Alston & Bird Consumer Finance Blog

Appraisal and Valuation

Moving to Address Appraisal Bias, Agencies and the Appraisal Foundation Issue Updates

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A&B ABstract:

 A year and a half after President Biden’s announcement of the Interagency Task Force on Property Appraisal and Valuation Equity (“PAVE”), the past weeks have seen a flurry of activity from federal agencies and the Appraisal Foundation to address issues of bias in residential property appraisal.  What should lenders, servicers, and appraisers know?

Background:

In June 2021, President Biden announced the formation of the PAVE Task Force, comprising 13 federal agencies, including the White House Domestic Policy Council.  He tasked the group with identifying and evaluating “the causes, extent, and consequences of appraisal bias and to establish a transformative set of recommendations to root out racial and ethnic bias in home valuations.”

In March 2022, the member agencies of the PAVE Task Force published an action plan, announcing a series of concrete commitments to address appraisal bias in five broad categories:

  • strengthening guardrails against discrimination in all stages of residential valuation;
  • enhancing fair housing and fair lending enforcement, and driving accountability in the appraisal industry;
  • building a diverse, well-trained, and accessible appraiser workforce;
  • empowering consumers to take action against bias; and
  • giving researchers and enforcement agencies better data to study and monitor valuation bias.

While the Task Force’s activity is ongoing, federal agencies in the past few weeks have announced a series of steps that are in line with the PAVE goal of addressing real property appraisal bias.

FHA: Draft Mortgagee Letter on Reconsiderations of Value and Appraisal Review

On January 3, 2023, the Federal Housing Administration (“FHA”) published for public comment a draft mortgagee letter, Borrower Request for Review of Appraisal Results, that would permit a second appraisal to be ordered if a Direct Endorsement underwriter determines that an original appraisal contains a material deficiency.  The letter would expressly identify as a material deficiency – one that would directly impact value and marketability of the underlying property – either indications of unlawful bias in the appraisal or of a violation of applicable federal, state, or local fair housing and non-discrimination laws.

Further, the draft mortgagee letter would require the underwriter in a transaction involving an FHA-insured loan to “review the appraisal and determine that it is complete, accurate, and provides a credible analysis of the marketability and value of the Property.”  Among other criteria, this would require the underwriter to make a determination of whether the appraisal is materially deficient – that is, whether the appraisal contains indications of unlawful bias or of a violation of applicable fair housing and non-discrimination laws.  Providing a “credible analysis” exceeds the scope of a quality control review.  If included in a finalized mortgagee letter, it would require lenders to determine whether underwriters must be state-licensed or -certified appraisers.

The draft mortgagee letter also sets forth standards for the submission and consideration of a borrower’s request for a review of appraisal results, including the submission of a reconsideration of value request to the appraiser.

VA: Enhanced Oversight Procedures to Combat Appraisal Bias

On January 18, the Department of Veterans Affairs (“VA”) issued Circular 26-23-05, detailing the enhanced oversight procedures that the VA has adopted “to identify discriminatory bias in home loan appraisals and act against participants who illegally discriminate based on race, color, national origin, religion, sex (including gender identity and sexual orientation), age, familial status, or disability.”

In the Circular, the VA indicated that it will review all appraisal reports submitted in connection with VA-guaranteed home loans to identify any potential discriminatory bias.  The VA will: (a) conduct an escalated review of any suspected incidents of bias; and (b) remove from its panel of approved appraisers any individual who is confirmed to have provided a biased appraisal as the result of such a review.

The VA also reminded panel appraisers that in submitting a Fannie Mae Form 1004 (Uniform Residential Appraisal Report), they certify that they have not based the opinion communicated in an appraisal report on discriminatory factors (e.g., the race) of either the property applicants or the residents of the area in which the property is located.

Appraisal Foundation: Proposed Revision of Appraisal Standards

In mid-December, the Appraisal Standards Board (“ASB”) of the Appraisal Foundation released its fourth exposure draft of proposed changes to the Uniform Standards of Professional Appraisal Practice (“USPAP”), the operational standards that govern real property appraisal practice.

In response to comments received in response to the last draft, the ASB proposes to add to the USPAP Ethics Rule a section expressly discussing non-discrimination.  The proposed section would prohibit appraisers from engaging in both unethical discrimination and illegal discrimination, and would provide guidance as to the type of conduct constituting each form.

Unethical Discrimination:

First, the ASB proposes to include an express statement that an appraiser must not engage in unethical discrimination.  First, that prohibition would preclude an appraiser from developing and/or reporting an opinion or value that is based, in whole or in part, on the actual or perceived protected characteristics of any person.

