The Appraiser Shortage Myth Part 43

[timd354]

Hmm......bite, don't bite, hmmm....f-it Ill bite.

My official response to this post?

You should really shut the **** up.
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......................... you should shut the **** up

Very intelligent "official" response.

 

[Meandering]

So, I can rebut Presumption #1 for any reason. But the regulation then says if the creditor does not meet one of the non-required* conditions set forth in paragraph (f)(2) [which is the requirements of Presumption #1] then compliance is determined based on all of the facts and circumstances without a presumption of either compliance or violation.
In other words, if rebutted but I've followed all the non-required conditions set forth in paragraph (f)(2), then I am in compliance. It is only when I don't meet those conditions that my case is "determined based on all of the facts and circumstances" and even then, I may be found to be in compliance.
One might ask, "if they are required to show compliance, why are they called 'non-required' in the regulation?"
It seems the answer is clear in the last bolded part of the excerpt above. Note that the second section says determination will be based on the specifics of the case. If the so-called non-required conditions were required, then one couldn't presume compliance or non-compliance; if required and not followed, the lender/AMC would be in non-compliance, period. That isn't what the regulation says. It allows for an individual case to be judged based on its circumstances even if all the 'non-required' conditions weren't followed.
An explanation of this seemingly illogicality may be this: Let's say the lender follows all but one of the non-required conditions in Presumption #1. But, by happenstance, it happens to pay the same rate as the VA schedule. The lender may have tried to claim it was following Presumption #1 but it didn't meet all the non-required conditions. But, by chance, its fees are the same as the VA. I think a complaint that they were not following Presumption #1 would be found to be moot since at the end of the day, wittingly or unwittingly, they were paying what is considered C&R under paragraph (f)(3).

One can rebut Presumption #1 all they want. But if a lender is in compliance with the 1st Presumption's non-required conditions, then compliance is no longer presumed to be in place but is determined to be in place.
Note that the excerpt above does not say, "Regardless if a creditor...does not meet one of the non-required conditions". It says "if a creditor...does not meet one of the non-required conditions."
That is a significant difference that determines if the lender (or its agent, the AMC) process can be evaluated outside of Presumption #1.

Indeed, this is how Louisiana found Coestar in violation of C&R. Coestar did not provide evidence of compliance with all the conditions set forth in paragraph (f)(2). Louisiana was right to charge them on Presumption #1 because they were in non-compliance.
Had Coestar been in compliance with Presumption #1, Louisiana's case would have (a) not been raised or (b) gone nowhere.
Anyway, that's my interpretation. As I said, I'd be interested to hear yours.

If I may, and I'm not a lawyer...........

No one "rebutts" one Presumption at a time. Please re-read the ENTIRE IFR,

The "rebuttal" is that the fee paid is not a C&R fee. The "Presumptions" kick in to determine if the fee paid can be presumed to be a C&R fee, when no direct evidence to the contrary has been presented.

However, when there is direct evidence that the fee paid was not a C&R, no presumption exists, and the investigation then proceeds, to identify what a C&R fee is for the specific assignment, in the "geographic market" based on the education and experience of the appraiser, and considering any unusual/atypical/special assignment conditions associated with each assignment.

Each fee has to pass TWO tests. One for Customary and one for Reasonable. Those tests are spelled out in the IFR.

AND,

Those "tests of C&R" are not the conditions of either Presumption, as the Presumptions do not establish C&R, they are merely backdoors that can be used when no evidence to the contray exists.

Once C&R is determined for similar assignments in the same geo-market, performed by appraisers with similar education and experience, and with similar assignment conditions, it is then judged against the fee that was paid to the appraiser, to determine if the appraiser actually recieved a C&R fee or if, Appraiser Independence was violated.

That's what the IFR says.

C&R is not a list of: "This is the fee for a 1004" in these states/cities/counties without any consideration for timeframe, additional assignment conditions or the education and experience of the appraisers.

The other thing to remember is that eventhough Presumption one allows for "recent rates", the test for C&R does not allow for fees paid by AMCs to be included in the determination of what C&R is for each individual assignment.

Very expensive to investigate and litigate.

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[J Grant]

http://appraisalvaluationservices.com/state-fee-disclosures/

Can a lender charge the borrower $600 for the appraisal, the lender can pay the AMC $450, and AMC pays the appraiser $300 ? Which would let the lender retain $150.

It would appear to be allowed, but I don't know if the above link applies, or what law, if any applies, thus the question.

