HB2608 H GO AM 3-19
Thompson 3192
The Committee on Government Organization moves to amend the
bill on page two, after the enacting clause, by striking out the
remainder of the bill and inserting in lieu thereof the following:
"That §30-38-6, §30-38-7 and §30-38-9 of the Code of West
Virginia, 1931, as amended, be amended and reenacted; that said
code be amended by adding thereto a new article, designated §30-
38A-1, §30-38A-2, §30-38A-3, §30-38A-4, §30-38A-5, §30-38A-6, §30-
38A-7, §30-38A-8, §30-38A-9, §30-38A-10, §30-38A-11, §30-38A-12,
§30-38A-13, §30-38A-14, §30-38A-15, §30-38A-16 and §30-38A-17, all
to read as follows:
ARTICLE 38. THE REAL ESTATE APPRAISER LICENSING AND CERTIFICATION
ACT.
§30-38-6. Board created; appointments, qualifications, terms,
oath, removal of members; quorum; meetings; disqualification
from participation; compensation; records; employing staff.
(a) The West Virginia real estate appraiser licensing and
certification board, which consists of nine members appointed by
the governor with the advice and consent of the Senate, is
continued.
(1) Each member shall be a resident of the state of West Virginia, except the appraisal management company representative is
not required to be a resident of West Virginia.
(2) Four members shall be certified real estate appraisers
having at least five years' experience in appraisal as a principal
line of work immediately preceding their appointment, and shall
remain certified real estate appraisers throughout their terms.
(3) Two members shall have at least five years' experience in
real estate lending as employees of financial institutions.
(4) Three Two members may not be engaged in the practice of
real estate appraisal, real estate brokerage or sales or have any
financial interest in these practices.
(5) One member shall be a representative from an appraisal
management company registered under the provisions of article
thirty-eight-a of this chapter.
_____(6) No member of the board may concurrently be a member of the
West Virginia real estate commission.
(7) Not more than two appraiser members may be appointed from
each congressional district.
(b) Members will be appointed for three-year terms, which are
staggered in accordance with the initial appointments under prior
enactment of this act.
(1) No member may serve for more than three consecutive terms.
(2) Before entering upon the performance of his or her duties, each member shall subscribe to the oath required by section five,
article four of the constitution of this state.
(3) The governor shall, within sixty days following the
occurrence of a vacancy on the board, fill the vacancy by
appointing a person who meets the requirements of this section for
the unexpired term.
(4) Any member may be removed by the governor in case of
incompetency, neglect of duty, gross immorality or malfeasance in
office.
(c) The board shall elect a chairman.
(d) A majority of the members of the board constitutes a
quorum.
(d) (e) The board shall meet at least once in each calendar
quarter on a date fixed by the board.
(1) The board may, upon its own motion, or shall upon the
written request of three members of the board, call additional
meetings of the board upon at least twenty-four hours' notice.
(2) No member shall may participate in a proceeding before the
board to which a corporation, partnership or unincorporated
association is a party, and of which he or she is or was at any
time in the preceding twelve months a director, officer, owner,
partner, employee, member or stockholder.
(3) A member may disqualify himself or herself from participation in a proceeding for any other cause the member
considers sufficient.
(e) (f) The appointed members will receive compensation and
expense reimbursement in accordance with the provisions of section
eleven, article one of this chapter.
(f) (g) The board may employ staff as necessary to perform the
functions of the board, to be paid out of the board fund created by
the provisions of this article. Persons employed by any real estate
agent, broker, appraiser or lender, or by any partnership,
corporation, association or group engaged in any real estate
business, may not be employed by the board.
§30-38-7. General powers and duties.
