BILL ANALYSIS                                                                                                                                                                                                    Ó







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        |Hearing Date:May 2, 2011           |Bill No:SB                         |
        |                                   |6                                  |
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                      SENATE COMMITTEE ON BUSINESS, PROFESSIONS 
                               AND ECONOMIC DEVELOPMENT
                          Senator Curren D. Price, Jr., Chair
                                           

                         Bill No:        SB 6  Author:Calderon
                     As Amended:April 11, 2011          Fiscal:Yes

        
        SUBJECT: Real Estate:  appraisal and valuation. 
        
        SUMMARY: Updates California's Real Estate Law, Appraisal Law, and 
        Civil Code to reflect recent changes enacted at the federal level, 
        pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection 
        Act. 

         NOTE:   This measure was heard in Banking and Financial Institutions 
        Committee on April 6, 2011, and passed out of Committee by a vote of 
        7-0.

        Existing law, the Business and Professions Code:
        

        1) Provides for the licensure and regulation of real estate brokers 
           and real estate salespersons by the Real Estate Commissioner 
           (Commissioner) and makes a willful violation of the Real Estate Act 
           a crime. (Business and Professions Code (BPC) § 10176)


        2) Prohibits the generation of an inaccurate opinion of the value of 
           residential real property in connection with a certain real estate 
           transaction in order to, among other things, acquire a financial or 
           business advantage that directly results from the inaccurate 
           opinion of value. The Commissioner may punish a violator of this 
           provision by suspending or revoking the real estate license. (Id.) 


        3) Provides for the licensure and regulation of real estate appraisers 
           and appraisal management companies and makes a willful violation of 





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           the Real Estate Appraisers' Licensing and Certification Law a 
           crime. (BPC § 11345.4)


        4) Prohibits an appraisal management company from improperly 
           influencing any appraisal by engaging in certain activities.  (Id.)

        
        Existing law, the Civil Code:  Prohibits a person with an interest in 
        a real estate transaction involving an appraisal from improperly 
        influencing or attempting to improperly influence, through coercion, 
        extortion, or bribery, the development, reporting, result, or review 
        of a real estate appraisal sought in connection with a mortgage loan, 
        and specifies that a violation of this provision by a person licensed 
        under a state licensing law also constitutes a violation of that law. 
        (Civil Code § 1090.5) 
        

        This bill:

        1) Prohibits a licensee that provides an opinion of value of real 
           property, which is used as the basis for a mortgage loan 
           origination, refinancing, or modification from having an interest 
           in the property. 
        2) Prohibits a licensee from knowingly or intentionally 
           misrepresenting the value of real property.

        3) Prohibits an appraisal management company from improperly 
           influencing any appraisal through coercion, extortion, inducement, 
           collusion, bribery, intimidation, compensation, or instruction. 

        4) Prohibits certain acts, including, but not limited to, seeking to 
           influence an appraiser to report a minimum or maximum value for 
           specified property, implying to an appraiser that their retention 
           depends on their estimate of the real property value excluding an 
           appraiser from future engagement because they reported a value that 
           does not meet or exceed a certain threshold, and conditioning 
           compensation paid to an appraiser on consummation of the real 
           estate transaction. 

        5) Prohibits a person who prepares an appraisal or performs appraisal 
           management functions in connection with the origination, 
           modification or refinancing of a mortgage loan from having a direct 
           or indirect interest, including financial interest, in the property 
           or the transactions that the person is performing the services for. 






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        6) Clarifies that an appraisal management company is not hindered from 
           asking an appraiser to: (1) consider additional, appropriate 
           property information; (2) provide further detail, substantiation, 
           or explanation for the appraiser's value conclusion; (3) correct 
           errors in an appraisal report; (4) obtain multiple valuations, for 
           purposes of selecting the most reliable valuation; (5) withhold 
           compensation due to breach of contract or substandard performance 
           of services; and (6) provide a copy of the sales contract in 
           connection with a purchase transaction. 