Second, the rule would prohibit an appraiser from performing an assignment with bias with respect to the actual or perceived protected characteristics of any person – meaning that the appraiser may not engage in any discriminatory conduct (regardless of whether it arises in the course of developing and/or reporting an opinion of value). For purposes of this prohibition, the rule would utilize the USPAP definition of bias: “a preference or inclination that precludes an appraiser’s impartiality, independence, or objectivity in an assignment.”

The rule would make a limited exception for activity that qualifies with “limited permissive language,” permitting an appraiser to use or rely upon a protected characteristic in an assignment only where:

  • laws and regulations expressly permit or otherwise allow the consideration of a protected characteristic;
  • use of or reliance on that characteristic is essential to the assignment and necessary for credible assignment results; and
  • consideration of the characteristic is not based upon bias, prejudice, or stereotype.

The exposure draft provides as an example of activity that might qualify for the exception the completion of an appraisal review in order to determine whether the initial appraisal was discriminatory.

The ASB proposal makes clear that because “an appraiser’s ethical duties are broader than the law’s prohibitions,” an appraiser may commit unethical discrimination without violating any applicable law; however, an act that “constitutes illegal discrimination … will also constitute unethical discrimination.”

Illegal Discrimination:

Complementing the prohibitions discussed above, the ASB proposes to include an express statement that an appraiser must not engage in illegal discrimination – conduct that violates the minimum standards of anti-discrimination set forth in the Fair Housing Act (“FHA”), the Equal Credit Opportunity Act (“ECOA”), and Section 1981 of the Civil Rights Act of 1866 (“Section 1981”).  The rule would impose on appraisers a duty to understand and comply with such laws as they apply to the appraiser and the appraiser’s assignments, including the concepts of disparate treatment and disparate impact.  Further, the rule would prohibit an appraiser from using or relying on a non-protected characteristic as a pretext to conceal the use of or reliance upon protected characteristics when performing an assignment.

Further Guidance:

 The exposure draft indicates that the ASB would follow the adoption of the new non-discrimination section of the ethics rule with detailed guidance on the scope of these prohibitions, including:

  • Background on federal, state, and local anti-discrimination laws;
  • Guidance on the application of FHA, ECOA, and Section 1981 to appraisals of residential real property;
  • Explanation of the disparate treatment and disparate impact theories of discrimination, including examples relating to appraisal practice;
  • Guidance on neighborhood discrimination in real property appraisals; and
  • Clarification on acceptable uses of protected characteristics, in connection with the “limited permissive language” exception for the prohibition against unethical discrimination.

OMB: AVM Rule on Regulatory Agenda

 Automated valuation models  (“AVMs”) are considered a useful tool to help mitigate appraisal discrimination.  On January 4, the Office of Management and Budget (“OMB”) released its Fall 2022 Regulatory Agenda.  Among other topics, OMB indicated that an interagency proposed rule addressing quality control standards for AVMs is expected in March 2023. The Dodd-Frank Act’s amendments to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”) require the federal banking regulatory agencies to undertake this rulemaking.

 ASC: Hearing on Appraisal Bias

 On January 24, the Appraisal Subcommittee (“ASC”) of the Federal Financial Institutions Examination Council held a hearing on appraisal bias.  Of note, Consumer Financial Protection Bureau Director Rohit Chopra ended the hearing by articulating the objective that the “lodestar” of appraisals is an appraisal that neither too high nor too low, but rather is accurate.    Director Chopra then questioned the regulatory structure governing appraisals, calling it “byzantine.”  His remarks focused on the funding mechanism between the Appraisal Institute and the Appraisal Foundation, implying that there may be a conflict of interest.

To understand Director Chopra’s comment requires knowledge of the current regulatory framework, which Title XI of FIRREA established in 1989.   It includes three principal parties: the ASC, the Appraisal Foundation, and the Appraisal Institute:

  • The ASC is a federal agency with oversight responsibility of the state appraisal regulatory structure for real property appraisers as well as to monitor activities of the Appraisal Foundation.
  • The Appraisal Foundation is a private non-profit educational organization. Through the ASB and the Appraiser Qualifications Board (“AQB”), the Appraisal Foundation sets the ethical and performance standards of appraisers in the USPAP.  The AQB establishes the minimum education, experience, and examination requirements for real property appraisers, which are then enforced by state regulatory agencies.  The Appraisal Foundation is funded through sales of publications and services, as well as by its sponsoring organizations.
  • The Appraisal Institute is a private professional organization of appraisal professionals, and is one of the sponsoring organizations of the Appraisal Foundation.

Takeaway

 Viewed through the lens of the overall PAVE Task Force efforts, actions by the FHA and the VA show early and concrete action to address residential appraisal bias.  Because they implicate government insurance and guarantee programs, the focus is particularly important for lenders and appraisers to take heed of – such that documentation submitted to the agencies is accurate.

