| (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 from any
person, if necessary, to determine how to proceed with the complaint.
(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 after receipt of the response from Respondent to determine
whether sufficient evidence of a potential violation of the Act, Board
rules, or the USPAP exists to pursue investigation and possible formal
disciplinary action. If the staff determines that there is no jurisdiction,
no violation exists, there is insufficient evidence to prove a violation,
or the complaint warrants dismissal, including contingent dismissal,
under subsection (k) of this section, the complaint shall be dismissed
with no further processing.
(h) A formal complaint will be opened and investigated
by a staff investigator or peer investigative committee, as appropriate,
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 shall prepare a report
detailing its findings on a form approved by the Board. Reports prepared
by a peer investigative committee shall be reviewed by the Standards
and Enforcement Services Division.
(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
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 was issued by the Board
more than seven years before the current alleged violation occurred;
(B) Prior discipline is defined as any sanction (including
administrative penalty) received under a Board final or agreed order;
(C) A violation refers to a violation of any provision
of the Act, Board rules or USPAP;
(D) "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 license holder's honesty, integrity, or trustworthiness
to the Board, the license holder's clients, or intended users of the
appraisal service provided;
(E) "Serious deficiencies" is defined as violations
of the Act, Board rules or USPAP that:
(i) impact the credibility of the appraisal assignment
results, the assignment results themselves or do impact the license
holder's honesty, trustworthiness or integrity to the Board, the license
holder's clients, or intended users of the appraisal service provided;
or
(ii) are deficiencies done with knowledge, deliberate
or willful disregard, or gross negligence that would otherwise be
classified as "minor deficiencies";
(F) "Remedial measures" include, but are not limited
to, training, mentorship, education, reexamination, or any combination
thereof; and
(G) The terms of a contingent dismissal agreement will
be in writing and agreed to by all parties. If the Respondent completes
all remedial measures required in the agreement within the 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 prior
discipline, including:
(i) Whether prior discipline concerned the same or
similar violations or facts;
(ii) The nature of the disciplinary sanctions previously
imposed; and
(iii) The length of time since the prior 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; or
(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 extent or 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 level of experience Respondent had in the appraisal
profession at the time of the violations, including:
Cont'd... |
