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A BILL TO BE ENTITLED
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AN ACT
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relating to the registration and regulation of appraisal management |
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companies; providing administrative penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subtitle A, Title 7, Occupations Code, is |
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amended by adding Chapter 1104 to read as follows: |
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CHAPTER 1104. APPRAISAL MANAGEMENT COMPANIES |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 1104.001. SHORT TITLE. This chapter may be cited as |
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the Texas Appraisal Management Company Registration and Regulation |
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Act. |
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Sec. 1104.002. DEFINITIONS. In this chapter: |
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(1) "Appraisal" means: |
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(A) an estimate of value; or |
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(B) the act or process of estimating value. |
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(2) "Appraisal Foundation" means the Appraisal |
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Foundation, as defined by 12 U.S.C. Section 3350, or its successor. |
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(3) "Appraisal management company" means an external |
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third party authorized either by a creditor of a consumer credit |
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transaction secured by a consumer's principal dwelling or by an |
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underwriter of or other principal in the secondary mortgage markets |
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that directly or indirectly performs appraisal management services |
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in connection with valuing properties collateralizing mortgage |
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loans or mortgages incorporated in a securitization. |
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(4) "Appraisal management service" means to directly |
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or indirectly: |
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(A) administer an appraisal panel; |
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(B) recruit, retain, or select an appraiser; |
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(C) contract with an appraiser to perform an |
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appraisal assignment; |
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(D) provide a completed appraisal performed by an |
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appraiser to one or more clients; or |
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(E) manage the process of having an appraisal |
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performed, including: |
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(i) receiving and assigning appraisal |
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orders and reports; |
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(ii) tracking and determining the status of |
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orders for appraisals; |
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(iii) conducting quality control of a |
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completed appraisal before delivery of the appraisal to the person |
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who ordered the appraisal; |
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(iv) collecting fees from creditors and |
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underwriters for services provided; or |
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(v) reimbursing appraisers for services |
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performed. |
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(5) "Appraisal panel" means a pool of licensed or |
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certified appraisers who perform appraisals for an appraisal |
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management company as independent contractors. |
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(6) "Appraisal Standards Board" means the Appraisal |
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Standards Board of the Appraisal Foundation, or its successor. |
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(7) "Appraisal subcommittee" means the Appraisal |
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Subcommittee of the Federal Financial Institutions Examination |
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Council, or its successor. |
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(8) "Appraiser" means a person licensed or certified |
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under Chapter 1103. |
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(9) "Board" means the Texas Appraiser Licensing and |
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Certification Board. |
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(10) "Controlling person" means: |
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(A) an owner, officer, or director of an |
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appraisal management company; |
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(B) an individual employed, appointed, or |
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authorized by an appraisal management company that has the |
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authority to enter into a contractual relationship with other |
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persons for the performance of appraisal management services and |
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the authority to enter into agreements with appraisers for the |
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performance of appraisals; or |
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(C) an individual who possesses, directly or |
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indirectly, the power to direct or cause the direction of the |
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management or policies of an appraisal management company. |
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(11) "Federal financial institution regulatory |
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agency" means: |
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(A) the Board of Governors of the Federal Reserve |
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System; |
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(B) the Federal Deposit Insurance Corporation; |
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(C) the Office of the Comptroller of the |
