The Agencies believe that the Proposal adequately addressed the issue of enforceability and their supervisory process. documents in the last year, 1408 Therefore, in their appraisal regulations, the Agencies identified certain real estate-related financial transactions that do not require the services of an appraiser and that are exempt from the appraisal requirement. the Federal Register. Value opinions such as going concern value, value in use, or a special value to a specific property user may not be used as market value for federally related transactions. NCUA's general lending regulation addresses residential real estate lending by Federal credit unions, and its member business loan regulation addresses commercial real estate lending. The majority of commenters agreed with the Proposal and the expectations for determining when an institution should obtain a new appraisal or evaluation for monitoring asset quality of its portfolio and collateral risk in a particular credit. Appropriate deductions and discounts should reflect holding costs, marketing costs, and entrepreneurial profit during the sales absorption period of the completed units. 34. Appraisal shall have the meaning assigned to such term in the Servicing Agreement. This provision does not preclude an institution from withholding compensation from an appraiser or person who provided an evaluation based on a breach of contract or substandard performance of services under a contractual provision. Such policies should address the level of documentation needed for the review, given the type, risk and complexity of the transaction. on FederalRegister.gov Several commenters asked the Agencies to clarify their expectations for demonstrating compliance and offered recommendations on sound practices, including appropriate staff reporting relationships and the depth of the process and procedures for verifying and testing compliance (such as sampling procedures). In the Guidelines, this section also was reorganized to list the minimum program compliance standards and to incorporate clarifying text. 41. (1994 Guidelines) to provide further guidance to regulated financial institutions on prudent appraisal and evaluation policies, procedures and practices. For a small or rural institution or branch, it may not always be possible or practical to separate the collateral valuation program from the loan production process. an institution should monitor collateral risk on a portfolio and on an individual credit basis. Further, technical edits were incorporated in the Evaluation Content section of the Guidelines to address commenters' questions regarding the appropriate level of documentation in an evaluation. WebProposed Rule In July 2017, the agencies invited comment on a notice of proposed rulemaking (proposal or proposed rule) 1 that would amend the agencies appraisal regulations promulgated pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (Title XI).2 Specifically, the proposal would have An institution must obtain an appraisal when a loan workout involves the advancement of new monies and there is an obvious and material change in either market conditions or physical aspects of the property, or both, that threatens the adequacy of the institution's real estate collateral protection after the workout (unless another exemption applies). Updated Appraisal means an Appraisal of the Mortgaged Property or related REO Property, as the case may be, conducted subsequent to any Appraisal performed on or prior to the date of this Agreement by an Appraiser, selected by the applicable Servicer, in accordance with MAI standards, the costs of which shall be paid as a Property Advance by the Lead Securitization Note Holder or applicable Servicer. documents in the last year, 24 Dodd-Frank Act, Section 1473(r). Provide additional supporting information about the basis for a valuation. for a purchase transaction. endstream endobj startxref NCUA regulations do not contain an exemption from the appraisal requirements specific to member business loans. Appraisers are expected to be selected for individual assignments based on their competency to perform the appraisal, including knowledge of the property type and specific property market. The Guidelines confirm that BPOs and other similar valuation methods, in and of themselves, do not comply with the minimum appraisal standards in the Agencies' appraisal regulations and are not consistent with the Agencies' minimum supervisory expectations for evaluations. 55. The Agencies requested comment on all aspects of the Proposal, and specifically requested comment on: (1) The clarity of the Proposal regarding interpretations of the appraisal exemptions discussed in Appendix A; (2) the appropriateness of risk management expectations and controls in the evaluation process, including those discussed in Appendix B; and (3) the expectations in the Proposal on reviewing appraisals and evaluations. An institution may take a lien on real estate and be exempt from obtaining an appraisal if the lien on real estate is taken by the lender in an abundance of caution. The Agencies do not limit the arrangements that federally regulated institutions have with their agents, provided those arrangements do not place the agent in a conflict of interest that prevents the agent from representing