The above link lists states disclosure of AMC fees to client ( AMC's client of lender, bank, or credit union). It says nothing about the borrower paid fee paid to lender , Only 4 states it appears per list see (Arizona, Utah, Virginia, Vermont), have disclosure of AMC fee and fee paid to appraiser in the appraisal report, the rest reference AMC disclosures of what $ is paid to appraiser and what $ for AMC management to the client. ...

My question then, since the link does not address it, is it allowed for a borrower to pay $600 to a lender as the appraisal fee, lender pays $450 to the AMC (for example) to pay the AMC charge to lender, and pays appraiser X$ ( $300 to appraiser for example )

 

[Meandering]

http://appraisalvaluationservices.com/state-fee-disclosures/

I am curious if anybody answer: Is the lender allowed to charge the borrower $600 for the appraisal, the lender can pay the AMC $450, and AMC pays the appraiser $300 ? Which would let the lender retain $150. It would appear this is allowed, but I don't know, whch is why I ask. The above link lists states disclosure of AMC fees to client ( client is the AMC's client of lender, bank, or credit union). It says nothing about borrower paid fee paid to lender , Only 4 states in the list that it appears (Arizona, Utah, Virginia, Vermont), have disclosure of AMC fee and fee paid to appraiser in the appraisal report. The rest of the state by state is AMC disclosures of fee for management and fee to appraiser to the client. ...

My question then, is is it allowed for a borrower to pay $600 to a lender as the appraisal fee, lender pays $450 to the AMC for the AMC charge to lender, and from that $450, the AMC pays appraiser X$ ( $300 to appraiser for example )

The lender is supposed to disclose any part of the fee they keep, on the TRID. Yes, they can keep part of the fee, Yes they are supposed to disclose that. Again, you'll need to read the RESPA in regards to TRID and required disclosures.

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[Deleted member 130081]

Federal Register, October 28, 2010, Federal Reserve System, 12 CFR Part 226, Truth In Lending; Interim Final Rule

Could someone please post a link if this is not the law we are referencing? I found what looks like the damn thing, but if its called interim? WTF?

It sure looks like the snipets that have been posted in this thread, but I wonder if this is the final rule, or just the interim as it states, or maybe there is a final interim or maybe a final final interim - lol

1:38 in the morning, a couple of beers in, and the title "Truth In Lending; Interim Final Rule" just makes me start to laugh. How much truth can there be when you say something is interim final? Holy hell! Affordable Care Act! Patriot Act! LOL. You cant make this **** up. I'm not sure I need to research any further to conclude we're screwed.

 

[djd09]

Patriot Act!

They love cute titles. Yeah the patriot act. It should be called we are allowed to spy on you act. Unconstitutional.

What about affordable housing. Sure you can buy a house but it will take the rest of your life to "own" it.

 

[J Grant]

I believe the final rule is much the same-allowing two different presumptions for determining C and R fees. Net result is two very different sets of fees: with AMC 's paying significantly lower fees fees than fees paid out from non AMC entities for similar work in a same market area.

The exceptions are the oft mentioned 3 COW states, where a shortage of appraisers has leveraged AMC's to pay a C and R equivalent to non AMC fees paid in those areas.

 

[Meandering]

Federal Register, October 28, 2010, Federal Reserve System, 12 CFR Part 226, Truth In Lending; Interim Final Rule

Could someone please post a link if this is not the law we are referencing? I found what looks like the damn thing, but if its called interim? WTF?

It sure looks like the snipets that have been posted in this thread, but I wonder if this is the final rule, or just the interim as it states, or maybe there is a final interim or maybe a final final interim - lol

1:38 in the morning, a couple of beers in, and the title "Truth In Lending; Interim Final Rule" just makes me start to laugh. How much truth can there be when you say something is interim final? Holy hell! Affordable Care Act! Patriot Act! LOL. You cant make this **** up. I'm not sure I need to research any further to conclude we're screwed.

So I take it you did not vote in the election?????

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[Deleted member 130081]

I believe the final rule is much the same-allowing two different presumptions for determining C and R fees. Net result is two very different sets of fees: with AMC 's paying significantly lower fees fees than fees paid out from non AMC entities for similar work in a same market area.

The exceptions are the oft mentioned 3 COW states, where a shortage of appraisers has leveraged AMC's to pay a C and R equivalent to non AMC fees paid in those areas.

Ok, so is there a "final rule" out there or is the "interim final rule" the final rule? Holy hell.

 

[Deleted member 130081]

So I take it you did not vote in the election?????

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Excellent guess. No, I did not. I subscribe to the George Carlin philosophy when it comes to going out and voting (RIP). Therefore, I rarely vote in the large elections, usually just the local ones.