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Currency; |
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(D) the Office of Thrift Supervision; |
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(E) the National Credit Union Administration; or |
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(F) the successors of any of those agencies. |
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(12) "Uniform Standards of Professional Appraisal |
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Practice" means the Uniform Standards of Professional Appraisal |
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Practice adopted by the Appraisal Standards Board of the Appraisal |
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Foundation. |
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Sec. 1104.003. EXEMPTIONS. (a) This chapter does not apply |
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to: |
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(1) a person who exclusively employs appraisers on an |
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employer and employee basis for the performance of appraisals; |
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(2) a department or unit within a financial |
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institution that: |
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(A) is subject to direct regulation by an agency |
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of this state or the United States government; and |
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(B) receives a request for the performance of an |
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appraisal from one employee of the financial institution and |
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another employee of the same financial institution assigns the |
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appraisal request to an appraiser who is an independent contractor |
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to the institution; |
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(3) subject to Subsection (b), a person who enters |
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into an agreement with an appraiser for the performance of an |
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appraisal that on completion results in a report signed by both the |
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appraiser who completed the appraisal and the appraiser who |
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requested completion of the appraisal; |
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(4) an appraisal management company with an appraisal |
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panel of not more than 15 appraisers; or |
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(5) an appraisal management company that is a |
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subsidiary owned and controlled by a financial institution that is |
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regulated by a federal financial institution regulatory agency. |
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(b) An appraisal management company may not require an |
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employee of the appraisal management company who is an appraiser to |
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sign an appraisal that is completed by another appraiser who |
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contracts with the appraisal management company in order to avoid |
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the requirements of this chapter. |
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[Sections 1104.004-1104.050 reserved for expansion] |
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SUBCHAPTER B. BOARD POWERS AND DUTIES |
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Sec. 1104.051. RULES. The board may adopt rules necessary |
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to administer this chapter. |
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Sec. 1104.052. FEES. (a) Subject to Subsection (b), the |
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board by rule shall establish an application fee in an amount so |
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that the sum of the fees paid by all appraisal management companies |
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seeking registration under this chapter are sufficient for the |
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administration of this chapter. |
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(b) The application fee established under this section may |
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not exceed $2,500. |
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(c) The board shall collect annually from each appraisal |
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management company registered under this chapter the amount |
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determined by the appraisal subcommittee to be a national registry |
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fee for each person on the appraisal panel of the company. The board |
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shall deposit the registry fees to the credit of the appraiser |
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registry account in the general revenue fund. |
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(d) The fees collected under Subsection (c) shall be sent to |
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the appraisal subcommittee regularly as required by federal law. |
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[Sections 1104.053-1104.100 reserved for expansion] |
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SUBCHAPTER C. REGISTRATION REQUIREMENTS |
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Sec. 1104.101. REGISTRATION REQUIRED. Unless a person is |
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registered under this chapter, a person may not: |
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(1) act as an appraisal management company; |
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(2) provide appraisal management services; or |
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(3) advertise or represent the person as an appraisal |
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management company. |
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Sec. 1104.102. ELIGIBILITY FOR REGISTRATION; OWNERSHIP. |
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(a) An appraisal management company applying for registration |
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under this chapter may not be directly or indirectly owned, wholly |
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or partly, by: |
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(1) a person who has had a license or certificate to |
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act as an appraiser denied, revoked, or surrendered in lieu of |
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revocation in any state; or |