The board shall:
(a) Define by rule the type of educational experience,
appraisal experience and equivalent experience that will meet the
statutory requirements of this article;
(b) Establish examination specifications as prescribed herein
and provide for appropriate examinations;
(c) Establish registration requirements and procedures for
appraisal management companies under the provisions of article
thirty-eight-a of this chapter;
_____(c) (d) Approve or disapprove applications for certification
and licensure;
(e) Approve or disapprove applications for registration under
the provisions of article thirty-eight-a of this chapter;
_____(d) (f) Define by rule continuing education requirements for
the renewal of certifications and licenses;
(e) (g) Censure, suspend or revoke licenses and certification
as provided in this article;
(h) Suspend or revoke registrations under the provisions of
article thirty-eight-a of this chapter;
_____(f) (i) Hold meetings, hearings and examinations;
(g) (j) Establish procedures for submitting, approving and
disapproving applications;
(h) (k) Maintain an accurate registry of the names, and
addresses and contact information of all persons certified or
issued a license to practice under this article;
(l) Maintain an accurate registry of the names, addresses and
contact information of all persons and firms registered under the
provisions of article thirty-eight-a of this chapter;
_____(i) (m) Maintain accurate records on applicants and licensed
or certified real estate appraisers;
(n) Maintain accurate records on applicants under the
provisions of article thirty-eight-a of this chapter;
_____(j) (o) Issue to each licensed or certified real estate
appraiser a pocket card with the appraiser's name and license or certification number. Pocket cards are the property of the State
of West Virginia and, upon suspension or revocation of the license
to practice pursuant to this article, will be returned immediately
to the board;
(p) Issue registration numbers to registrants under the
provisions of article thirty-eight-a of this chapter;
_____(k) (q) Deposit all fees collected by the board to the credit
of the West Virginia appraiser licensing and certification board
fund established in the office of the State Treasurer. The board
shall disburse moneys from the account to pay the cost of board
operation. Disbursements from the account may not exceed the
moneys credited to it;
(l) (r) Keep records and make reports as required by article
one of this chapter; and
(m) (s) Perform any other functions and duties necessary to
carry out the provisions of this article and article thirty-eight-a
of this chapter.
§30-38-9. Rulemaking.
(a) The board may propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code, to provide for:
(1) Licensure and certification requirements, including
requirements for applications, examinations, reciprocity, temporary permits, apprentice permits and reinstatement;
(2) Registration requirements, including delinquent and
expired registrations, for appraisal management companies under the
provisions of article thirty-eight-a of this chapter;
_____(2) (3) Fees for licenses, renewals of licenses and other
services provided by the board;
(4) A fee schedule for registrations of appraisal management
companies under the provisions of article thirty-eight-a of this
chapter;
_____(5) Surety bond requirements for registrations of appraisal
management companies under the provisions of article thirty-eight-a
of this chapter;
_____(6) Requirements and procedures for appraisal management
companies to maintain records under the provisions of article
thirty-eight-a of this chapter;
_____(3) (7) Experience, education and continuing education
requirements and approval of courses; and
(4) (8) Any other purpose to carry out the requirements of
this article and article thirty-eight-a of this chapter.
(b) The rule governing appraiser qualifications must include
requirements which meet or exceed the education, experience and
examination requirements issued or endorsed by the appraisal
qualifications board of the appraisal foundation.
(c) Any rules in effect as of the passage of this article on
the effective date of the reenactment of this section during the
regular session of the legislature in 2013 will remain in effect
until amended, modified, repealed or replaced, except that
references to provisions of former enactments of this act are
interpreted to mean provisions of this article.
ARTICLE 38A. APPRAISAL MANAGEMENT COMPANIES REGISTRATION ACT.
§30-38A-1. Unlawful acts.
_____(a) Commencing July 1,2014, it is unlawful for any person or
firm to perform or offer to perform appraisal management services,
or act as an appraisal management company within this state without
a registration issued by the West Virginia Real Estate Appraiser
Licensing and Certification Board under the provisions of this
article.
_____(b) Commencing July 1, 2014, it is unlawful for any person or
firm not registered under the provisions of this article to
advertise or use a title or description conveying the impression
that the person or firm is registered to perform appraisal
management services or registered to act as an appraisal management
company within this state.
§30-38A-2. Applicable law.
_____Appraisal management companies and appraisal management
services covered under the provisions of this article are subject to the requirements set forth in this article and the rules
promulgated hereunder, and the provisions of article one and
article thirty-eight of this chapter.
§30-38A-3. Definitions.
_____As used in this article, the following words and terms have
the following meanings, unless the context clearly indicates
otherwise:
_____(a) "Applicant" means a person or firm making an application
for registration under the provisions of this article.
_____(b) "Appraisal" means an analysis, opinion or conclusion
prepared by a real estate appraiser relating to the nature,
quality, value or utility of specified interests in, or aspects of,
identified real estate or identified real property. An appraisal
may be classified by the nature of the assignment as a valuation
appraisal, an analysis assignment or a review assignment.
