NAR Supports Use of BPOs in HAFA Program

The allowance of broker price opinions (BPOs) in the administration’s Home Affordable Foreclosure Alternatives (HAFA) program has created a major controversy.

As DSNews.com previously reported, four appraisal organizations recently wrote a letter to Treasury Secretary Timothy Geithner, voicing concerns over the use of BPOs for short sales under HAFA. In response to this opposition, Vicki Cox Golder, president of the National Association of Realtors (NAR), wrote her own letter, supporting HAFA and its allowance of BPOs.
The letter, which was addressed to both Treasury Secretary Geithner and HUD Secretary Shaun Donovan, was written on behalf of the 1.2 million members of NAR.
Golder said NAR recognizes the need for flexibility in any mortgage modification or short sale program to ensure all parties are treated fairly and appropriately. While an appraisal is a very important part of a purchase money mortgage transaction, it may not be the best tool for other real estate transactions, she said. NAR believes that in many cases, a more appropriate and cost-efficient measure is the BPO.
“BPOs are completed by licensed real estate agents with a detailed knowledge and understanding of real estate pricing and local market trends developed through active participation in the listing, negotiation, and sale of properties,” Golder wrote. “This perspective offers a unique viewpoint that supports sound real estate decisions with accurate estimates of the value of real estate.”
According to NAR, BPOs are widely accepted in the real estate industry, due to their established reliability and accuracy. Fannie Mae and Freddie Mac permit BPOs in certain circumstances, the FDIC and the Federal Reserve Board permit the use of BPOs in various programs, and BPOs are also accepted by banks, lenders, and all major loan servicers for a number of purposes.
Golder said the use of BPOs to analyze mortgage loan portfolios for risk management, due diligence, and fraud detection purposes is an important part of the mortgage

lending industry. BPOs are viewed as a valuable tool to assist lenders, loan servicers, and investors in making decisions related to refinances, home equity loans, and secondary market transactions related to loan portfolios, and the use of BPOs in these situations benefits borrowers through increased efficiencies and reduced servicing costs, she explained.
The appraisal organization’s letter noted that law enforcement officials have highlighted loan modification fraud-including fraud involving short sales-as a new form of mortgage fraud. To mitigate such conflicts, the coalition of appraisal organizations urged the department to reestablish independence in the valuation process.
“Generally speaking, real estate agents and brokers are not independent or properly trained valuation specialists,” the letter said. “They have an inherent bias towards quick results and actions which produce a fee for themselves, irrespective of whether the lender, servicer, investor, property owner, and/or borrower gets a fair return on the short sale.”
In her letter, Golder said there is no evidence to support the assertion that appraisers are more or less likely to engage in mortgage fraud than real estate agents. She said many of NAR’s members conduct BPOs, and to do so, they must adhere to a rigorous code of ethics.
This code requires a Realtor to complete a BPO within a specified framework. In addition, Realtors have a fiduciary responsibility to their clients and are required to perform their duties consistent with “the standards of practice and competence which are reasonably expected in the specific real estate disciplines in which they engage.”
Additionally, Golder said there is no evidence that a BPO exacerbates mortgage fraud or abuse. The appraisal organizations cited a recent study from Interthinx, which specifically mentioned property valuation fraud. According to the study, bank-owned fraud attributed directly to schemes involving shorts sales and REO inventories increased by nearly 50 percent over the past year and 100 percent over the past two years. However, Golder said the study did not consider the method of valuation used for transactions that may be fraudulent.
The coalition of appraisal organizations also claimed that in at least 23 states, the ability of a real estate agent or broker to perform a BPO is specifically limited to assisting a buyer or seller, or a potential buyer or seller, in establishing a listing or offering price for a property. Golder said this assertion is simply incorrect.
“We urge you to examine the relevant state statutes and not accept this argument at face value, as we believe the use of BPOs for short sales and other purposes is clearly permissiable in most, if not all, states,” Golder wrote.

GUIDANCE CONCERNING DESKTOP APPRAISAL ORDERS

A new desktop appraisal product was released in February 2010. The Appraisal Board has received numerous telephone calls and emails about this product and others that are similar. Although the Board does not approve or prohibit specific forms or software used to deliver appraisal results, the Board does have several concerns about this type of assignment.