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(2) another entity more than 10 percent of which is |
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owned by any person who has had a license or certificate to act as an |
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appraiser denied, revoked, or surrendered in lieu of revocation in |
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any state. |
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(b) A person owning more than 10 percent of an appraisal |
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management company in this state must: |
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(1) be of good moral character, as determined by the |
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board; and |
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(2) submit to a background investigation, as |
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determined by the board. |
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(c) An appraisal management company applying for |
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registration under this chapter shall certify to the board that: |
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(1) it has reviewed each entity that owns more than 10 |
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percent of the company; and |
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(2) no entity reviewed under Subdivision (1) is more |
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than 10 percent owned by a person who has had a license or |
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certificate to act as an appraiser denied, revoked, or surrendered |
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in lieu of revocation. |
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Sec. 1104.103. APPLICATION FOR REGISTRATION OR RENEWAL. |
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(a) An applicant for registration or registration renewal under |
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this chapter must submit: |
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(1) an application on a form prescribed and provided |
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by the board; and |
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(2) the fee established under Section 1104.052(a). |
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(b) The application must contain: |
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(1) the name, business address, and telephone contact |
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information of the entity seeking registration; |
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(2) if the entity is not a corporation domiciled in |
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this state, the name and contact information for the company's |
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agent for service of process in this state; |
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(3) the name, address, and contact information for any |
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individual or any corporation, partnership, or other business |
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entity that owns more than 10 percent of the appraisal management |
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company; |
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(4) the name, address, and contact information for at |
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least one controlling person; |
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(5) the designation of a primary contact under Section |
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1104.104; |
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(6) a certification that the entity has a system in |
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place to ensure compliance with Sections 1104.152, 1104.156, and |
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1104.157; |
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(7) a written irrevocable consent to service of |
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process; and |
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(8) any other information required by the board. |
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(c) The board shall adopt rules regarding the renewal of a |
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registration under this chapter. |
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Sec. 1104.104. DESIGNATION OF PRIMARY CONTACT. (a) An |
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appraisal management company applying for registration under this |
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chapter shall designate one controlling person as the primary |
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contact for all communication between the board and the company. |
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(b) The controlling person designated under Subsection (a): |
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(1) may not have had a license or certificate to act as |
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an appraiser denied, revoked, or surrendered in lieu of revocation |
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in any state; |
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(2) must be of good moral character, as determined by |
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the board; and |
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(3) shall submit to a background investigation, as |
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determined by the board. |
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Sec. 1104.105. DENIAL OF REGISTRATION. (a) The board may |
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deny a registration: |
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(1) to an applicant who fails to satisfy a requirement |
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of this chapter; or |
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(2) on a determination by the board that: |
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(A) there is probable cause to believe that any |
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person who owns more than five percent of the appraisal management |
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company or any controlling person of the company has, within the 12 |
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months preceding the date of the application, violated a provision |
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of this chapter to which a registrant would be subject; |
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(B) the applicant has, while registered under |
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this chapter, demonstrated incompetency, untrustworthiness, or |
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conduct or practices that render the registrant unfit to perform |