_____(c) "Appraisal Management Company" means a person or firm that
performs or provides appraisal management services, directly or
indirectly, through the use of software products or online, or by
any means of communication.
_____(d) "Appraisal management services" means the business of
managing the process of having an appraisal performed for
compensation or pecuniary gain, including but not limited to any of
the following actions:
_____(1) Conducting business directly or indirectly by telephone,
electronically, mail or in person;
_____(2) Providing related administrative and clerical duties;
_____(3) Recruiting, selecting or retaining appraisers;
_____(4) Verifying qualifications of appraisers;
_____(5) Establishing and administering an appraiser panel;
(6) Receiving appraisal orders from clients;
(7) Contracting and negotiating fees with appraisers to
perform appraisal services;
_____(8) Receiving appraisals from the appraiser and submitting
completed appraisals to clients;
_____(9) Tracking and determining the status of orders for
appraisals;
_____(10) Reviewing, verifying and conducting quality control of a
completed appraisal;
_____(11) Collecting fees from the clients; and
_____(12) Compensating appraisers for appraisal services rendered.
_____(e) "Appraisal review" means the act of developing and
communicating an opinion about the quality of another appraiser's
work that was performed as part of an appraiser assignment. The
review does not include:
_____(1) An examination of an appraisal for grammatical,
typographical or other similar errors that do not make a substantive valuation change; or
_____(2) A general examination for compliance including regulatory
and/or client requirements as specified in the agreement process
that do not communicate an opinion as to the valuation conclusion.
_____(f) "Appraisal services" means the practice of developing an
opinion of the value of real estate in conformity with the minimum
USPAP standards.
_____(g) "Appraiser" means a person licensed or certified, under
the provisions of article thirty-eight of this chapter, to perform
an appraisal.
_____(h) "Appraiser panel" means a group of appraisers that perform
appraisals for an appraisal management company as independent
contractors.
_____(i) "Automated valuation model (AVM)" means a mathematically
based computer software program that produces an estimate of market
value based on market analysis of location, market conditions, and
real estate characteristics from information that was previously
and separately collected.
_____(j) "Board" means the West Virginia Real Estate Appraiser
Licensing and Certification Board established under the provisions
of article thirty-eight of this chapter.
_____(k) "Client" means a person or firm that contracts or enters
into an agreement with an appraisal management company for the performance of an appraisal.
_____(l) "Controlling person" means a person authorized by an
appraisal management company to contract or enter into agreements
with clients and independent appraisers for the performance of
appraisal services and who has the power to manage the appraisal
management company.
_____(m) "Firm" means a corporation, limited liability company,
partnership, sole proprietorship or any other business entity.
_____(n) "Registrant" means a person or firm holding a registration
issued by the board under the provisions of this article.
_____(o) "Registration" means a registration issued by the board
under the provisions of this article.
_____(p) "State" means the State of West Virginia.
_____(q) "USPAP" means the Uniform Standards of Professional
Appraisal Practice.
§30-38A-4. Registration requirements.
_____(a) A person or firm performing or offering to perform
appraisal management services or acting as an appraisal management
company within this state shall be registered with the board by
July 1, 2014.
_____(b) A firm applying for a registration may not be more than
ten percent owned, directly or indirectly, by:
_____(1) A person who has had a license or certificate to act as an appraiser refused, denied, canceled or revoked in this state or any
other jurisdiction, unless the license or certificate was
subsequently granted or reinstated; or
_____(2) A firm that is owned by a person who has had a license or
certificate to act as an appraiser refused, denied, canceled,
revoked or surrendered in this state or any other jurisdiction,
unless the license or certificate was subsequently granted or
reinstated.
_____(c) The board may issue a registration to perform appraisal
management services or act as an appraisal management company to a
person or firm that:
_____(1) Makes written application to the board as set out in
section six of this article;
_____(2) Submits certifications as set out in section seven of this
article;
_____(3) Submits national and state criminal background checks as
set out in section eight of this article;
_____(4) Posts a surety bond as set out in section nine of this
article;
_____(5) Pays the applicable fees as set out in section ten of this
article;
_____(6) Has a designated controlling person as set out in section
eleven of this article; and
_____(7) Meets any other requirement set by the board.
_____(d) The registrations issued under the provisions of this
article shall be renewed annually on July 1.
