Judge Rules Appraiser/Lender Owe no duty of care

[Dublin ohio]

The lender threw the word Fraudulent Concealment in their cross claim against the appraiser along with negligence and breach of contract.

From your description of who knew what when. That cross claim by the lender is laughable at the best

 

[Huds_Harm]

From your description of who knew what when. That cross claim by the lender is laughable at the best

Fraudulent Concealment. Concealment or fraud by non-disclosure is another subcategory of fraud where a party has a duty to disclose, but the non-disclosure is misleading as a positive misrepresentation of facts. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997). The concealment is only actionable if the plaintiff proves the defendant was silent when the defendant had a duty to disclose the correct information to the plaintiff. Id.; Bombardier Aerospace Corp. v. SPEP Aircraft Holdings LLC, 572 S.W.3d 213, 219 (Tex. 2019). Therefore in a concealment case, the plaintiff must also show that the defendant was under a duty to disclose, along with specific facts giving rise to the duty. Texas courts recognize a duty to disclose in five situations: (1) a fiduciary relationship; (2) a confidential relationship; (3) a voluntary disclosure of information, giving rise to a duty to disclose the whole truth; (4) a partial disclosure that conveys a false impression; and (5) upon discovery of new information that makes a prior representation false or misleading. Bombardier, 572 S.W.3d at 219.

Do you have a duty to disclose a home's water source in your appraisals?

 

[Mike Ault]

The lender filed a cross claim for Fraudulent concealment. Negligence was all I was trying to prove and I think you and everyone here knows full well it was negligent. Whether she owed me a duty of care is the issue and or escape route.

You are the one who is pursuing the "intentional concealment" tack on this thread. I don't believe it, and after 76 pages of this discourse, I don't think you do either.

 

[TerryRohrer]

Should any consumer read this far, everyone should leave with an understanding that nothing about the residential mortgage ecosystem is for the benefit of the consumer. The consumer is the payor for all parties involved with their hands out (lender, realtor, appraiser, home inspector, title company, government and GSE bureaucrats, etc). Most are billed as promoting affordable housing, often for the disadvantaged, and to add liquidity to the mortgage market...whether the FHA, VA, FNMA, Freddie, or whatever else. FHA and VA insure the LENDER against losses so they will play. The minimal skin lenders keep in the game is a small risk to take in return for the endless stream of cash that lending produces. Of course, Congress enables all this to ensure that through their small tweaks to the system, they can spur short term economic activity and ensure their retention of power through purchase of votes with others money.

 

[Huds_Harm]

Should any consumer read this far, everyone should leave with an understanding that nothing about the residential mortgage ecosystem is for the benefit of the consumer. The consumer is the payor for all parties involved with their hands out (lender, realtor, appraiser, home inspector, title company, government and GSE bureaucrats, etc). Most are billed as promoting affordable housing, often for the disadvantaged, and to add liquidity top the mortgage market...whether the FHA, VA, FNMA, Freddie, or whatever else. FHA and VA insure the LENDER against losses so they will play. The minimal skin lenders keep in the game is a small risk to take in return for the endless stream of cash that lending produces. Of course, Congress enables all this to ensure that through their small tweaks to the system, they can spur short term economic activity and ensure their retention of power through purchase of votes with others money.

"HUD should have
scrutinized more closely the loans made--on its behalf, and
with its guarantee--by a lending institution with such a poor
foreclosure record.
Because FHA backed the loan, however, there was
no risk to the lender, freeing it to become a costless
participant in the mortgage flipping fraud perpetrated against
Smith--with the Federal taxpayer picking up the tab when
bankruptcy and foreclosure overtook her."

You should all care.

 

[George Hatch]

There's that word again.

 

[TerryRohrer]

"HUD should have
scrutinized more closely the loans made--on its behalf, and
with its guarantee--by a lending institution with such a poor
foreclosure record.
Because FHA backed the loan, however, there was
no risk to the lender, freeing it to become a costless
participant in the mortgage flipping fraud perpetrated against
Smith--with the Federal taxpayer picking up the tab when
bankruptcy and foreclosure overtook her."

You should all care.

I have seen numerous cases where FHA has insured a newer home, only to have the foundation fail in short order. The only recourse for the borrower, much like your case, is to walk away. FHA has sold those homes, someone has purchased them for a song, put lipstick on a pig, and resold them with, you can guess, a mortgage insured by FHA. Again, you can guess, the new buyer shortly thereafter finds the foundation has continued to shift and fail, followed by a default, followed by an FHA foreclosure and resale. I mentioned that scenario to an FHA employee a few years back, and suggested that they should have a database of such properties classified as unsuitable for their program. They were astounded at the possibility and indicated they would pass that along to their superiors. I'm sure a check in a few decades will find that nothing has changed. Spending other people's money without accountability is easy and painless.

 

[Carnivore]

In no way or manner am I defending or excusing what the appraiser did or did not do!

So in almost anything there is a process. Sequential Steps. We find this in accident investigations. In your daily lives. When we drive our cars and an accident happens. Why did the accident occur. Police accident investigators have a sequential process of data collection of facts. Building a house has a start point and an end point.

I know that you worked very hard and you made many sacrifices to save money to buy your very first home and live the american dream of home ownership and accumulate future wealth for a carefree retirement in your later years and pass this wealth onto your children,
So I have a series of questions I can ask the Person who purchased this home. I did not go back and read everything again above or the article.

1. Did you use a Realtor in your search for a home to Buy? yes or no If Yes How many homes did you view/visit?

2a. Was this home listed with that Broker or another a Licensed Real Estate Broker? Yes or no

2.b If No then this was a for sale by owner. This is a BIG RED FLAG for me as an appraiser. FSBO's are not held to the high standards by my State.that realtors are. Frankly it has been my experience FSBO's can be quite impossible to deal with and will even stretch the truth and even conceal or lie about any issues with their property. In Short Caveat Emptor Let the Buyer Beware!

Then did you ask or did the realtor who assisted you for earlier viewings of houses or any other realtor who listed homes, offer their assistance on this home or any other home you may be interested in buying that you became aware of? yes or no
Yes! What did they do for you? Did they offer to help you write a contract for purchase agreement. Did they present your offer to purchase contract to the FSBO seller?
The List goes on and on. Each State have different laws.
So do not misunderstand me. I am in no way defending this Appraisers actions and or errors of omission. It is what it is. My Opinion is you could have reported this appraiser to his/her Licensing board.

I think what he have here is another Zippity Do Da Appraiser.

 

[Fernando]

"HUD should have
scrutinized more closely the loans made--on its behalf, and
with its guarantee--by a lending institution with such a poor
foreclosure record.
Because FHA backed the loan, however, there was
no risk to the lender, freeing it to become a costless
participant in the mortgage flipping fraud perpetrated against
Smith--with the Federal taxpayer picking up the tab when
bankruptcy and foreclosure overtook her."

You should all care.

Again, FHA insures the loan but if the appraised value is incorrect and found not to follow their guidelines, lender takes back the loan.
Lender takes the loss. There is risk to lender and not cost free.

 

[Huds_Harm]

Again, FHA insures the loan but if the appraised value is incorrect and found not to follow their guidelines, lender takes back the loan.
Lender takes the loss. There is risk to lender and not cost free.

HUD told the lender "there was no way they could've known." Therefore, they were not forced to take back the loan.