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appraisal management services; or |
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(C) the applicant no longer performs appraisal |
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management services in good faith and is a source of detriment, |
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injury, or loss to the public. |
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(b) The board shall immediately provide written notice to |
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the applicant of the board's denial of a registration under this |
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chapter. |
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(c) An appeal of the denial of a registration is governed by |
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Chapter 2001, Government Code. |
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Sec. 1104.106. ISSUANCE AND PUBLICATION OF REGISTRATION |
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NUMBER. The board shall: |
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(1) issue a unique registration number to each |
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appraisal management company registered under this chapter; and |
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(2) publish annually a list of the companies |
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registered under this chapter and the registration number of each |
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company. |
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Sec. 1104.107. EXPIRATION OF REGISTRATION. Unless renewed, |
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a registration issued under this chapter expires on the first |
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anniversary of the date the registration is issued. |
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[Sections 1104.108-1104.150 reserved for expansion] |
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SUBCHAPTER D. PRACTICE BY APPRAISAL MANAGEMENT COMPANY |
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Sec. 1104.151. EMPLOYMENT OF CERTAIN PERSONS PROHIBITED. |
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An appraisal management company registered under this chapter may |
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not knowingly: |
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(1) employ a person in a position in which the person |
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has the responsibility to order appraisals or to review completed |
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appraisals if the person has had a license or certificate to act as |
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an appraiser denied, revoked, or surrendered in lieu of revocation |
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in any state; |
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(2) enter into any independent contractor arrangement |
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with any person who has had a license or certificate to act as an |
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appraiser denied, revoked, or surrendered in lieu of revocation in |
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any state; or |
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(3) enter into any contract, agreement, or other |
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business relationship with any entity that employs, has entered |
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into an independent contract arrangement, or has entered into any |
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contract, agreement, or other business relationship with any person |
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who has ever had a license or certificate to act as an appraiser |
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denied, revoked, or surrendered in lieu of revocation in any state. |
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Sec. 1104.152. VERIFICATION OF LICENSURE OR CERTIFICATION. |
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An appraisal management company registered under this chapter must |
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verify that an individual to whom the company is making an |
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assignment for the completion of an appraisal: |
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(1) is licensed or certified under Chapter 1103; and |
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(2) has not had a license or certificate as an |
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appraiser denied, revoked, or surrendered in lieu of revocation |
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since the last time the company made an assignment for an appraisal |
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to the appraiser. |
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Sec. 1104.153. APPRAISAL REVIEW. A person who performs an |
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appraisal review for an appraisal management company must be |
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licensed or certified under Chapter 1103. |
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Sec. 1104.154. COMPETENCY OF APPRAISERS. Before making an |
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assignment to an appraiser, an appraisal management company must |
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verify that the appraiser receiving the assignment satisfies each |
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provision of the competency rule of the Uniform Standards of |
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Professional Appraisal Practice for the appraisal being assigned. |
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Sec. 1104.155. COMPLIANCE WITH FEDERAL LAW. An appraisal |
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management company registered under this chapter shall ensure that |
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appraisals are conducted independently and free from inappropriate |
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influence and coercion as required by the appraisal independence |
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standards established under the Truth in Lending Act (15 U.S.C. |
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Section 1601 et seq.). |
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Sec. 1104.156. PROFESSIONAL STANDARDS. An appraisal |
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management company registered under this chapter shall review on a |
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periodic basis the work of all appraisers performing appraisal |
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services for the company to ensure that the services comply with: |
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(1) the most current edition of the Uniform Standards |