        7) Revises the law to make the prohibition against improper interest 
           in a real estate transaction applicable to a valuation. 

        8) Defines valuation as an estimate of the value of real property in 
           written or electronic form, other than one produced solely by an 
           automated model or system. 

        9) Prohibits specific acts in conjunction with valuation including, 
           but not limited to, seeking to influence a valuation preparer to 
           report a minimum or maximum value for specified property, implying 
           to a valuation preparer that their retention depends on their 
           estimate of the real property value, excluding a valuation preparer 
           from future engagement because they reported a value that does not 
           meet or exceed a certain threshold, and conditioning compensation 
           paid to a valuation preparer on consummation of the real estate 
           transaction.

        
        FISCAL EFFECT:  Unknown.  This bill has been keyed "fiscal" by 
        Legislative Counsel.
        


        COMMENTS:
        
        1. Purpose. This bill is sponsored by the California Subcommittee of 
           the Appraisal Institute.  The Author states that California has had 
           more comprehensive and more protective consumer protection laws 
           than the federal government in the past.  In July 2010, the federal 
           government passed the Dodd-Frank Wall Street Reform and Consumer 
           Protection Act (Dodd-Frank). This bill intends to update 
           California's Real Estate Law, Appraisal Law and the Civil Code in 
           order to reflect these changes by the federal government.  

        2. Residential and Commercial Real Estate Transactions. In a 





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           residential home transaction, the buyer may be represented by a 
           real estate agent or broker; and the seller may be represented by a 
           real estate agent or broker; or the same agent or broker may 
           represent both buyer and seller where there is consent from both 
           parties.  A buyer may also use a mortgage broker, who may or may 
           not represent the buyer or seller in the transaction.  A buyer will 
           almost always seek a mortgage loan from a lender and an appraiser 
           is used to value the home in connection with the mortgage loan.  
           Commercial real estate transactions involve many of the same 
           persons as residential real estate transactions; however, these 
           transactions are usually much more complex in their structure and 
           valuation processes. 
             
        3. Real Estate Brokers and Salespersons. Real estate brokers and real 
           estate salespersons, often called real estate agents, are licensed 
           by the Department of Real Estate under the Real Estate Law.  A real 
           estate broker or salesperson may also act as a mortgage broker in 
           bringing borrowers and mortgage lenders together.  Real Estate Law 
           prohibits deceptive practices and any conduct which constitutes 
           fraud or dishonest dealing.  Currently, the law specifically 
           prohibits the generation of an inaccurate opinion of the value of 
           residential real property in connection with a certain real estate 
           transaction in order to, among other things, acquire a financial or 
           business advantage that directly results from the inaccurate 
           opinion of value.

        4. Appraisal Management Companies. An increasingly common practice has 
           been the use of appraisal management companies (AMC).  An AMC 
           assembles panels of appraisers who are called upon when they 
           receive an order for an appraisal.  The AMCs, in turn, assign the 
           appraisals requested by lenders and brokers to appraisers on their 
           panels.  When the appraisals are completed, the AMCs deliver them 
           to the lenders and brokers who ordered them. 

           The growth of AMCs has been driven, at least in part, by an 
           agreement reached between Fannie Mae, Freddie Mac, and the New York 
           State Attorney General Anthony Cuomo.  This agreement is titled the 
           Home Valuation Code of Conduct (HVCC).  Although never promulgated 
           as a regulation by any federal banking agency, the HVCC became a de 
           facto regulation when Fannie Mae and Freddie Mac announced that, on 
           and after May 1, 2009, they would not purchase or guarantee a 
           mortgage loan entered into by a lender that did not comply with the 
           HVCC.  

           One of the key requirements of the HVCC is appraiser independence.  
           Under the HVCC, lenders and mortgage brokers may not be directly 





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           involved in the selection of an appraiser on a loan in which they 
           are involved; they must use a third party to order their 
           appraisals, or use some other method intended to isolate the 
           process of selecting an appraiser from the persons who are 
           compensated based on whether a loan is approved. 