Appraisers should also take note of the updated USPAP exposure draft as it moves toward final adoption, so that they are aware of their responsibilities with respect to avoiding bias in appraisal reports. Finally, with regulators scrutinizing the appraisal framework – as seen in the OMB and ASC announcements – more significant changes are expected.

PAVE Task Force Issues Action Plan to Address Appraisal Bias

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A&B Abstract: As part of the Biden Administration’s stated focus on narrowing the racial gap in wealth and homeownership, federal agencies launched an Interagency Task Force on Property Appraisal and Valuation Equity (PAVE), with the goal of “addressing the persistent misvaluation and undervaluation of properties experienced by families and communities of color.” On March 23, 2022, the PAVE Task Force released its Action Plan, which contains 21 specific actions to be taken by the 13 member agencies and offices of the Task Force and, in certain cases, Government-Sponsored Enterprises (GSEs), as well as general recommendations for the appraisal industry.

Components of the PAVE Action Plan: The Action Plan delineates 21 specific actions for the appraisal industry, with the goal of:

  • Increasing accountability and oversight of the appraisal industry, primarily by encouraging federal agencies to update their appraisal-specific policies and guidelines, expand regulatory agency examinations of mortgage lenders, and enhance interagency coordination and collaboration.
  • Ensuring that consumers are fully informed regarding the steps they can take after receiving a property valuation that is lower than expected, including the reconsideration of value process.
  • Preventing algorithmic bias by incorporating a “nondiscrimination quality control standard” into proposed federal rulemaking for automated valuation models (AVMs).
  • Promoting diversity in the appraiser profession by “remov[ing] unnecessary educational and experience requirements that make it difficult for underrepresented groups to access the profession,” as well as by bolstering fair lending training of existing appraisers.
  • Developing an aggregated database of federal appraisal data to better study, understand, and address appraisal bias, “complemented by a working group of subject matter experts from stakeholder agencies.”

Scope of the Action Plan: It is worth noting that, apart from these recommendations and the overall push toward federal rulemaking regarding appraisals, the PAVE Action Plan does not itself propose any substantive changes to the existing appraisal process. Unlike recent suggestions by various advocacy groups and public policy organizations, the PAVE Action Plan does not recommend specific revisions to the Uniform Standards of Professional Appraisal Practice (USPAP), such as identifying the homeowner or mortgage loan borrower as the intended user of the appraisal report. Rather, the Action Plan focuses on the existence of appraisal bias in home purchase appraisals (while acknowledging that refinances have not been studied as extensively) and suggests that more work is needed to evaluate alternatives to traditional appraisals, the use of range-of-value estimates in lieu of point estimates, and potential modifications to the sales comparison approach to appraisals. Notably, the Action Plan also acknowledges the federal government’s historical role in increasing valuation bias through the implementation of the Home Owners Loan Corporation.

Federal agency reaction: In response to the Action Plan, certain member agencies have publicly pledged their commitment to eradicating appraisal bias. For one, the Consumer Financial Protection Bureau (CFPB) has announced that it will be “closely scrutinizing the work of The Appraisal Foundation,” “working to implement a dormant authority in federal law to ensure that algorithmic valuations are fair and accurate,” and “developing a proposed rule.” The Federal Housing Finance Agency added that it will be “working with HUD and other interagency partners to share information and resources that strengthen fair lending oversight of the mortgage finance system.”

Takeaways: The various components of the Action Plan demonstrate that collaboration between lenders, federal agencies, advocacy groups, and industry associations will be necessary to craft a successful approach toward eliminating potential appraisal bias. For a more detailed discussion of the lender’s role and limitations in the existing appraisal process, please see Appraisal Values and Lender Liability: Art, Science, or Gamble?

 

Agencies Raise Appraisal Threshold Exemption

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A&B ABstract:

A new rule from the federal banking regulators reduces the number of residential mortgage transactions for which an appraisal is required.  The rule also incorporates changes to federal appraisal requirements made by the Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018.

On September 27, 2019, the Federal Deposit Insurance Corporation, the Board of Governors of the Federal Reserve System, and the Office of the Comptroller of the Currency (the “Agencies”) issued a much-anticipated Final Rule increasing the threshold below which an appraisal is not required for a residential mortgage transaction from $250,000 to $400,000.  (The announcement parallels a similar increase in the de minimis thresholds for commercial transactions that the Agencies announced in April 2018.)  The rule takes effect October 9, 2019 (the day after publication in the Federal Register), except as otherwise noted below.

Background

The Agencies first promulgated regulations and guidance required by Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act (“FIRREA”) in 1994.  While FIRREA generally requires a regulated lending institution to obtain an appraisal to support any “federally related transaction,” the Agencies have identified more than a dozen categories of appraisals that are exempt.  Until the recent rule adoptions, the $250,000 de minimis threshold had remained unchanged since its creation.