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of Professional Appraisal Practice; or |
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(2) other standards prescribed by board rule that are |
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at least as stringent as the Uniform Standards of Professional |
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Appraisal Practice. |
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Sec. 1104.157. BUSINESS RECORDS. An appraisal management |
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company registered under this chapter or that has applied for |
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registration under this chapter shall retain all business records |
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relating to each service request that the company receives and the |
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appraiser who performs the appraisal for the company. |
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Sec. 1104.158. COMPENSATION OF APPRAISERS. An appraisal |
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management company shall: |
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(1) except in cases of breach of contract or |
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substandard performance of services, pay an appraiser for the |
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completion of an appraisal or valuation assignment not later than |
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the 60th day after the date the appraiser provides the completed |
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appraisal or valuation assignment to the company or its assignee; |
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and |
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(2) compensate appraisers at a rate that is reasonable |
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and customary for appraisals being performed in the market area of |
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the property being appraised without the services of an appraisal |
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management company. |
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Sec. 1104.159. STATEMENT OF FEES. (a) An appraisal |
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management company shall separately state the fees: |
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(1) paid to an appraiser for the completion of an |
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appraisal; and |
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(2) charged by the company for appraisal management |
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services. |
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(b) An appraisal management company may not: |
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(1) prohibit an appraiser from recording the fee that |
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the appraiser was paid by the company for the performance of the |
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appraisal in the appraisal report that is submitted by the |
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appraiser to the company; or |
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(2) include any fees for appraisal management services |
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performed by the company in the amount the company charges for the |
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actual completion of an appraisal by an appraiser. |
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Sec. 1104.160. ADVERTISING. An appraisal management |
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company registered under this chapter shall disclose the company's |
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registration number on all print and electronic advertising, |
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including any electronic advertising or communication conducted on |
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the Internet. |
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Sec. 1104.161. MANDATORY REPORTING. An appraisal |
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management company that has a reasonable basis to believe an |
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appraiser is failing to comply with the Uniform Standards of |
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Professional Appraisal Practice, violating applicable laws, or |
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otherwise engaging in unethical or unprofessional conduct shall |
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refer the matter to the board. |
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Sec. 1104.162. REMOVAL OF APPRAISER FROM APPRAISAL PANEL. |
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(a) Other than during the first 30 days after the date an appraiser |
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is first added to the appraisal panel of an appraisal management |
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company, a company may not remove an appraiser from its panel, or |
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otherwise refuse to assign requests for appraisal services to an |
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appraiser without: |
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(1) notifying the appraiser in writing of the reasons |
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for removal from the company's panel; |
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(2) if the appraiser is being removed from the panel |
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for illegal conduct, a violation of the Uniform Standards of |
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Professional Appraisal Practice, or a violation of this chapter, |
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notifying the appraiser of the nature of the alleged conduct or |
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violation; and |
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(3) providing an opportunity for the appraiser to |
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respond to the notification. |
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(b) An appraiser who is removed from the appraisal panel of |
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an appraisal management company for alleged illegal conduct, a |
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violation of the Uniform Standards of Professional Appraisal |
|
Practice, or a violation of this chapter, may file a complaint with |
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the board for a review of the decision of the company. |
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(c) In a review under Subsection (b), the board may not make |
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any determination regarding the nature of the business relationship |
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between the appraiser and the appraisal management company that is |
