(a) Receipt of a Complaint Intake Form by the board
does not constitute the filing of a formal complaint by the board
against the individual named on the Complaint Intake Form. Upon receipt
of a signed Complaint Intake Form, staff shall:
(1) assign the complaint a case number in the complaint
tracking system; and
(2) send written acknowledgement of receipt to the
complainant.
(b) If the staff determines at any time that the complaint
is not within the board's jurisdiction or that no violation exists,
the complaint shall be dismissed with no further processing. The board
or the commissioner may delegate to staff the duty to dismiss complaints.
(c) A complaint alleging mortgage fraud or in which
mortgage fraud is suspected:
(1) may be investigated covertly; and
(2) shall be referred to the appropriate prosecutorial
authorities.
(d) Staff may request additional information necessary
to determine how to proceed with the complaint from any person.
(e) As part of a preliminary investigative review,
a copy of the Complaint Intake Form and all supporting documentation
shall be sent to the respondent unless the complaint qualifies for
covert investigation and the Standards and Enforcement Services Division
deems covert investigation appropriate.
(f) The respondent shall 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 shall include the following:
(1) a copy of the appraisal report that is the subject
of the complaint;
(2) a copy of the respondent's work file associated
with the appraisal(s) listed in the complaint, with the following
signed statement attached to the work file(s): I SWEAR AND AFFIRM
THAT EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE COPY OF EACH AND
EVERY APPRAISAL WORK FILE ACCOMPANYING THIS RESPONSE IS A TRUE AND
CORRECT COPY OF THE ACTUAL WORK FILE, AND NOTHING HAS BEEN ADDED TO
OR REMOVED FROM THIS WORK FILE OR ALTERED AFTER PLACEMENT IN THE WORK
FILE. (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 work file, as long as it is conspicuously labeled
as non-work file documentation and kept separate from the work file.
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.
(g) 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 TALCB's statutes or
rules, or the Uniform Standards of Professional Appraisal Practice
(USPAP) exists to pursue investigation and possible formal disciplinary
action. If the staff determines that 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 (j) of this section, the complaint shall be dismissed
with no further processing.
(h) If the complaint is not dismissed under subsection
(g) of this section, a formal complaint will be opened and it will
be investigated by a staff investigator or peer investigative committee,
as appropriate. Staff may also open a formal complaint on its own
motion. A written notice that a formal complaint has been opened will
be sent to the complainant and respondent.
(i) The staff investigator or peer investigative committee
assigned to investigate a formal complaint shall prepare a report
detailing its findings on a form approved by the board for that purpose.
Reports prepared by a peer investigative committee shall be reviewed
by the Standards and Enforcement Services Division, which shall determine
the appropriate disposition of the complaint.
(j) 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
Texas Occupations Code, §1103.552, 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) A person 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 seven
(7) years ago;
(B) A prior warning letter, contingent dismissal or
discipline given less than seven years ago will not be considered
unless the board had taken final action against the person before
the date of the appraisal that led to the subsequent disciplinary
action;
(C) Prior discipline is defined as any sanction (including
administrative penalty) received under a board final or agreed order;
(D) A violation refers to a violation of any provision
of the Act, Board Rules or USPAP;
(E) "Minor deficiencies" is defined as violations of
the Act, Board Rules or USPAP which do not impact the credibility
of the appraisal assignment results, the assignment results themselves
and do not impact the appraiser's honesty, trustworthiness or integrity
to the board, the appraiser's clients or intended users of the appraisal
service provided;
(F) "Serious deficiencies" is defined as violations
of the Act, Board Rules or USPAP which do impact the credibility of
the appraisal assignment results, the assignment results themselves
or do impact the appraiser's honesty, trustworthiness or integrity
to the board, the appraiser's clients or intended users of the appraisal
service provided;
(G) "Remedial measures" include, but are not limited
to, training, mentorship, education, reexamination, or any combination
thereof; and
(H) The terms of a contingent dismissal agreement will
be in writing and agreed to by all parties. If respondent completes
all remedial measures required in the agreement within a certain prescribed
period of time, the complaint will be dismissed with a non-disciplinary
warning letter.
(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 appraisal assignment(s)
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/instance of conduct or multiple appraisals/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;
(iii) A matter which is actively being litigated in
a state or federal court or before a regulatory body of a state or
the federal government;
(iv) Another government agency or government sponsored
entity, including, but not limited to, the United States Department
of Veteran's Administration, the United States Department of Housing
and Urban Development, the State of Texas, Fannie Mae, and Freddie
Mac;
(v) A consumer contemplating a real property transaction
involving the consumer's principal residence;
(H) Whether Respondent's violations caused any harm,
including financial harm, and the amount of such harm;
(I) Whether Respondent acknowledged or admitted to
violations and cooperated with the board's investigation prior to
any contested case hearing;
Cont'd... |