_____(e) Registrations not renewed in a timely manner are
delinquent. To reinstate a delinquent registration, the registrant
must pay a monthly penalty, as set by the board.
_____(f) A registration that has been delinquent for more than
three months shall be considered expired and a new application for
registration is required.
_____(g) The board shall issue a registration number to each
appraisal management company registered in this state.
_____(h) The board shall keep a list of appraisal management
company registered in this state and publish the list on its
website.
§30-38A-5. Exemptions.
_____
This article does not apply to:
_____(a) A financial institution,including a department or unit
within an institution that is regulated by an agency of this state
or the United States government; or
_____(b) An appraisal management company that is a subsidiary
wholly owned and controlled by a financial institution regulated by
a federal financial institution regulatory agency.
§30-38A-6. Written application requirements.
_____(a) The written application shall be submitted on a form
prescribed by the board and shall include:
_____(1) The name, the street and mailing address and the contact
information, including telephone number and e-mail address, of the
person or firm seeking registration;
_____(2) The name, the street and mailing address and the contact
information, including telephone number and e-mail address, of each
owner of more than ten percent of the firm seeking registration;
_____(3) The name, the street and mailing address and the contact
information, including telephone number and e-mail address, of the
controlling person of the firm seeking registration; and
_____(4) (A) If the applicant is a domestic firm, the designation
of an agent for service of process; or
_____(B) If the applicant is a foreign firm, documentation that the
foreign firm is authorized to do business in West Virginia and that
an agent for service of process has been designated and the
following has been submitted:
_____(i) A copy of the filing with the Secretary of State's Office
appointing an agent for service of process; and
_____(ii) A certificate of authority issued by the Secretary of
State.
_____(b) The board shall maintain a list of all applicants for
registration that includes the information in the written application.
§30-38A-7. Certification requirements.
_____(a) The certification for registration shall be in writing, on
a form prescribed by the board and signed by the applicant or
controlling person. The certification shall include statements
that the applicant:
_____(1) Has a process in place to verify that any person used as
an appraiser or added to the appraiser panel of the applicant is a
licensed or certified appraiser in good standing in West Virginia;
_____(2) Has set requirements to verify that appraisers are
geographically competent and can perform the appraisals assigned;
_____(3) Has set procedures for an appraiser, licensed or certified
in this state or in any state with a minimum of the same
certification level as the appraiser who performed the appraisal,
to review the work of the appraisers performing appraisals for the
applicant to verify that the appraisals are being conducted in
accordance with the minimum USPAP standards;
_____(4) Will require appraisals to be conducted independently and
free from inappropriate influence and coercion as required by the
appraisal independence standards established under Section 129E of
the Truth in Lending Act and the rules and regulations issued
pursuant to the Act, including the requirement that appraisers be
compensated at a customary and reasonable rate when the appraisal management company is providing services for a consumer credit
transaction secured by the principal dwelling of a consumer;
_____(5) Maintains a detailed record of each request for appraisal
it receives from a client and the appraiser that performs the
appraisal; and
_____(6) Has submitted any other information required by the board.
_____(b) The applicant, each owner of more than ten percent and any
controlling person shall submit a written verification, on a form
prescribed by the board, that includes statements that:
_____(1) The written application and verification for registration
contain no false or misleading statements;
_____(2) The applicant has complied with the requirements of this
article;
_____(3) The applicant, each owner of more than ten percent, and
the controlling person of the firm seeking registration has not
pleaded guilty or nolo contendere to or been convicted of a felony;
_____(4) Within the past ten years, the applicant, each owner of
more than ten percent, and the controlling person of the firm
seeking registration has not pleaded guilty or nolo contendere to
or been convicted of:
_____(A) A misdemeanor involving mortgage lending or real estate
appraisals; or
_____(B) An offense involving breach of trust or fraudulent or dishonest dealing;
_____(5) The applicant, each owner and the controlling person of
the firm seeking registration are of good character and reputation
and that none of them has had a license or certificate to act as an
appraiser refused, denied, canceled, revoked or surrendered in this
state or any other jurisdiction, and the license or certification
was not subsequently granted or reinstated;
_____(6) The applicant, each owner and the controlling person of
the firm seeking registration are not permanently or temporarily
enjoined by a court of competent jurisdiction from engaging in or
continuing any conduct or practice involving appraisals, appraisal
management services or operating an appraisal management company;
_____(7) The applicant, each owner of more than ten percent, and
the controlling person of the firm seeking registration are not the
subject of an order of the board or any other jurisdiction's agency
that regulates appraisal management companies that denied,
suspended or revoked the applicant's or firm's privilege to operate
as an appraisal management company;
_____(8) The applicant, each owner of more than ten percent, and
the controlling person of the firm seeking registration have not
acted as an appraisal management company while not being properly
registered by the board; and
_____(9) Set forth any other requirements of the board.
§30-38A-8. Background check requirements.