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unrelated to the grounds for the removal. |
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(d) The board shall hear and resolve a complaint filed under |
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Subsection (b) not later than the 180th day after the date the |
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complaint is filed with the board. |
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(e) If after opportunity for hearing and review, the board |
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determines that an appraiser did not commit the alleged violation, |
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the board shall order that the appraiser be returned to the |
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appraisal panel of the appraisal management company. The appraisal |
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management company may not refuse to make assignments for appraisal |
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services or otherwise penalize the appraiser after returning the |
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appraiser to the company's appraisal panel. |
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[Sections 1104.163-1104.200 reserved for expansion] |
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SUBCHAPTER E. DISCIPLINARY ACTIONS AND PROCEDURES |
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Sec. 1104.201. DISCIPLINARY POWERS OF BOARD. The board may |
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censure an appraisal management company or conditionally or |
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unconditionally suspend or revoke any registration issued under |
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this chapter if the board determines that the appraisal management |
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company has: |
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(1) violated or attempted to violate this chapter or |
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any rule adopted by the board under this chapter; or |
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(2) procured or attempted to procure a license or |
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registration by fraud, misrepresentation, or deceit. |
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Sec. 1104.202. PROHIBITED PRACTICES. (a) An appraisal |
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management company or an employee, director, officer, or agent of |
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an appraisal management company may not: |
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(1) cause or attempt to cause the appraised value of a |
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property assigned under an appraisal to be based on any factor other |
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than the independent judgment of the appraiser; |
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(2) cause or attempt to cause the mischaracterization |
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of the appraised value of a property in conjunction with a consumer |
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credit transaction; |
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(3) seek to influence an appraiser or otherwise to |
|
encourage a targeted value in order to facilitate the making or |
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pricing of a consumer credit transaction; |
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(4) alter, modify, or otherwise change a completed |
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appraisal report submitted by an appraiser by: |
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(A) permanently removing the appraiser's |
|
signature or seal; or |
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(B) adding information to or removing |
|
information from the appraisal report with an intent to change the |
|
valuation conclusion; |
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(5) condition the request for an appraisal or the |
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payment of an appraisal fee, salary, or bonus on the opinion, |
|
conclusion, or valuation to be reached, or on a preliminary |
|
estimate or opinion requested from an appraiser; |
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(6) request that an appraiser provide an estimated, |
|
predetermined, or desired valuation in an appraisal report, or |
|
provide estimated values or comparable sales at any time before the |
|
appraiser's completion of an appraisal; |
|
(7) provide to an appraiser an anticipated, estimated, |
|
encouraged, or desired value for a subject property or a proposed or |
|
target amount to be loaned to the borrower, except that a copy of |
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the sales contract for a purchase transaction may be provided; |
|
(8) make any part of the appraiser's fee or the |
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appraisal management company's fee contingent on a favorable |
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outcome, including: |
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(A) a loan closing; or |
|
(B) a specific valuation being achieved by the |
|
appraiser in the appraisal report; |
|
(9) withhold or threaten to withhold timely payment |
|
for an appraisal report or appraisal services rendered when the |
|
appraisal report or services are provided in accordance with the |
|
contract between the parties; |
|
(10) withhold or threaten to withhold future business |
|
from an appraiser; |
|
(11) demote or terminate or threaten to demote or |
|
terminate an appraiser; |
|
(12) expressly or impliedly promise future business, |
|
promotions, or increased compensation for an appraiser; |
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(13) provide to an appraiser, or any person related to |
|
the appraiser, stock or other financial or nonfinancial benefits; |
|
(14) allow the removal of an appraiser from an |
|
appraisal panel, without prior written notice to the appraiser; |
|
(15) obtain, use, or pay for a second or subsequent |
|
appraisal or order an automated valuation model in connection with |
|
a mortgage financing transaction unless: |
|
(A) there is a reasonable basis to believe that |
|
the initial appraisal was flawed or tainted and that basis is |
|
clearly and appropriately noted in the loan file; or |
|
(B) the subsequent appraisal or automated |
|
valuation model is done under a bona fide pre-funding or |
|
post-funding appraisal review or quality control process; |
|
(16) prohibit or inhibit communication between the |
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appraiser and: |
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(A) the lender; |
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(B) a real estate license holder; or |
|
(C) any other person from whom the appraiser, in |
|
the appraiser's own professional judgment, believes information |