           The use of the AMC as a third party to order appraisals can be 
           beneficial by removing pressure on an appraiser by insulating the 
           appraiser from the person or entity who orders the appraisal.  
           Typically, the party who orders the appraisal has the most at stake 
           from the appraised value.  However, in practice, the AMC itself is 
           able to impose pressure on the appraisers. SB 237, enacted in 2009, 
           was meant to ensure regulation of AMCs and clarified prohibited 
           acts by AMCs.  This bill is meant to clarify and update those 
           provisions. 
             
        5. The Problem of Inflated Appraisals. In the past, this Committee has 
           heard other bills that were meant to combat the problem of inflated 
           appraisals.  Although it appeared that there was no organization 
           that systematically documented the frequency or severity of 
           appraisal inflation, much anecdotal evidence was given describing 
           specific situations where an inflated appraisal can be requested by 
           one or more parties to a transaction. 

           Inflated appraisals also occur through the practice of predatory 
           appraisals.  A June 2005 report titled Predatory Appraisals: 
           $tealing the American Dream by the National Community Reinvestment 
           Coalition, concluded that problematic appraisal practices are a 
           serious impediment to responsible lending, impede fair housing and 
           equal access to credit, and place homeownership and the safety and 
           soundness of the mortgage marketplace at risk.  According to the 
           report, a "predatory appraisal" occurs when the value of a property 
           is falsely overstated during a new purchase or during the home 
           equity or refinancing process. 

           While appraisers are directly responsible for inflating the 
           figures, lenders, brokers and other members of the industry are the 
           ones pressuring appraisers to provide their desired valuation and 
           to close the deal.  Lenders and brokers have an incentive to 
           inflate property values because they are paid commissions based on 
           the value of the loans they secure.  Additionally, real estate 
           developers and agents are paid profits and commissions based on the 
           sales price of properties.  However, appraisers are only paid on a 
           per appraisal basis. 

           The report also detailed the tactics that lenders and brokers use 





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           to obtain an inflated valuation.  Some apply pressure by 
           withholding payment, threatening not to do business with the 
           appraiser, or even blacklisting him or her altogether unless the 
           appraiser meets the lender's requested value.  They may also demand 
           that appraisers guarantee a predetermined value, ignore 
           deficiencies in the property or simply increase the appraisal if 
           the lender is unsatisfied with it.  Lenders also "shop around" 
           known as value shopping by contracting several appraisers to 
           evaluate one property and then use the highest valuation they find. 
            Although  SB 223  was enacted in 2007 (Machado, Chapter 291) to 
           combat this problem, this bill updates those provisions in order to 
           align California law to the new federal laws.  Also, it provides 
           further clarification on what acts are prohibited by the law.  
           
        6. Dodd-Frank Wall Street Reform and Consumer Protection Act. The 
           Dodd-Frank Act is a federal statute that was signed into law by 
           President Obama in July 2010.  The Dodd-Frank Act was a response to 
           the mortgage crisis in the middle of the last decade.  This act 
           created significant changes to the American financial regulatory 
           environment and affects all Federal financial regulatory agencies 
           and almost every aspect of the nation's financial services 
           industry. 

           Specifically related to this bill are the following provisions of 
           the Dodd-Frank Act which reform the mortgage business. 

              a.     Real property valuations are defined, and those who 
               perform them are protected from inappropriate influence.   In 
               its recently promulgated regulations, the Federal Reserve Board 
               (FRB) recognized that many types of real property valuations, 
               including, but not limited to appraisals, are being utilized in 
               the current housing environment.  To address this observation, 
               the FRB defined the term "real property valuation" and enacted 
               a series of rules designed to ensure that no entity which 
               prepares a real property valuation is inappropriately 
               influenced in connection with their value conclusion

             This measure adopts the FRB's definition of a real property 
               valuation.  In doing so, it broadens California's existing 
               prohibition against inappropriate influence of appraisers, to 
               cover all types of real property valuations and those who 
               prepare them.  This change will have the effect of protecting 
               real estate brokers that perform broker price opinions from 
               inappropriate influence, by covering them under the same rules 
               that currently intended to protect appraisers from 
               inappropriate influence.  