_____(a) Upon application, the applicant, each owner of more than
ten percent, and the controlling person of the firm seeking
registration shall
submit to a state and national criminal history
record check, as set forth in this section.
_____(1)
This requirement is found not to be against public policy.
_____(2) The criminal history record check shall be based on
fingerprints submitted to the West Virginia State Police or its
assigned agent for forwarding to the Federal Bureau of
Investigation.
_____(3) The applicant shall meet all requirements necessary to
accomplish the state and national criminal history record check,
including:
_____(A) Submitting fingerprints for the purposes set forth in this
subsection; and
_____(B) Authorizing the board, the West Virginia State Police and
the Federal Bureau of Investigation to use all records submitted
and produced for the purpose of screening the applicant for a
license.
_____(b) The results of the state and national criminal history
record check may not be released to or by a private entity except:
_____(1) To the individual who is the subject of the criminal
history record check;
_____(2) With the written authorization of the individual who is
the subject of the criminal history record check;
or
_____(3) Pursuant to a court order.
_____(c) The criminal history record check and related records are
not public records for the purposes of chapter twenty-nine-b of
this code.
_____(d) The applicant shall ensure that the criminal history
record check is completed as soon as possible after the date of the
original application for registration.
_____(e) The applicant shall pay the actual costs of the
fingerprinting and criminal history record check.
§30-38A-9. Surety bond requirements and claims.
_____(a) Each applicant shall post and maintain a surety bond with
the board. The aggregate liability of the surety bond may not
exceed the principal sum of the surety bond.
_____(b) The surety bond shall:
_____(1) Be established by the board through rules;
_____(2) Not exceed $100,000;
_____(3) Be in the form prescribed by the board;
_____(4) Be issued by an surety company authorized to do business
in West Virginia; and
_____(5) Accrue to the state for the benefit of any claimant
against the registrant to secure the faithful performance of the registrant's obligations.
_____(c) The board may bring suit on behalf of the party having a
claim against the registrant.
_____(d) Consumer claims shall be given priority in recovering from
the surety bond.
_____(e) Claimants may make claim under the bond for up to one year
after the applicant ceases doing business in West Virginia.
_____(f) An appropriate deposit of cash or security may be accepted
by the board in lieu of the required bond, as determined by the
board through legislative rule.
§30-38A-10. Fee requirements.
_____The fees assessed by the board, as established by legislative
rule, shall include the annual fee for appraisal management
companies to be included in the national registry maintained by the
Appraisal Subcommittee of the Federal Financial Institutions
Examination Council.
§30-38A-11. Controlling person requirements.
_____(a) An appraisal management company shall have a designated
controlling person who will ensure compliance with this article and
will be the main contact for all communication between the board
and the appraisal management company.
_____(b) The controlling person shall:
_____(1) Be of good character and reputation;
_____(2) Submit to national and state criminal background checks as
set out in section eight of this article;
_____(3) Never have had a license or certificate to act as an
appraiser refused, denied, canceled, revoked or surrendered in this
state or any other jurisdiction and not subsequently reinstated;
_____(4) Never have been a part of a firm that was permanently or
temporarily enjoined by a court of competent jurisdiction from
engaging in or continuing any conduct or practice involving
appraisals, appraisal management services or operating an appraisal
management company; and
_____(5) Never have been the subject of an order of the board or
any other jurisdiction's appraisal management company regulatory
agency that denied or revoked the applicant's or firm's privilege
to operate as an appraisal management company.
§30-38A-12. Requirements for removal from an appraiser panel.
_____(a) Except within sixty days from the date an appraiser is
first added to the appraiser panel of an appraisal management
company, an appraisal management company may only remove an
appraiser from an appraiser panel or refuse to assign appraisals to
an appraiser after providing the appraiser twenty days prior
written notice stating the reasons for the removal or refusal and
providing an opportunity for the appraiser to be heard.