An assignment is an agreement between an appraiser and a client for a valuation service. Once an appraiser accepts an assignment, USPAP applies to the appraiser’s actions. Even if an appraiser ends up not completing the assignment or does not get paid, the appraiser must still comply with USPAP. If an appraisal report is created and sent to the client, a workfile must be produced and maintained. USPAP requires that the work file must contain enough information to produce a summary appraisal report from the workfile contents. 

This is a valuation service regarding the subject property that would have to be disclosed under the 2010 change to the Conduct Section of the Ethics Rule of USPAP, even if no report was transmitted and/or no payment was received.  According to the instructions for this product, if an appraiser accepts an assignment to do this type of appraisal but subsequently discovers that the subject property does not meet minimum requirements, the appraiser will not get paid. This is referred to as a “no-hit”. Since an assignment that results in a  “no-hit” may not be tracked in invoicing software, the assignment would have to be entered into some other type of tracking software to make sure one complied with the new disclosure requirement in USPAP.
 

The Scope of Work Rule of USPAP states that the appraiser, not the client, must determine the scope of work necessary to develop credible assignment results. In addition, the Scope of Work rule states that “An appraiser must not allow assignment conditions to limit the scope of work to such a degree that the assignment results are not credible in the context of the intended use.”  There are several assignment conditions in this product that are referred to as “appraisal report minimum requirements”. Some may be unacceptable.

This product requires appraisers to use MLS as the primary data source. In many areas of our state, MLS is not available or is unreliable. A better source of data might be the county tax office or a private data collection system.  The product also requires that appraisers must use a minimum of three closed comparable sales and a comparable listing and/or pending sale.  At least two of the comparable sales must be less than 120 days old, and at least two must be located within one mile of the subject. The GLA of the comparable sales must be within 20% of the GLA of the subject. Appraisals of condominiums with more than 15 units must include at least two comparable sales from the development within the last 12 months and at least one comparable listing and/or pending sale from the development. Condominiums with 15 units or less must include at least one comparable sale from the development within the past 12 months and, when available, a comparable listing or pending sale from the development. This product does not allow the appraiser to use the best data available and may well limit the amount of work performed to such an extent as to violate the Scope of Work Rule.

Of major concern is the assignment condition that the appraiser will not receive a fee if the appraiser cannot meet all the product requirements. As noted above, this is referred to as a “no hit”.  “No-hits” are produced when the appraiser cannot produce a credible value due to insufficient subject data, the subject is an ineligible property type, the appraiser cannot meet all of the minimum report requirements, the subject is zoned commercial/industrial, or the subject is not at its highest and best use.    

It appears that the assignment conditions may violate the Management Section of the Ethics Rule. For example, if the appraiser searches for comps but discovers there have been none within the last 120 days, the appraiser will not get paid. If the subject is located in a transitional area and the highest and best use would be as an interim or commercial use, it is a “no-hit” and there is no fee. The fee for the assignment is contingent on a predetermined result - the reporting of comps that meet certain criteria, or a finding that the subject meets the product requirements.  This type of assignment may result in the loss of objectivity. An appraiser may be tempted to use sales that he or she would not otherwise use, or to simply concur that the current use is the highest and best use, in order to receive a fee. The fact that an appraisal may not be completed (a “no-hit”) is irrelevant. The Ethics Rule prohibits accepting such an assignment.

There are appraisal products on the market now that allow or even require the appraiser to choose comparable sales from a database maintained by the software vender or client. Most of the comps in those systems are datamined from other appraisal reports. These services are not connected directly to a local MLS system. Sometimes an employee of the software company may contact local real estate brokers to obtain comparable sales. If an appraiser uses this database for sales, the database must be listed as the source for comparable sales, with MLS or another source used for verification of those sales. In addition, if the appraiser is given comparable sales by the client or vendor, the appraiser must disclose that he or she received significant assistance in choosing comparable sales.

Some of these products give an appraiser a discount if the appraiser voluntarily “contributes” appraisal reports to the software database so that subject and comparable information can be mined. Keep in mind that doing so is a violation of the Confidentiality Section of the Ethics Rule of USPAP, as assignment results are also communicated to the database.

A final note – the low fee paid for this assignment does not in any way lessen the appraiser’s legal requirement to comply with USPAP.

 

Mindy Sealy North Carolina Appraisal Board