Virgina REAB and Portal Petition

[Don Clark]

I have honestly and thoroughly tried to wade through all of the posts, statements, arguments, and positions of many of you whom I consider to be strong and committed fellow professional real estate appraisers. I have been involved with the State Board for many years. I am involved now as many of you know. I am going through a very long thought process and with that comes many questions within my heart and mind.
I understand the purpose of Title XXI, FIRREA, and, I believe, the INTENT and MEANING of USPAP......HOWEVER, I do have an open enough mind to listen to honest and objective responses.
HOWEVER, Does USPAP outline specific disciplinary steps mandating the type and degree that the States are to follow? Is USPAP a perfect document? Does TAF dictate with a heavy hand what is to be done?
MY answer I have come up with is somewhat from a personal AND professional perspective.
I have not seen anywhere in USPAP where it tells the States HOW to implement OR ENFORCE that document. It is an ambiguous document at best, and perhaps intentionally so. If it can be agreed that it is somewhat ambiguous, if it can be agreed that interpreting and enforcing it lies within the
States....then it seems to me that it is not only the States' rights to enforce it on each and every level....then it must be up to the States to interpret it....utilizing ALL available resources available to ensure everyones' rights...To cloud our issue there are GSE guidelines....and there are individual States' Regulations and Rules....all guided by, but not DICATATED to by USPAP as some might argue. If each State acts with responsibility and guided by their own rules and regs...I cannot see where the TAF can condemn any well-thought out action by an individual State. I look forward to honest, objective positions that I am SURE many of you have in our many challenges as we go forward.

Mr. Turner,

I know you know this but perhaps some of our readers and lurkers do not, and from some questions and responses on the forum and many threads, I believe it is true..........Thae Appraisal Foundation, The Appraisal Standards Board, and The Appraisal Qualifications Board, and USPAP itself has NO REGULATORY AUTHORITY. If we are to be guided by FIRREA, that federal Law does not give TAF any oversight on state regulatory agencies. That rest solely with the Federal Financial Institutions Examination Council(FFIEC), as represented by the Appraisal Sub-Committee(ASC), and ONLY for Federally Related/Regulated Transactions. The list of such entities that would be considered as ordering and receiving a FRT can easily be seen at www.ASC.gov It is up to the states as you so rightly point out, to regulate themseleves and appraisers within their states. USPAP was created and still is a minimum set of standards. States are free, as they have always been, to require and enforce higher and greater standards. For example, some states require compliance with advisory opinions. As you know, such opinions are not part of USPAP but are called "Other communications". States are free to require, for example, that a subject property be inspected to some degree, although USPAP does not have such a requirement.

And, although I am not a lawyer, I am not sure to what degree the states necessarily have to follow USPAP in all the myriad of changes that are made every 2 years, and all the educational changes and requirements that were made effective January 1, 2008, as long as the licensee is not engaged in a Federally Related Transaction. For example, I have a North Carolina Certification as well as being certified in Virginia. I could choose, in that state, to do only non FRT appraisals. I would simply have to amke the choice of not paying to be on the National Register as maintained by the ASC.

In the original matter that started this lengthy thread, Virginia is certainly free to decide that their appraisers, licensed or certified by the state of Virginia, not use any delivery system that has an intent to alter, modify, or otherwise change a document(appraisal) that is transmitted from the appraiser to the appraisers client.

To cite just one more example of what a state may do. I was recently asked by an appraiser in another state to assist them in a case before their appraisal board. Without boring you or others with a long story, part of my research revelaed that their state regulations do not read like Virginia's where the most current edition of USPAP always applies. That state must accept or reject USPAP every time it is updated. My research revealed that in that state, only the 2004 version of USPAP was noted as being effective in their regulations. And, it was this year when i did the research.

My point is, the states are the only ones with regulatory power. The ASC has the authority to oversee the states but only as it applies to FRT's.

 

[Workbox]

I am still trying to figure out who this other Competitor DW is bring up? What are you talking about DW? Do You think First American has something to do with this?

 

[DWiley]

In the original matter that started this lengthy thread, Virginia is certainly free to decide that their appraisers, licensed or certified by the state of Virginia, not use any delivery system that has an intent to alter, modify, or otherwise change a document(appraisal) that is transmitted from the appraiser to the appraisers client.

Don,

If Virginia (or any other state) adopted that kind of wording, I don't think there would be an issue at all.

DW

 

[Oregon Doug]

In the original matter that started this lengthy thread, Virginia is certainly free to decide that their appraisers, licensed or certified by the state of Virginia, not use any delivery system that has an intent to alter, modify, or otherwise change a document(appraisal) that is transmitted from the appraiser to the appraisers client.

