(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) 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 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) will 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
will 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 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.
(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 the AMC Act, Board
rules or USPAP 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 (k) of this section, the complaint will
be dismissed with no further processing.
(h) A formal complaint will be opened and investigated
by a staff investigator or peer investigative committee if:
(1) the informal complaint is not dismissed under subsection
(g) of this section; or
(2) staff opens a formal complaint on its own motion.
(i) Written notice that a formal complaint has been
opened will be sent to the Complainant and Respondent.
(j) The staff investigator or peer investigative committee
assigned to investigate a formal complaint will prepare a report detailing
all findings.
(k) 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, Board rules, or USPAP;
(E) "Minor deficiencies" is defined as violations of
the AMC Act, Board rules, or USPAP 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, Board rules or USPAP 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. 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 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;
(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;
(J) The business operating history of the AMC, including:
(i) The size of the AMC's appraiser panel;
(ii) The length of time Respondent has been licensed
as an AMC in Texas;
(iii) The length of time the AMC has been conducting
business operations, in any jurisdiction;
(iv) The nature and extent of any remedial measures
and sanctions the Respondent had received related to the areas in
which violations were found; and
Cont'd... |