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would be relevant; |
|
(17) request, for the purpose of facilitating a |
|
mortgage loan transaction: |
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(A) a broker price opinion; or |
|
(B) any other real property price or value |
|
estimation that does not qualify as an appraisal; or |
|
(18) require an appraiser to: |
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(A) prepare an appraisal report if the appraiser, |
|
in the appraiser's own professional judgment, believes the |
|
appraiser does not have the necessary expertise for the specific |
|
geographic area; |
|
(B) prepare an appraisal report under a schedule |
|
that the appraiser, in the appraiser's own professional judgment, |
|
believes does not afford the appraiser the ability to meet all the |
|
relevant legal and professional obligations; |
|
(C) provide the appraisal management company |
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with the appraiser's digital signature or seal; |
|
(D) modify any aspect of an appraisal report; |
|
(E) engage in any act or practice that does not |
|
comply with: |
|
(i) the Uniform Standards of Professional |
|
Appraisal Practice; or |
|
(ii) any assignment conditions and |
|
certifications required by the client; or |
|
(F) engage in any other act or practice that |
|
impairs or attempts to impair an appraiser's independence, |
|
objectivity, or impartiality. |
|
(b) Subsection (a) may not be construed as prohibiting: |
|
(1) an appraiser from voluntarily providing the |
|
appraiser's digital signature to another person; or |
|
(2) an appraisal management company from asking an |
|
appraiser to: |
|
(A) consider additional appropriate property |
|
information, including the consideration of additional comparable |
|
properties to make or support an appraisal; |
|
(B) provide further detail, substantiation, or |
|
explanation for the appraiser's value conclusion; or |
|
(C) correct errors in the appraisal report. |
|
Sec. 1104.203. COMPLAINT. (a) Any person, including a |
|
member of the board, may file with the board a written complaint on |
|
a form prescribed by the board. |
|
(b) The board, on its own motion, may file a complaint |
|
against an appraisal management company registered under this |
|
chapter. |
|
Sec. 1104.204. REVIEW AND INVESTIGATION. (a) On receipt |
|
of a complaint or on its own motion, the board shall review and |
|
investigate an alleged act or omission that the board believes is a |
|
ground for disciplinary action. |
|
(b) An investigator designated by the presiding officer of |
|
the board shall investigate each allegation in a complaint to |
|
determine whether probable cause exists for a hearing on the |
|
complaint. |
|
(c) If the board determines that a complaint does not |
|
present facts that are grounds for disciplinary action, the board |
|
or the commissioner shall dismiss the complaint and may not take |
|
further action. |
|
Sec. 1104.205. GENERAL SUBPOENA AUTHORITY. (a) The board |
|
may request and, if necessary, compel by subpoena: |
|
(1) the attendance of witnesses for examination under |
|
oath; and |
|
(2) the production of records, documents, and other |
|
evidence relevant to the investigation of an alleged violation of |
|
this chapter for inspection and copying. |
|
(b) The board may also issue a subpoena for purposes of an |
|
investigation of a complaint to determine whether the board should |
|
institute a contested case proceeding. |
|
(c) If a person does not comply with a subpoena, the board, |
|
acting through the attorney general, may file suit to enforce the |
|
subpoena in a district court in Travis County or in the county in |
|
which a hearing conducted by the board may be held. |
|
(d) The court shall order compliance with the subpoena if |
|
the court finds that good cause exists for the issuance of the |
|
subpoena. |
|
Sec. 1104.206. REPORT OF INVESTIGATION REQUIRED. (a) At |
|
the conclusion of the investigation of a complaint, the |
|
investigator shall submit to the board a written report to enable |
|
the board to determine what further action is necessary. |
|
(b) The report must contain: |
|
(1) statements of fact; |
|
(2) the recommendations of the investigator; and |
|
(3) the position or defense of the investigated |
|
appraisal management company. |
|
Sec. 1104.207. ACTION BASED ON REPORT. Based on the report |
|
submitted under Section 1104.206, the board may: |
|
(1) order further investigation of the complaint; |
|
(2) determine that there is not probable cause to |
|
believe that a violation occurred and dismiss the case; or |
|
(3) determine that there is probable cause to believe |
|
that a violation occurred and proceed as the complainant with a |
|
contested case hearing under Chapter 2001, Government Code. |
|
Sec. 1104.208. NOTICE OF HEARING. Not later than the 30th |
|
day before the hearing date of a contested case involving an |
|
appraisal management company, the board shall personally deliver or |
|
send by certified mail to the company notice of the hearing. |
|
Sec. 1104.209. APPLICABILITY OF ADMINISTRATIVE PROCEDURE |
|
LAW. Except as otherwise provided by this chapter, a proceeding |
|
under this subchapter is subject to Chapter 2001, Government Code. |
|
Sec. 1104.210. ACTION AFTER HEARING. On conclusion of a |
|
contested case hearing under this subchapter, the administrative |
|
law judge shall: |
|
(1) make findings of fact and conclusions of law; and |
|
(2) issue to the board a proposal for decision that the |
|
board shall take one or more of the following actions: |
|
(A) dismiss the charges, including issuing an |
|
order declaring that the case file is confidential; |
|
(B) revoke the appraisal management company's |
|
registration; |
|
(C) suspend the registration of the appraisal |
|
management company for a period of not more than five years; |
|
(D) impose a period of probation, with or without |
|
conditions; |
|
(E) issue a public or private reprimand or a |
|
warning; or |
|
(F) require the payment of costs expended by the |
|
board associated with the contested case, including legal fees and |
|
administrative costs. |
|
[Sections 1104.211-1104.250 reserved for expansion] |
|
SUBCHAPTER F. ADMINISTRATIVE PENALTY |
|
Sec. 1104.251. IMPOSITION OF PENALTY. The board may impose |
|
an administrative penalty against a person who violates this |
|
chapter or a rule adopted under this chapter. |
|
Sec. 1104.252. AMOUNT OF PENALTY. (a) The amount of the |
|
administrative penalty may not exceed $25,000 for each violation. |
|
Each day of a continuing violation is a separate violation. |
|
(b) The amount of the penalty shall be based on: |
|
(1) the seriousness of the violation; |
|
(2) the history of previous violations; |
|
(3) the amount necessary to deter a future violation; |
|
(4) efforts made to correct the violation; and |
|
(5) any other matter that justice may require. |
|
Sec. 1104.253. NOTICE OF VIOLATION AND PENALTY. (a) If, |
|
after investigating a possible violation and the facts surrounding |
|
that possible violation, the board determines that a violation |
|
occurred, the board shall give written notice of the violation to |
|
the person alleged to have committed the violation. |
