw from the assignment.

As for the SOW on the forms, if any of these are not possible then the appraiser should either negotiate a change of format for the report or withdraw. That being said I think that post #47 by J Grant might be a reasonable path to follow in the specific situation being discussed.

The statements indicating that the SOW on the forms can be modified at will with no consequences in the event of a dispute in court or a board investigation should be viewed with skepticism by anyone perusing this thread. If one has an agreement with the client to do so and the file is not heading to one of the agencies then fine, go ahead and modify. Best to modify to the extent that Fannies name is no longer on the form, or any reference to a particular form number. Should the file end up being used by one of the agencies, despite what your client indicated, and is labeled as a 1004, 2000 etc then expect the possibility of huge repercussions regarding a modified SOW, something that is specifically prohibited as has been pointed out.

 

[Smokey Bear]

Yada yada. I aced contracts, and was taught by the best. BUT, the form is not a contract. AND you could use another form that doesn't have that certification. AND, I have NEVER seen a review where someone actually crossed out that certification. AND a certification is stronger than normal preprinted 'clauses' in a contract. Are you telling me you've actually crossed out that certification? And your lender accepted it? Anyone else here that's crossed out a certifcation and had it accepted by the lender?

BTW,

Even if

there's no IF about it. AND it was a top 20 school, and my contracts professor was Corbin's graduate assistant and wrote Corbin on Contracts.

 

[Smokey Bear]

Thanks 23. Like I said, you don't have to use that form. Or you can talk with the client and turn it into a desk review. Or you can decline the assignment. Or work harder to get access. Too many options available to say it's "illegal to gain access, so you can contradict the certification."