the interests of the federally regulated institution. Appraisers must be appropriately certified or licensed, but this minimum credentialing requirement, although necessary, is not sufficient to determine that an appraiser is competent to perform an assignment for a particular property or geographic market. The appraiser's scope of work should be consistent with the extent of the research and analyses employed for similar property types, market conditions, and transactions. As used in Section 5.12 hereof, an Approved Third-Party Appraiser selected by the Administrative Agent shall mean any of the firms identified in the preceding sentence and any other Independent nationally recognized third-party appraisal firm identified by the Administrative Agent and consented to by the Borrower (such consent not to be unreasonably withheld or delayed). The prospective market value as stabilized reflects the property's market value as of the time the property is projected to achieve stabilized occupancy. Describe the requirements for reviewing FRB: Virginia M. Gibbs, Senior Supervisory Financial Analyst, (202) 452-2521, or T. Kirk Odegard, Manager, Policy Implementation and Effectiveness, (202) 530-6225, Division of Banking Supervision and Regulation; or Walter R. McEwen, Senior Counsel, (202) 452-3321, or Benjamin W. McDonough, Counsel, (202) 452-2036, Legal Division. Office of the Comptroller of the Currency, Treasury (OCC); Board of Governors of the Federal Reserve System (FRB); Federal Deposit Insurance Corporation (FDIC); Office of Thrift Supervision, Treasury (OTS); and National Credit Union Administration (NCUA) (collectively, the Agencies). Tract DevelopmentAs defined in the Agencies' appraisal regulations, a project of five units or more that is constructed or is to be constructed as a single development. In the absence of verification of the repayment sources, this exemption should not be used merely to reduce the cost associated with obtaining an appraisal, to minimize transaction processing time, or to offer slightly better terms to a borrower than would be otherwise offered. Further, when an institution advances funds to protect its interest in a property, such as to repair damaged property, a new appraisal or evaluation would not be required because these funds would be used to restore the damaged property to its original condition. FIRREA created civil enforcement authority to relevant agencies to impose significant enforcement penalties for violations. 66. Other commenters urged the Agencies to work with other Federal agencies and government-sponsored enterprises (such as Freddie Mac and Fannie Mae) in an effort to harmonize standards for appraisals and other collateral valuations across all channels of mortgage lending, not just lending by federally regulated institutions. NCUA's regulations do not provide an exemption from the appraisal requirements specific to loans not secured by real estate. The Proposal confirmed that an institution should make referrals to state appraiser regulatory authorities when it suspects that a state licensed or certified appraiser failed to comply with USPAP, applicable state laws, or engaged in unethical or unprofessional conduct. The person selected is capable of rendering an unbiased opinion. (See Appendix D, Glossary of Terms, for terminology used in these Guidelines.) The Agencies note that the Guidelines do not expand the categories of appraisal exemptions set forth in the Agencies' appraisal regulations. 240; and NCUA: Regulatory Alert 06-RA-04. Effective Date of the AppraisalUSPAP requires that each appraisal report specifies the effective date of the appraisal and the date of the report. If a transaction does not involve an advancement of new monies and there have been no obvious and material changes in market or property conditions, a credit union must obtain a written estimate of market value that is consistent with the standards for evaluations as discussed in these Guidelines. (1) This $50,000 minimum is referred to as the de minimis threshold level Transactions involving existing extensions of credit with significant risk to the institution. The compliance process should: Consistent with the Agencies' real estate lending regulations and guidelines,[47] Under the Agencies' appraisal regulations, the result of an Automated Valuation Model (AVM), by itself or signed by an appraiser, is not an appraisal, because a state certified or licensed appraiser must perform an appraisal in conformance with USPAP and the Agencies' minimum appraisal standards. Several commenters requested further clarification on appropriate policies and procedures for the review function. An institution's use of a borrower-ordered or borrower-provided appraisal violates the Agencies' appraisal regulations. The revisions reflect clarifying text in response to comments from institutions on the regulatory requirements for reappraisals of real estate collateral for existing credits, particularly in modification and workout situations. As Completed Market ValueRefer to the definition for Prospective Market Value. An institution may use a variety of analytical methods and technological tools for developing an evaluation, provided the institution can demonstrate that the valuation method is consistent with safe and sound banking practices and these Guidelines (see sections on Evaluation Development and Evaluation Content). and have no direct or indirect interest, financial or otherwise, in the property or the transactions. 