_____(b) An appraiser who is removed from an appraiser panel or refused appraisal assignments for an alleged act or omission that
would constitute grounds for disciplinary action under the
provisions of section twelve, article thirty-eight of this code, a
violation of the USPAP or a violation of state law or legislative
rule may file a complaint with the board for a review of the
appraisal management company's decision.
_____(c) The board's review under this subsection is limited to
determining whether:
_____(1) The appraisal management company has complied with
subsection (a) of this section; and
_____(2) The appraiser has engaged in an act or omission that would
constitute grounds for disciplinary action under the provisions of
section twelve, article thirty-eight of this code, or has committed
a violation of the USPAP or a violation of state law or legislative
rule.
_____(d) The board shall hold a hearing on the complaint within a
reasonable time, not exceeding one year after the complaint was
filed.
_____(e) If the board determines after the hearing that an
appraisal management company acted improperly then the board shall
order the appraisal management company to restore the appraiser to
the appraiser panel or assign appraisals to the appraiser.
_____(f) After the board's order, an appraisal management company may not:
_____(1) Reduce the number of appraisals given to the appraiser; or
_____(2) Penalize the appraiser in any other manner.
§30-38A-13. Duties of appraisal management companies.
_____(a) Each appraisal management company shall:
_____(1) Verify that an appraiser receiving work or being placed on
an appraiser panel is:
_____(A) Professionally and geographically competent;
_____(B) Competent to perform the appraisal service being assigned
to the appraiser;
_____(C) Licensed or certified under the provisions of article
thirty-eight of this chapter; and
_____(D) In good standing in this state;
_____(2) Designate a controlling person responsible for ensuring
compliance with this article, including filing with the board the
following:
_____(A) The name of the controlling person;
_____(B) The contact information for the controlling person;
_____(C) A verified acceptance of responsibility from the
controlling person; and
_____(D) An updated registration form identifying the current
controlling person submitted within ten business days, when there
is a change of the controlling person;
_____(3) Maintain complete detailed records of requests for
appraisals from clients, including:
_____(A) The type of appraisal requested;
_____(B) The name and license or certification number of the
appraiser to whom the appraisal was referred;
_____(C) The fees received from the client; and
_____(D) The fees paid to the appraiser or any third party for
services performed;
_____(4) Ensure that appraisal services are provided in an
independent manner, free from inappropriate influence and coercion,
as required by appraisal independence standards established under
Section 129E of the Truth in Lending Act and the rules and
regulations issued pursuant to the Act, including the requirement
that fee appraisers be compensated at a customary and reasonable
rate when the appraisal management company is providing services
for a consumer credit transaction secured by the principal dwelling
of a consumer;
_____(5) Except in cases of breach of contract or substandard
performance, pay an independent appraiser for the completion of an
appraisal within forty-five days after the appraiser provides the
completed appraisal to the appraisal management company, unless
otherwise agreed to by the parties;
_____(6) Disclose its registration number on all engagement documentation with appraisers;
_____(7) Disclose to its clients the fees paid:
_____(A) For appraisal management services; and
_____(B) To the appraiser for the completion of an appraisal
assignment;
_____(8) Inform the board, when it has a reasonable basis to
believe, that an appraiser has:
_____(A) Failed to comply with USPAP and the failure to comply is
likely to significantly affect the opinion of value;
_____(B) Violated applicable laws or rules; or
_____(C) Engaged in unethical or unprofessional conduct;
_____(9) Keep all records, including, but not limited to,
appraisals ordered by the appraisal management company, for a
minimum of five years after an appraisal is completed or two years
after final disposition of a judicial proceeding related to the
assignment, whichever period expires later; and
_____(10) Maintain a registered agent for service of process and
provide the board with the same information for the agent that is
provided to the Secretary of State.
_____(b) The board may inspect the records of appraisal management
companies at any time without prior notice.
_____(c) A sole proprietor of an appraisal management company is
considered the controlling person.
_____(d) If information on a disclosure becomes inaccurate for any
reason, then a revised or amended disclosure shall be provided by
the end of the next business day after the change. The revised or
amended disclosure shall be clearly marked as revised or amended
and contain sufficient information for the client to identify the
original disclosure referenced.