Impact of the Rule

The Final Rule does not impact the requirement that a regulated lending institution obtain an evaluation of the property, consistent with the Agencies’ regulations and the Interagency Appraisal and Evaluation Guidelines, for transactions below the de minimis threshold.  Notably, broker price opinions and automated valuation models (“AVMs”), which FIRREA separately addresses, among the valuation products that do not meet that standard.

In addition, the Final Rule creates a new exemption from the appraisal requirement.  Consistent with the Regulatory Relief Act, effective January 1, 2020, the Agencies will no longer require an appraisal for a rural residential mortgage loan transaction that meet the qualifications set forth in 12 U.S.C. § 3356.

Finally, effective January 1, 2020, the Final Rule requires that appraisals performed in connection with federally related transactions be subject to appropriate review for compliance with the Uniform Standards of Professional Appraisal Practice.

Takeaway:

The increased appraisal exemption thresholds are welcome news for the residential and commercial mortgage markets.  The augmented exemption will be especially helpful to originators of smaller loans (such as second-lien home equity lines of credit) and fix/flip, non-owner-occupied loans that typically have smaller transaction values.  However, lenders should note the requirements for evaluations (still required for exempt transactions) – a topic that is drawing increased attention.

Appraisal Foundation Seeks Comment on Evaluation Concept Paper

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A&B Abstract: With recent and forthcoming changes to federal valuation requirements, the Appraisal Foundation is considering the development of standards for performing evaluations in the USPAP.

The Concept Paper:

On September 3, 2019, the Appraisal Foundation issued a concept paper on the development of standards for performing evaluations.  The concept paper recognizes the current lack of standards for the performance of evaluations under the Uniform Standards of Professional Appraisal Practice (“USPAP”) and federal and state laws.  Additionally, a forthcoming increase in the federal transaction threshold will increase the number of properties for which a federally regulated financial institution may obtain an evaluation, rather than an appraisal, of the collateral.

Requested Comments:

Specifically, the Appraisal Foundation is seeking public comment on seven questions.  These include whether the Appraisal Standards Board (“ASB,” which promulgates the USPAP) should: (1)  set minimum standards for evaluations; and (2) revise the definition of “appraisal” in the USPAP to differentiate it from an evaluation.  Further, the Appraisal Foundation is seeking comment on whether USPAP reporting standards should be changed to reflect their ability to accommodate the reporting of evaluations.

Comments on the concept paper are due October 11, 2019, and may be submitted to: asbcomments@appraisalfoundation.org.

Appraisal Reform Act of 2019 Would Impact TRID

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A&B Abstract: 

If enacted, the recently introduced Appraisal Reform Act of 2019 would amend RESPA to require the disclosure of the appraisal management fee separate from the appraisal fee on the loan estimate (LE) and closing disclosure (CD).  This could impose an additional burden on lenders and appraisal management companies (AMCs).

 Background

 The LE provides disclosures intended to be helpful to consumers in understanding the mortgage loan transaction.  By contrast, the CD must provide the actual costs of the transaction.  As amended by the Dodd Frank Act, Section 4(c) of RESPA permits the optional disclosure of the appraisal management fee separate from the appraisal fee.  However, it does not require separate itemization on the LE and CD.  HR 3619, the Appraisal Reform Act of 2019, would make such disclosure mandatory.  The measure, which Rep. William Lacy Clay (MO) is sponsoring, was introduced in the House on July 5, 2019 and referred to the House Financial Services Committee on the same date.

Impact on Current Law

AMCs facilitate more than two-thirds of all appraisals, according to estimates.  For closed-end forward mortgage transactions, TRID  requires a creditor to provide the consumer with a good faith estimate of the credit costs and transaction terms no later than the third business day after receiving the application.  For certain unaffiliated charges for which the consumer is not allowed to shop (such as appraisal fees), the creditor must not charge the consumer more than the amount disclosed on the LE unless there is a valid changed circumstance. These are “zero tolerance” fees, meaning that the creditor must reimburse the consumer for the amount by which the actual charge exceeds the amount disclosed on the LE.

For purposes of providing a revised estimate and resetting the tolerance, a “changed circumstance” is:

  • an extraordinary event beyond the control of any interested party or other unexpected event specific to the consumer or transaction;
  • information specific to the consumer or transaction that the creditor relied upon when providing the disclosure and that was inaccurate or changed after the disclosures were provided; or
  • new information specific to the consumer or transaction that the creditor did not rely when providing the disclosure.

Absent a valid changed circumstance, a creditor cannot adjust the amount of the appraisal management fee three days after the application is provided even if it determines that additional work is required.

Takeaway

HR 3919 is worth watching as it would in effect lock in the appraisal management fee at time of application.