12 CFR 701.21; 12 CFR part 723. Financial Services InstitutionThe Agencies' appraisal regulations do not contain a specific definition of the term financial services institution. The term is intended to describe entities that provide services in connection with real estate lending transactions on an ongoing basis, including loan brokers. Most commenters appreciated the additional explanation in the Proposal on the appraisal standard to analyze deductions and discounts for residential tract developments. The program should: For both appraisal and evaluation functions, an institution should maintain standards of independence as part of an effective collateral valuation program for all of its real estate lending activity. provide legal notice to the public or judicial notice to the courts. 23. offers a preview of documents scheduled to appear in the next day's [51] NCUA's appraisal regulation, 12 CFR 722, does not define business loan. A member business loan is regulated under 12 CFR 723. First, the process of obtaining an evaluation is not new since IDIs already obtain evaluations for transactions at or below the current $250,000-threshold. Third Party Arrangements. An institution's policies and procedures should specify methods for communication that ensure independence in the collateral valuation function. These costs may be incurred during the permitting, construction or selling stages of development. For example, an institution originated a 15-year term loan for $3 million and, in year 14, the outstanding principal is $2.5 million. Establish criteria for monitoring collateral values. OTS: Deborah S. Merkle, Senior Project Manager, Credit Risk, Risk Management, (202) 906-5688; or Marvin L. Shaw, Senior Attorney, Regulations and Legislation Division (202) 906-6639. Document Drafting Handbook [8] Loan Workouts or Restructurings. 1828(o). When a property is non-homogeneous, such as atypical lot sizes or property types. Transactions Involving Real Estate Notes, 9. Dodd-Frank Act, Section 1473(r). The Federal Home Loan Bank Act was passed in 1932 to stimulate home sales by releasing funds to banks for mortgages. Moreover, an institution's compliance with the regulatory requirements and consistency with supervisory expectations is considered during an Agency's on-site review of an institution's real estate lending activities. Sum of Retail SalesA mathematical calculation of the sum of the expected sales prices of several individual properties in the same development to an individual purchaser. Establish selection criteria and procedures to evaluate and monitor the ongoing performance of appraisers and persons who perform evaluations. 1.5 FIRREA: The Financial Institutions Reform, Recovery and Enforcement Act of 1989. An institution should be able to demonstrate that it has sufficient, reliable, and timely information on market trends to understand the risk associated with its lending activity. Scope of WorkAccording to USPAP Scope of Work Rule, the type and extent of research and analyses in an appraisal assignment. documents in the last year, 1479 These Guidelines pertain to all real estate-related financial transactions originated or purchased by a regulated institution or its operating subsidiary for its own portfolio or as assets held for sale, including activities of commercial and residential real estate mortgage operations, capital markets groups, and asset securitization and sales units. 44. 55 FR 5614, 5618 (February 16, 1990), 55 FR 30193, 30206 (July 25, 1990). documents in the last year, by the Food Safety and Inspection Service and the Food and Drug Administration However, these commenters provided technical comments on appraisal practices that might assist one in understanding this appraisal concept. Xxxxxx Shipbrokers, Norway, or Fearnley AS, Norway. While some commenters cautioned that the Agencies' examiners should not be overly aggressive in requiring institutions to obtain new appraisals on existing loans, a few commenters asked for clarification on what would constitute a change in market condition and when an institution should re-value collateral. are not part of the published document itself. USPAP provides various appraisal report options that an appraiser may use to present the results of appraisal assignments. If an institution outsources any part of the collateral valuation function, it should exercise appropriate due diligence in the selection of a third party. In addition, an appraisal should reflect an analysis of the property's sales history and an opinion as to the highest and best use of the property. electronic version on GPOs govinfo.gov. Both the Savings Association Insurance Fund(SAIF) and the Bank Insurance Fund (BIF) were to be administered by theFDIC, buttheFederal Deposit Insurance Reform Actof 2005consolidated the two funds. Marketing TimeAccording to USPAP Advisory Opinion 7, the time it might take to sell the property interest at the appraised market value during the period immediately after the effective date of the appraisal. However, the transaction should be supported by an appraisal that analyzes and reports appropriate deductions and discounts if any of the individual units are not completed and sold within the 12-month time frame. See USPAP, Scope of Work Rule, Advisory Opinions 28 and 29. The use of FIRREA as an enforcement tool has grown since 2015 and is expected to increase under the Biden Administration. A reader of the appraisal report should be able to understand the risk characteristics associated with the subject property and the market, including the anticipated supply of competing properties. In the Proposal, the Agencies specifically requested comment on the Agencies' expectations for reviewing appraisals and evaluations. An institution should not rely solely on validation representations provided by an AVM vendor. 