_____(e) The provisions of this section do not exempt a registrant
from any other reporting requirements contained in any federal or
state law.
§30-38A-14. Unprofessional conduct.
_____An appraisal management company commits unprofessional conduct
if it:
_____(1) Requires an appraiser to modify an aspect of an appraisal
which modification is not related to substandard performance or
noncompliance with the terms of a contract or agreement;
_____(2) Requires an appraiser to prepare an appraisal when the
appraiser believes, in his or her own professional judgment and
notifies the appraisal management company, that the appraiser does
not have the necessary expertise for the specific geographic area
or is otherwise not competent to perform the appraisal;
_____(3) Requires an appraiser to prepare an appraisal under a
certain time frame that the appraiser believes, in his or her own
professional judgment and notifies the appraisal management company, that the appraiser does not have the necessary time to
meet all the necessary and relevant legal and professional
obligations;
_____(4) Prohibits or inhibits communication between an appraiser
and any other person from whom the appraiser, in the appraiser's
own professional judgment, believes information would be relevant;
_____(5) Requests an appraiser to do anything that does not comply
with:
_____(A) The USPAP; or
_____(B) The requests of the client; or
_____(6) Makes any portion of the appraiser's fee or the appraisal
management company's fee contingent on a favorable outcome,
including:
_____(A) A loan closing; or
_____(B) An appraisal for a specific dollar amount.
§30-38A-15. Prohibited acts.
_____(a) An appraisal management company or any person acting for
an appraisal management company as a controlling person, owner,
director, officer, agent, employee or independent contractor may
not:
_____(1) Improperly influence or attempt to improperly influence
the development, reporting, result or review of an appraisal
through:
_____(A) Intimidation, inducement, coercion, extortion, collusion,
bribery, compensation, blackmail, threat of exclusion from future
appraisal work or any other means that unduly influences or
pressures the appraiser;
_____(B) Withholding payment to an appraiser for appraisal
services; or
_____(C) Expressly or impliedly promise future business, promotions
or increased compensation to an appraiser;
_____(2) Knowingly employ a person to a position of responsibility
who has had a license or certificate to act as an appraiser
refused, denied, canceled, revoked or surrendered in this state or
any other jurisdiction, and not subsequently granted or reinstated;
_____(3) Knowingly enter into a contract with a person who has had
a license or certificate to act as an appraiser refused, denied,
canceled, revoked or surrendered in this state or any other
jurisdiction, and not subsequently granted or reinstated;
_____(4) Knowingly enter into a contract, agreement or other
business relationship for the purpose of obtaining real estate
appraisal services with a firm that employs or contracts with a
person who has had a license or certificate to act as an appraiser
refused, denied, canceled, revoked or surrendered in this state or
any other jurisdiction, and not subsequently granted or reinstated;
_____(5) Knowingly fail to separate and disclose any fees charged to a client by the appraisal management company for an appraisal by
an appraiser from fees charged to a client by the appraisal
management company for appraisal management services;
_____(6) Prohibit an appraiser from stating, in a submitted
appraisal, the fee paid by the appraisal management company to the
appraiser for the appraisal;
_____(7) Request, allow or require an appraiser to collect any
portion of the fee, including the appraisal fee, charged by the
appraisal management company to the client;
_____(8) Require an appraiser to provide the registrant with the
appraiser's signature or seal in any form;
_____(9) Alter, amend or change an appraisal submitted by an
appraiser;
_____(10) Remove an appraiser's signature or seal from an
appraisal;
_____(11) Add information to or remove information from an
appraisal with the intent to change the conclusion of the
appraisal;
_____(12) Remove an appraiser from an appraiser panel without
twenty days prior written notice to the appraiser and an
opportunity for the appraiser to be heard;
_____(13) Enter into an agreement or contract for the performance
of appraisal services with an appraiser who is not in good standing with the board;
_____(14) Request or require an appraiser to provide an estimated,
predetermined or desired valuation in an appraisal;
_____(15) Request or require an appraiser to provide estimated
values or comparable sales at any time prior to the appraiser
completing an appraisal;
_____(16) Condition a request for an appraisal or the payment of an
appraisal fee on:
_____(A) An opinion, conclusion or valuation reached; or
_____(B) A preliminary estimate or opinion requested from an
appraiser;
_____(17) Provide to an appraiser an anticipated, estimated,
encouraged or desired value for an appraisal or a proposed or
targeted amount to be loaned or borrowed, except that a copy of the
sales contract for the purchase transaction may be provided;
_____(18) Require an appraiser to indemnify or hold harmless an
appraisal management company for any liability, damage, losses or
claims arising out of the services provided by the appraisal
management company;
_____(19) Have a direct or indirect interest, financial or
otherwise, in the property or transaction involving the appraisal;
_____(20) Provide to an appraiser or a person related to the
appraiser stock or other financial or nonfinancial benefits;
_____(21) Obtain, use or pay for a second or subsequent appraisal
or order an automated valuation model, unless:
_____(A) There is a reasonable basis to believe that the initial
appraisal was flawed and the basis is clearly and appropriately
noted in the file;
_____(B) The second or subsequent appraisal, or automated valuation
model is done under a bona fide prefunding or post-funding
appraisal review or quality control process;
_____(C) The second appraisal is required by law; or
_____(D) The second or subsequent appraisal or automated valuation
model is ordered by a client; or
_____(22) Commit an act or practice that impairs or attempts to
impair an appraiser's independence, objectivity or impartiality.
