Discovering Fraudulent Appraisals During Foreclosure

Discovering Fraudulent Appraisals During Foreclosure
by: Nick Adama

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Without question, one of the enablers in many fraudulent mortgage lending schemes has been a crooked appraiser willing to give a property any value that the Realtor, mortgage broker, or lender wanted. The real estate bubble could not have been inflated to such a high level without the complicity of many appraisers who threw all conservatism out the window and began giving properties ridiculous values in order to help secure loans.

Now, with the housing market collapsing all around us, these appraisers have had to go back to valuing homes at more reasonable levels. However, this leaves many homeowners out in the cold, having received inflated appraisals just a few years ago and now finding out their homes were never worth that amount. What recourse, though, do these borrowers have, especially when they fall into foreclosure ?

The degree of appraisal inflation and fraud has been found to be astronomical in too many cases already. Homeowners have discovered that their home's value was inflated by up to 1,000% of its non-bubble price. The typical mortgage insured by the Federal Housing Administration (FHA) is inflated by 30-50% in order to raise prices of property on first-time home buyers and low income borrowers.

So clearly, there is a problem with a large number of appraisals, but homeowners may have trouble holding the individual appraiser or his company liable for the inflated value. However, there are a number of different claims that can be brought against an appraiser that blatantly misrepresented the actual fair market value of a home, especially if the borrowers relied on that appraisal in their decision to buy or refinance.

The most obvious claim borrowers may be able to bring against an appraiser is fraud due to the misrepresentation of the home's value. While valuing a home is sometimes just as much art as science, obviously using inappropriate comparable sales or making unreasonable adjustments to justify a higher value can be a clear case of fraud.

The only problem with this claim that homeowners may find is that the conditions may be hard to meet. For example, the borrowers will need to show all nine elements are present for a fraud claim to be made. Unfortunately, this may be easier said than done, and homeowners may want to contact an attorney to discuss the potential of a fraud case in more depth. These nine elements are the following:

1. representation of an existing fact.
2. the fact is material.
3. the representation of the fact is false.
4. the speaker knows it is false.
5. the speaker intends the listener acts on the knowledge.
6. the listener is ignorant of the falsity.
7. the listener relies on the truth of the fact.
8. the listener has a right to rely on it.
9. damages are suffered by the listener.

Far more promising as a claim against appraisers is state Unfair and Deceptive Acts and Practices (UDAP) statutes. This claim is also somewhat easier to make. The reliance on the misrepresentation does not have to be show, and some of the other conditions are also loosened. Homeowners should contact a lawyer or do some research on their state's UDAP laws, however, to find out all of the relevant information.

There are also a number of other claims that can be made against an appraiser, either in or out of foreclosure. Depending on the circumstances of the case, some of these include violations of state licensing laws, civil conspiracy, fraudulent concealment, and civil RICO claims. Again, it may be in the homeowners' best interests to speak with legal counsel or research these issues in depth before making a claim.

Far too many homeowners were given the most expensive mortgages they qualified for and their home values were inflated to justify the large loans. Appraisers played a role in these transactions, and many of the most corrupt may have engaged in acts that carry significant legal liability. Especially in cases where a lender pushes homeowners into foreclosure, doing some research on these issues and holding the appraiser accountable may be called for.

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