46. If there are insurance or guarantee components of any particular AVM, the institution is responsible for understanding the extent and limitations of the insurance policy or guarantee, and the claim process and financial strength of the insurer. 1665 0 obj <>stream WebAppraisal Rule . Examiners also will determine whether the appraisal or evaluation complies with the Agencies' appraisal regulations and is consistent with supervisory guidance as well as the institution's policies. The scale and components of a confidence score are not standardized. Date of the Appraisal ReportAccording to USPAP, the date of the appraisal report indicates when the appraisal analysis was completed. If an evaluation is permitted under this exemption, an institution may use an existing appraisal or evaluation as long as the institution verifies and documents that the appraisal or evaluation continues to be valid. Current Appraisal With respect to any Mortgage Loan as to which the Purchaser has made an Election to Delay Foreclosure, an appraisal of the related Mortgaged Property obtained by the Purchaser at its own expense from an independent appraiser (which shall not be an affiliate of the Purchaser) acceptable to the Company as nearly contemporaneously as practicable to the time of the Purchaser's election, prepared based on the Company's customary requirements for such appraisals. (See the discussion in these Guidelines on Third Party Arrangements.). In year 14, the borrower seeks to refinance the loan at a lower interest rate and requests a loan of $2.8 million. Some commenters contend that regulated institutions should not be allowed to accept appraisals from mortgage brokers so as to ensure compliance with applicable appraisal independence standards. An institution should ensure that when a third party engages an appraiser or a person who performs an evaluation, the third party conveys to that person the intended use of the appraisal or evaluation and that the regulated institution is the client. Deficiencies will require appropriate corrective action. on About half of the savings and loans went out of business between 1986 and 1995, when the Resolution Trust Corp. completed its task of disposing of the remaining assets in order to reimburse depositors. 33. Each appraisal must contain an estimate of market value, as defined by the Agencies' appraisal regulations. An institution's appraisal and evaluation policies should establish internal controls to promote an effective appraisal and evaluation program. Improvements to the subject property or competing properties. Communicating a predetermined, expected, or qualifying estimate of value, or a loan amount or target loan-to-value ratio to an appraiser or person performing an evaluation. Real Estate-Related Financial TransactionAs defined in the Agencies' appraisal regulations, any transaction involving: Regulated InstitutionRefer to the definition of Federally Regulated Institution. requires each Agency to prescribe appropriate standards for the performance of real estate appraisals in connection with federally related transactions,[17] These regulations also specify the requirement for evaluations of real estate collateral in certain transactions that do not require an appraisal. by the Housing and Urban Development Department This section also addresses the factors that an institution should consider in determining whether to obtain an appraisal, even though an evaluation is permitted. The Agencies believe that the Proposal reaffirmed existing guidance addressing their supervisory expectations for prudent appraisal and evaluation policies, procedures, and practices. An institution should ensure that persons who validate an AVM on an ongoing basis are independent of the loan production and collection processes and have the requisite expertise and training. An institution should not invoke the abundance of caution exemption if its credit analysis reveals that the transaction would not be adequately secured by sources of repayment other than the real estate, even if the contributory value of the real estate collateral is low relative to the entire collateral pool and other repayment sources. NCUA's regulations do not provide an exemption from the appraisal requirements specific to member business loans. To ensure their independence, such lending officials, officers, or directors must abstain from any vote or approval involving loans on which they ordered, performed, or reviewed the appraisal or evaluation.