|
(b) The notice must: |
|
(1) include a brief summary of the alleged violation; |
|
(2) state the amount of the proposed administrative |
|
penalty; and |
|
(3) inform the person of the person's right to a |
|
hearing on the occurrence of the violation, the amount of the |
|
penalty, or both. |
|
Sec. 1104.254. PENALTY TO BE PAID OR HEARING REQUESTED. (a) |
|
Not later than the 30th day after the date the person receives the |
|
notice, the person may: |
|
(1) accept the board's determination, including the |
|
proposed administrative penalty; or |
|
(2) make a written request for a hearing on that |
|
determination. |
|
(b) If the person accepts the board's determination, the |
|
board by order shall approve the determination and impose the |
|
proposed penalty. |
|
Sec. 1104.255. HEARING. (a) If the person timely requests |
|
a hearing, the board shall: |
|
(1) set a hearing; |
|
(2) give written notice of the hearing to the person; |
|
and |
|
(3) designate a hearings examiner to conduct the |
|
hearing. |
|
(b) The hearings examiner shall make findings of fact and |
|
conclusions of law and promptly issue to the board a proposal for |
|
decision regarding the occurrence of the violation and the amount |
|
of any proposed administrative penalty. |
|
Sec. 1104.256. DECISION BY BOARD. (a) Based on the |
|
findings of fact and conclusions of law and the recommendations of |
|
the hearings examiner, the board by order may determine that: |
|
(1) a violation has occurred and may impose an |
|
administrative penalty; or |
|
(2) a violation did not occur. |
|
(b) The board shall give notice of the order to the person. |
|
The notice must include: |
|
(1) separate statements of the findings of fact and |
|
conclusions of law; |
|
(2) the amount of any penalty imposed; and |
|
(3) a statement of the right of the person to judicial |
|
review of the order. |
|
Sec. 1104.257. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. |
|
(a) Not later than the 30th day after the date on which the order |
|
becomes final, the person shall: |
|
(1) pay the administrative penalty; |
|
(2) pay the penalty and file a petition for judicial |
|
review contesting the occurrence of the violation, the amount of |
|
the penalty, or both; or |
|
(3) without paying the penalty, file a petition for |
|
judicial review contesting the occurrence of the violation, the |
|
amount of the penalty, or both. |
|
(b) Within the 30-day period following the date on which the |
|
order becomes final, a person who acts under Subsection (a)(3) may: |
|
(1) stay enforcement of the penalty by: |
|
(A) paying the penalty to the court for placement |
|
in an escrow account; or |
|
(B) giving to the court a supersedeas bond that |
|
is approved by the court for the amount of the penalty and that is |
|
effective until all judicial review of the order is final; or |
|
(2) request the court to stay enforcement of the |
|
penalty by: |
|
(A) filing with the court a sworn affidavit of |
|
the person stating that the person is financially unable to pay the |
|
penalty and is financially unable to give the supersedeas bond; and |
|
(B) giving a copy of the affidavit to the board by |
|
certified mail. |
|
(c) If the board receives a copy of an affidavit as provided |
|
by Subsection (b)(2), the board may file with the court a contest to |
|
the affidavit not later than the fifth day after the date the copy |
|
is received. |
|
(d) The court shall hold a hearing on the facts alleged in |
|
the affidavit as soon as practicable and shall stay the enforcement |
|
of the penalty on finding that the alleged facts are true. The |
|
person who files an affidavit has the burden of proving that the |
|
person is financially unable to pay the penalty and to give a |
|
supersedeas bond. |
|
Sec. 1104.258. COLLECTION OF PENALTY. If the person does |
|
not pay the administrative penalty and the enforcement of the |
|
penalty is not stayed, the board may refer the matter to the |
|
attorney general for collection. |
|
Sec. 1104.259. DETERMINATION BY COURT. (a) If the court |
|
sustains the determination that a violation occurred, the court may |
|
uphold or reduce the amount of the administrative penalty and order |
|
the person to pay the full or reduced amount. |
|
(b) If the court does not sustain the determination that a |
|
violation occurred, the court shall order that a penalty is not |
|
owed. |
|
Sec. 1104.260. REMITTANCE OF PENALTY AND INTEREST. (a) If, |
|
after judicial review, the administrative penalty is reduced or not |
|
imposed by the court, the court shall, after the judgment becomes |
|
final: |
|
(1) order the appropriate amount, plus accrued |
|
interest, be remitted to the person by the board if the person paid |
|
the penalty under Section 1104.257(a)(2); or |
|
(2) if the person paid the penalty under Section |
|
1104.257(b)(1)(A) or posted a supersedeas bond, order the board to: |
|
(A) execute a complete release of the escrow |
|
account or bond, as appropriate, if the penalty is not imposed; or |
|
(B) release the escrow account or bond, as |
|
appropriate, after the reduced penalty has been paid from the |
|
account or by the person. |
|
(b) The interest paid under Subsection (a)(1) is accrued at |
|
the rate charged on loans to depository institutions by the New York |
|
Federal Reserve Bank. The interest shall be paid for the period |
|
beginning on the date the penalty is paid and ending on the date the |
|
penalty is remitted. |
|
Sec. 1104.261. EXPENSES AND COSTS. (a) In this section, |
|
"reasonable expenses and costs" includes expenses incurred by the |
|
board and the attorney general in the investigation, initiation, or |
|
prosecution of an action, including reasonable investigative |
|
costs, court costs, attorney's fees, witness fees, and deposition |
|
expenses. |
|
(b) The board may assess reasonable expenses and costs |
|
against a person in an administrative hearing if, as a result of the |
|
hearing, an administrative penalty is assessed against the person. |
|
The person shall pay expenses and costs assessed under this |
|
subsection not later than the 30th day after the date the order of |
|
the board requiring the payment of expenses and costs is final. The |
|
board may refer the matter to the attorney general for collection of |
|
the expenses and costs. |
|
(c) If the attorney general brings an action against a |
|
person to enforce an administrative penalty assessed under this |
|
subchapter and the person is found liable for an administrative |
|
penalty, the attorney general may recover, on behalf of the |
|
attorney general and the board, reasonable expenses and costs. |
|
Sec. 1104.262. ADMINISTRATIVE PROCEDURE. A proceeding |
|
under this subchapter is subject to Chapter 2001, Government Code. |
|
SECTION 2. Not later than January 1, 2012, the Texas |
|
Appraiser Licensing and Certification Board shall adopt all rules, |
|
fees, and forms as required by Chapter 1104, Occupations Code, as |
|
added by this Act. |
|
SECTION 3. (a) Except as provided by Subsection (b) of this |
|
section, this Act takes effect September 1, 2011. |
|
(b) Section 1104.101 and Subchapter F, Chapter 1104, |
|
Occupations Code, as added by this Act, take effect March 1, 2012. |