Don,

If the state regulatory agency dictated which delivery system you could, or could not use; why wouldn't that fall under the restraint of trade umbrella? Wouldn't that be the same as telling you which software to use/not use and which clients you could/could not service?

Oregon Doug

 

[Fred]

not use any delivery system that has an intent to alter, modify, or otherwise change a document(appraisal) that is transmitted from the appraiser

Don,

If Virginia (or any other state) adopted that kind of wording, I don't think there would be an issue at all. DW

I'd still argue that any language that does not distinguish between the report (a container) and the report's contents; and does not clarify the relevance of the substance of the contents, not the form of the contents - like the language of Don's post - is a disaster waiting to happen. As someone already pointed out, even 20th century technology that consisted of rubber stamping a paper document "recieved on xx-xx-xx" is "altering, modifying, or otherwise changing" a document. However, stamping the docment doesn't alter the substance of the documents original contents.

We are through the looking glass. Even just transmitting a document by fax, "alters, modifies and changes" the document into an electronic signal so that it can pass through the fax machine, through space, and through the otreceiving fax machine so that it can be altered, modified and changed from an electronic signal, into a facsimilie of the document that was placed in the transmitting fax machine.

 

[Bearslide]

Don,

If the state regulatory agency dictated which delivery system you could, or could not use; why wouldn't that fall under the restraint of trade umbrella? Wouldn't that be the same as telling you which software to use/not use and which clients you could/could not service?

Oregon Doug

That's a good point - but the flip side is - if you use software that you know has the capability to be altered by the end user, are you not now culpable in whatever fraud may occur? Isn't that like pleading with the insurance company to replace your stolen car after you gave the keys to a total stranger?

I would hate to see the states get involved in telling appraisers what software you could or could not use - but if we must be able to produce a true copy of what was sent, then the software makers need to comply and make their product usage transparent - and they all need to stop with the business of lifting signatures. What good is a secure signature when the software lifts it?

And just as states would be guilty of restraint of trade, I believe lenders demanding use of specific software are equally guilty.

To answer Mr Wiley - I think most appraisers LIKE new gadgets, toys, techno-geek stuff that makes it faster, easier. What they DON'T like is software that has the capability of altering reports and that for the NOW, cannot produce a true copy. Yes, there are a few holdouts, but I think the majority go with the flow. All you have to do is read the technical forums here to know that appraisers consider the latest and greatest.

 

[Don Clark]

Don,

If the state regulatory agency dictated which delivery system you could, or could not use; why wouldn't that fall under the restraint of trade umbrella? Wouldn't that be the same as telling you which software to use/not use and which clients you could/could not service?

Oregon Doug

Doug,

In my opinion, no. They would not be telling me what to use or what not to use. Just telling me and other appraisers that I could not knowingly use any system that changed the report into something I did not intend to send the client, or, that is not a true copy of the original report that I have retained in my workfile.

I would also add, that if I were writing the regulation I would also state that if it was someone or some system other than the appraiser that changed such a report prior to receipt by the client, that the appraiser would not be responsible for such changes unless it could be demonstrated that they were complicit in such change or modification. That is not, in my opinion, restraint of trade.

As an example, all of our court systems and the clerk's of the various courts tell lawyers in what form and format they must put all their legal briefs, recordings, liens, and other legal documents in. If it was restraint of trade, lawyers would be the first to sue.

 

[Don Clark]

Just another thought. If fannie Mae, Freddie Mac, and all the others that buy, securitize, insure or guarentee loans that it was such a good idea to create new forms and formats in 2005 on which to complete mortgage related appraisals, why are they the very ones who want to *******ize these very forms and formats by having them modified or changed from the nature and character of the forms and formats we are required to use. Where are these folks in this discussion?

 

[DWiley]

That's a good point - but the flip side is - if you use software that you know has the capability to be altered by the end user, are you not now culpable in whatever fraud may occur?

If one disallows software which results in a report than can be changed, then all software must be banned, especially software that produces PDF files.

.... but I think the majority go with the flow. All you have to do is read the technical forums here to know that appraisers consider the latest and greatest.

Yes, they go with the flow, after they have been drug into the river kicking an screaming . It is easy to forget the reluctance to some of these advances, expecially we now use all of these things without thinking about it. Remember those who insisted that that because digital photos could be altered, they would be the bane of the profession?

 

[DWiley]

Just another thought. If fannie Mae, Freddie Mac, and all the others that buy, securitize, insure or guarentee loans that it was such a good idea to create new forms and formats in 2005 on which to complete mortgage related appraisals, why are they the very ones who want to *******ize these very forms and formats by having them modified or changed from the nature and character of the forms and formats we are required to use. Where are these folks in this discussion?

Don,

Have you ever seen one of the AIReady formatted reports? Some would have you believe that they look nothing like "regular" reports, but that is not true.

DW