_____(b) This section does not prohibit an appraisal management
company from requesting that an appraiser:
_____(1) Provide additional information about the basis for a
valuation;
_____(2) Correct objective factual errors in an appraisal;
_____(3) Provide further detail, substantiation or explanation for
the appraiser's conclusion; or
_____(4) Consider additional appropriate property information,
including the consideration of additional comparable properties to
make or support an appraisal.
§30-38A-16. Disciplinary action.
_____The board may deny, revoke or refuse to issue or renew the
registration of an appraisal management company or may restrict or
limit the activities of an appraisal management company or of a
person or firm that owns an interest in or participates in the
business of an appraisal management company for the following
reasons:
_____(1) A person or firm acted as an appraisal management company
or performed appraisal management services without being properly
registered with the board;
_____(2) A person or firm did not perform the duties set out in
this article;
_____(3) A person or firm engaged in unprofessional conduct as set
out in this article;
_____(4) A person or firm engaged in a prohibited act set out in
this article;
_____(5) The application for registration contained false or
misleading information;
_____(6) A person or firm fraudulently or deceptively obtains or
attempts to obtain a registration;
_____(7) A person or firm fraudulently or deceptively used a
registration;
_____(8) A person or firm violated the provisions of this article, this code, or the board's rules;
_____(9) A person or firm was found guilty of a felony or pleaded
guilty or nolo contendere to a felony;
_____(10) Within the past ten years, a person or firm was found
guilty of or pleaded guilty or nolo contendere to a misdemeanor
involving:
_____(A) Mortgage lending;
_____(B) Appraisals;
_____(C) Breach of trust; or
_____(D) Fraudulent or dishonest dealing;
_____(11) A person or firm is permanently or temporarily enjoined
by a court of competent jurisdiction from engaging in or continuing
any conduct or practice involving appraisal management services or
operating an appraisal management company;
_____(12) A person or firm is the subject of an order of the board
or any other jurisdiction's appraisal management company regulatory
agency that denied, revoked or restricted a person's or firm's
privilege to operate as an appraisal management company;
_____(13) A person or firm failed to pay the applicable fees; or
_____(14) For any other finding by the board.
§30-38A-17. Notice and hearing procedures.
_____(a) The board, on its own motion or upon receipt of a written
complaint, may investigate an appraisal management company, a person or firm associated with an appraisal management company, and
a person or firm performing appraisal management services.
_____(b) If the board determines after the investigation there are
grounds for disciplinary action, the board may hold a hearing after
giving thirty days' prior notice.
_____(c) The board has the same powers set out in article thirty-
eight of this chapter.
_____(d) After notice and a hearing, the board may:
_____(1) Deny, revoke or refuse to issue or renew the registration
of an appraisal management company or restrict or limit the
activities of an appraisal management company or of a person or
firm that owns an interest in or participates in the business of an
appraisal management company;
_____(2) Impose a fine not to exceed $25,000 for each violation; or
_____(3) Take other disciplinary action as established by the board
by rule.
_____(e) The board may seek injunctive relief in the Kanawha County
Circuit Court to prevent a person or firm from violating the
provisions of this article or the rules promulgated hereunder. The
circuit court may grant a temporary or permanent injunction."