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              b.     The Home Valuation Code of Conduct (HVCC) is revised and 
               replaced.   The HVCC, as stated above, was an agreement reached 
               between Fannie Mae, Freddie Mac, and then- New York State 
               Attorney General Anthony Cuomo in 2008.  One of the core 
               elements of the HVCC was the concept of appraiser independence. 
                

               In its recent regulations, the FRB enacted rules intended to 
               replace the HVCC.  These rules have a similar intent as the 
               HVCC, but are written differently and accompanied by extensive 
               commentary never published in connection with the HVCC.

               California's existing laws pattern the HVCC.  This measure 
               updates California's statutes to reflect the changes made by 
               the FRB to the HVCC, and remove the inconsistency between state 
               law and the recently promulgated federal regulations.

              c.     Conflicts of interest are prohibited in connection with 
               mortgage loan origination.   In its recent regulations, the FRB 
               also enacted a provision intended to ensure that no entity 
               which prepares a real property valuation in connection with the 
               origination of a residential mortgage loan has a direct or 
               indirect interest, as defined, in the property or the 
               transaction for which the valuation is sought.  The FRB 
               included extensive commentary to describe acceptable and 
               prohibited interests.  

             In a parallel move, this measure amends California's Appraisal 
               Law to prohibit appraisers and appraisal management companies 
               from providing opinions of value of real property in connection 
               with the origination, refinancing, or modification of a 
               mortgage loan, if they have a direct or indirect interest, 
               financial or otherwise, in the property or transaction for 
               which the opinion of value was sought.  The Authors of this 
               measure are currently in negotiations with the California 
               Association of Realtors to add language to the Real Estate Law, 
               which would parallel this provision. 

              d.     Knowingly or intentionally misrepresenting the value of 
               real property is expressly prohibited.   This measure closes a 
               loophole in California's Real Estate Law, by expressly 
               prohibiting a real estate licensee from knowingly or 
               intentionally misrepresenting the value of real property.  
               California's Real Estate Law currently contains a narrow 
               prohibition against knowingly or intentionally misrepresenting 





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               the value of real property in connection with a short sale; 
               this bill broadens that prohibition to apply to all real 
               property valuations performed by real estate licensees.  A 
               similar change is not necessary to California's Appraisal Law, 
               appraisers and appraisal management companies are already 
               prohibited from knowingly or intentionally misrepresenting the 
               value of real property.  

        7. Previous legislation. In 2007, this Committee heard  SB 223  
           (Machado, Chapter 291, Statutes of 2007), which prohibited any 
           person with an interest in a real estate transaction from 
           inappropriately influencing, or attempting to inappropriately 
           influence, a real property appraiser, with the aim of convincing 
           the appraiser to alter his or her value conclusion.  

        In 2009, this Committee heard  SB 237  (Chapter 173, Statues of 2009), 
           also by the same Author, which closed a loop hole in California's 
           appraisal regulatory scheme, by defining the term "appraisal 
           management company," and requiring management companies doing 
           business in California to register with California's Office of Real 
           Estate Appraisers, and enacting a set of allowable and prohibited 
           actions for appraisal management companies and the appraisers who 
           work for them. 

        8. Arguments in Support.  The  California Government Relations 
           Subcommittee of the Appraisal Institute  supports this measure, as 
           one intended to ensure that federal and state rules align on 
           important questions of inappropriate pressure on appraisers and 
           conflicts of interest in rending real property value conclusions. 


        SUPPORT AND OPPOSITION:
        
         Support:  

        California Government Relations Subcommittee of the Appraisal 
        Institute (Sponsor) 
        California Association of Realtors 

         Opposition:  

        None received as of April 26, 2011



        Consultant:  Candace Choe





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