(a) Receipt of a Complaint Intake Form by the Board
does not constitute the filing of a formal complaint by the Board
against the AMC named on the Complaint Intake Form. Upon receipt of
a signed Complaint Intake Form, staff will:
(1) assign the complaint a case number in the complaint
tracking system; and
(2) send written acknowledgement of receipt to the
complainant.
(b) Priority of complaint investigations. The Board
prioritizes and investigates complaints based on the risk of harm
each complaint poses to the public. Complaints that pose a high risk
of public harm include violations of the AMC Act or Board rules that:
(1) evidence serious deficiencies, including:
(A) Fraud;
(B) Identity theft;
(C) Unlicensed activity;
(D) Ethical violations;
(E) Violations of appraiser independence; or
(F) Other conduct determined by the Board that poses
a significant risk of public harm; and
(2) were done:
(A) with knowledge;
(B) deliberately;
(C) willfully; or
(D) with gross negligence.
(c) If the staff determines at any time that the complaint
is not within the Board's jurisdiction, or that no violation exists,
the complaint will be dismissed with no further processing. The Board
or the Executive Director may delegate to staff the duty to dismiss
complaints.
(d) A complaint alleging mortgage fraud or in which
mortgage fraud is suspected:
(1) may be investigated covertly; and
(2) will be referred to the appropriate prosecutorial
authorities.
(e) Staff may request additional information necessary
to determine how to proceed with the complaint from any person.
(f) As part of a preliminary investigative review,
a copy of the Complaint Intake Form and all supporting documentation
will be sent to the Respondent unless the complaint qualifies for
covert investigation and the TALCB Division deems covert investigation
appropriate.
(g) The Board will:
(1) protect the complainant's identity to the extent
possible by excluding the complainant's identifying information from
a complaint notice sent to a respondent.
(2) periodically send written notice to the complainant
and each respondent of the status of the complaint until final disposition.
For purposes of this subsection, "periodically" means at least once
every 90 days.
(h) The Respondent must submit a response within 20
days of receiving a copy of the Complaint Intake Form. The 20-day
period may be extended for good cause upon request in writing or by
e-mail. The response must include the following:
(1) A copy of the appraisal report(s), if any, that
is (are) the subject of the complaint;
(2) A copy of the documents or other business records
associated with the appraisal report(s), incident(s), or conduct listed
in the complaint, with the following signed statement attached to
the response: I SWEAR AND AFFIRM THAT EXCEPT AS SPECIFICALLY SET FORTH
HEREIN, THE COPY OF EACH AND EVERY BUSINESS RECORD ACCOMPANYING THIS
RESPONSE IS A TRUE AND CORRECT COPY OF THE ACTUAL BUSINESS RECORD,
AND NOTHING HAS BEEN ADDED TO OR REMOVED FROM THIS BUSINESS RECORD
OR ALTERED. (SIGNATURE OF RESPONDENT);
(3) A narrative response to the complaint, addressing
each and every item in the complaint;
(4) A list of any and all persons known to the Respondent
to have actual knowledge of any of the matters made the subject of
the complaint and, if in the Respondent's possession, contact information;
(5) Any documentation that supports Respondent's position
that was not in the original documentation, as long as it is conspicuously
labeled as additional documentation and kept separate from the original
documentation. The Respondent may also address other matters not raised
in the complaint that the Respondent believes need explanation; and
(6) a signed, dated and completed copy of any questionnaire
sent by Board staff.
(i) Staff will evaluate the complaint within three
months of receipt of the response from Respondent to determine whether
sufficient evidence of a potential violation of the AMC Act or Board
rules exists to pursue investigation and possible formal disciplinary
action. If staff determines there is no jurisdiction, no violation
exists, or there is insufficient evidence to prove a violation, or
the complaint warrants dismissal, including contingent dismissal,
under subsection (m) of this section, the complaint will be dismissed
with no further processing.
(j) A formal complaint will be opened and investigated
by a staff investigator or investigative committee if:
(1) the informal complaint is not dismissed under subsection
(i) of this section; or
(2) staff opens a formal complaint on its own motion.
(k) Written notice that a formal complaint has been
opened will be sent to the Complainant and Respondent.
(l) The staff investigator or investigative committee
assigned to investigate a formal complaint will prepare a report detailing
all findings.
(m) In determining the proper disposition of a formal
complaint pending as of or filed after the effective date of this
subsection, and subject to the maximum penalties authorized under
Chapter 1104, Texas Occupations Code, staff, the administrative law
judge in a contested case hearing and the Board shall consider the
following sanctions guidelines and list of non-exclusive factors as
demonstrated by the evidence in the record of a contested case proceeding.
(1) For the purposes of these sanctions guidelines:
(A) An AMC will not be considered to have had a prior
warning letter, contingent dismissal or discipline if that prior warning
letter, contingent dismissal or discipline occurred more than ten
years ago;
(B) A prior warning letter, contingent dismissal or
discipline given less than ten years ago will not be considered unless
the Board took final action against the AMC before the date of the
incident that led to the subsequent disciplinary action;
(C) Prior discipline is defined as any sanction, including
an administrative penalty, received under a Board final or agreed
order;
(D) A violation refers to a violation of any provision
of the AMC Act or Board rules;
(E) "Minor deficiencies" is defined as violations of
the AMC Act or Board rules which do not call into question the qualification
of the AMC for licensure in Texas;
(F) "Serious deficiencies" is defined as violations
of the Act or Board rules which do call into question the qualification
of the AMC for licensure in Texas;
(G) "Remedial measures" include training, auditing,
or any combination thereof; and
(H) The terms of a contingent dismissal agreement will
be in writing and agreed to by all parties. Staff may dismiss the
complaint with a non-disciplinary warning upon written agreement that
the Respondent will complete all remedial measures within the agreed-upon
timeframe. If the Respondent fails to meet the deadlines in the agreement,
the Respondent's license or certification will be automatically set
to inactive status until the Respondent completes the remedial measures
set forth in the agreement.
(2) List of factors to consider in determining proper
disposition of a formal complaint:
(A) Whether the Respondent has previously received
a warning letter or contingent dismissal, and if so, the similarity
of facts or violations in that previous complaint to the facts or
violations in the instant complaint matter;
(B) Whether the Respondent has previously been disciplined;
(C) If previously disciplined, the nature of the discipline,
including:
(i) Whether it concerned the same or similar violations
or facts;
(ii) The nature of the disciplinary sanctions imposed;
(iii) The length of time since the previous discipline;
(D) The difficulty or complexity of the incident at
issue;
(E) Whether the violations found were of a negligent,
grossly negligent or a knowing or intentional nature;
(F) Whether the violations found involved a single
appraisal or instance of conduct or multiple appraisals or instances
of conduct;
(G) To whom were the appraisal report(s) or the conduct
directed, with greater weight placed upon appraisal report(s) or conduct
directed at:
(i) A financial institution or their agent, contemplating
a lending decision based, in part, on the appraisal report(s) or conduct
at issue;
(ii) The Board;
Cont'd... |