Release of report to Homeowner when client no longer exists

[George Hatch]

I always explain their options to them when I'm accepting a check from them. That doesn't seem to matter, though. People tend to remember what they want to remember.

 

[Metamorphic]

I discussed this with an attorney today. A relative that's done business law for years at a very high level.

He said it would be easy to argue the "dont give it to them" position, but that you'd loose as soon as they got an attorney and sued you.

He said that as the nexus of the entire transaction, with a right to the information affirmed by law, the buyer has a valid claim on the information. The confidentially clause in USPAP afforded to the "client" means nothing absent a client with confidentiality to protect.

 

[Michigan CG]

Meta,

Your heart is in the right place, unfortunately your intention is in the wrong place because of USPAP. Board action against your license is not worth the trouble.

 

[Metamorphic]

Meta,

Your heart is in the right place, unfortunately your intention is in the wrong place because of USPAP. Board action against your license is not worth the trouble.

You're kidding right? The Board's going to take you down cause you provided a 2 year old report to the guy that paid for it because his lender wasnt around to ask permission from (heck, for all you know he asked for it and they didnt respond then went out of business), meanwhile you've got hundreds if not thousands of appraisers in this state with fraudulent appraisals coming out of their rear's like flying monkeys and the Board does nothing. Besides, who's going to lodge a complaint with the Board?

There's more than enough opportunity in this business to be the bad guy, there's no reason to make them up where they need not exist.

Sure, maybe this guy is looking for someone to sue. But being a secretive (cause that's how the other guy will see it) about your work is only going to highlight your target pip on his attorney's targeting radar. My attorney relative said there's no way your not going to end up giving it to them eventually. If you're really worried about getting sued, trade them the report for a signed waver.

 

[Michigan CG]

Well sir, do what you want.

You have been given plenty of opinions here. I personally choose to stay on the side of the regulations of my profession.

 

[Fred]

I discussed this with an attorney today. A relative that's done business law for years at a very high level.

He said it would be easy to argue the "dont give it to them" position, but that you'd loose as soon as they got an attorney and sued you.

He said that as the nexus of the entire transaction, with a right to the information affirmed by law, the buyer has a valid claim on the information. The confidentially clause in USPAP afforded to the "client" means nothing absent a client with confidentiality to protect.

I agree with part of the legal advice. You might lose in court, but not "as soon as they get a lawyer." But by losing in court, you would have an ethical basis to give them a report copy.

As to the confidentiality clause losing its relevance when the client ceases to go exist, that's another issue that would have to be determined by a court (sounds like US v Foster) - which again could provide an ethical basis for providing a report copy.

 

[Carnivore]

Like I said earlier, the court is the answer.

Have the borrower file in small claims. You both show up and the judge decides. Total cost to you $37(in my county) and the time.

Either way the judge rules is always going to be good for you. This is much better way then having the borrower bring h_ll down upon you from the state board, his city council member, his congressman and letters to the BBB.
Plus all the bad-will he will spread around the world.

Again the appraisers is the one who is put between a rock and hard place.
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USPAP at a minimum should address something about defunct/DOA clients. For that matter they should expnad it greatly. If the ASB is going to make regulation/law, they must also be responsible and act quickly when there actions cause issues and problems for appraisers.

TO help make my last point:

Here is what a similar group tells there members about confidentiality:

http://www.aicpa.org/about/code/sec300.htm


Here we are:

http://commerce.appraisalfoundation...folder/uspap_foreword/er_confidentiality_.htm


Can anybody see a difference?

If not try this:

http://www.abanet.org/media/issues/acprivilegeqa.html

 

[Lee Lansford]

The confidentially clause in USPAP afforded to the "client" means nothing absent a client with confidentiality to protect.

Try telling that to those who are responsible for regulating your appraiser's license.

 

[George Hatch]

I don't know if anybody has brought it up yet, but the ASB specifically addressed this question in a Q&A from November 2007:

When does Appraiser-Client Confidentiality End?
Question:
I performed an appraisal assignment for a lender client who has subsequently gone out of business. Now the borrower is requesting a copy of the appraisal from me since the company is defunct and there is no way to contact them. Does my obligation for appraiser-client confidentiality end since the client no longer exists?​

Response:
No. USPAP has no provision for terminating appraiser-client confidentiality. An appraiser is required to comply with the requirements of the Confidentiality section of the ETHICS RULE, regardless of the status of the client.​

Now it's true that an ASB Q&A itself doesn't rise to the level of being an appraisal standard. However, the answer provided is based on the principles and the content of USPAP and it does represent the ASBs current line of thinking on the issue.

In general, an appraiser would need a really compelling argument to explain to a state appraisal board why they acted outside of the ASBs advice on a specific issue like this. The burden would be on the appraiser to connect the dots to show how consumer law applied in this relationship and why it should trump the applicable appraisal regulations that have incorporated USPAP as representing the minimum standard of conduct for a licensee.

BTW, if Meta wants, I can provide the state regs that require adherence to USPAP. He should show it to his attorney friend - it would probably cause them to change their opinion about the appraiser's chances in court. I would think an attorney would be loathe to walk into a courtroom knowing some appraiser is going to run over them by quoting the law.

 

[Elliott]

I'd throw it to the state board agency. Tell the 'client' to contact
the state board and ask them if they can straighten out the situation.
Otherwise, I say, "I'm really sorry, the laws and regulations are
very clear that the client has to release the report to you."

I actually had one of these situations with an old report. The state
reviewer thought I was not being as friendly as I should be because
I was following the law and regulations and told the HO they needed
to get the report from the lender. Go figure.