[26]. Therefore, an institution should be able to demonstrate that sufficient information is available to support the current market value of the collateral and the classification of a problem real estate credit. Second, For example, one commenter suggested that the Agencies withdraw the Proposal to allow additional time to study the lessons learned from the recent stress in the residential mortgage markets. While an appraiser must comply with USPAP and establish the scope of work in an appraisal assignment, an institution is responsible for obtaining an appraisal that contains sufficient information and analysis to support its decision to engage in the transaction. TheFederal Home Loan Bank Board(FHLBB) was abolished. All real estate-related It established the Resolution Trust Corporation to close hundreds of insolvent thrifts and provided funds to pay out insurance to their depositors. set forth, among other requirements, minimum standards for the performance of real estate appraisals in connection with federally related transactions,[3] [Sen e Footnote 2] Footnote 1-- OCC : 12 CFR 34 , C and D ; FRB 208 E appendix 225 G FDIC 323 365; and OTS: 12 CFR 564, and 12 CFR 560.100, and 12 CFR 560.101 NCU. Hypothetical ConditionAs defined in USPAP, a condition that is contrary to what exists but is supposed for the purpose of analysis. The Agencies expect these transactions to meet all the underwriting requirements of the Federal insurer or guarantor, including its appraisal requirements, in order to receive the insurance or guarantee. 16. Therefore, an institution should establish criteria for determining the level and extent of research or inspection necessary to ascertain the property's actual physical condition, and the economic and market factors that should be considered in developing an evaluation. Our analysis included a review of the estimated effects of the Reorganization on the Bank, operation and expected financial performance as they related to the Bank's estimated pro forma value. The institution's credit analysis should verify and document the adequacy and reliability of these repayment sources and conclude that knowledge of the market value of the real estate on which the lien will be taken as an abundance of caution is unnecessary in making the credit decision. Some commenters did not agree that institutions should be permitted to use AVMs to develop an evaluation. The Appendix also addresses the expertise necessary to manage the use of a method or tool, which may require an institution to employ additional personnel or engage a third party. and services, go to documents in the last year, 20 Table A1: Collateral Interest Underlying Property Characteristic Provided ValueCommuter Portfolio 161 North Arlington Avenue USPAP Appraisal (Y/N) FIRREA Appraisal (Y/N) Y YNew Horizon Apartments NAP Ground Lease Maturity 3/28/2040Exhibit 2 to Attachment A Page 8 of 14Notes: (continued)3. Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA)[16] 511 (1989); 12 U.S.C. Provide criteria for ensuring that the institution uses a method or tool that produces a reliable estimate of market value that supports the institution's decision to engage in a transaction. Information about this document as published in the Federal Register. However, an institution should not use the threat of reporting a false allegation in order to influence or coerce an appraiser or a person who performs an evaluation. Such persons may include appraisers, real estate lending professionals, agricultural extension agents, or foresters. [64] 1631 et seq.). The Agencies' appraisal regulations must require, at a minimum, that real estate appraisals be performed in accordance with generally accepted uniform appraisal standards as evidenced by the appraisal standards promulgated by the Appraisal Standards Board, and that such appraisals be in writing. Exposure time is always presumed to precede the effective date of the appraisal. 1376 (2010). [46] the appraisal must reflect an appropriate scope of work that provides for credible assignment results. including: After obtaining an appraisal or evaluation, or as part of its business practice, an institution may find it necessary to obtain another appraisal or evaluation of a property and would be expected to adhere to a policy of selecting the most credible appraisal or evaluation, rather than the appraisal or evaluation that states the highest value. These procedures should include a process for qualifying an appraiser for initial placement on the list, as well as periodic monitoring of the appraiser's performance and credentials to assess whether to retain the appraiser on the list. 13. See OCC: Comptroller's Handbook, Commercial Real Estate and Construction Lending (1998) (Appendix E); FRB: 1994 Interagency Appraisal and Evaluation Guidelines (SR letter 94-55); FDIC: FIL-74-94; and OTS: 1994 Interagency Appraisal and Evaluation Guidelines (Thrift Bulletin 55a). The use of real property or interests in property as security for a loan or investment, including mortgage-backed securities. and the public comment process. According to the FDIC, as of Dec. 31, 2021, there were only 608 FDIC-insured S&Ls in the U.S., compared to 4,231 FDIC-insured commercial banks. An institution should understand the real property's as is market value and should consider the prospective market value that corresponds to the credit decision and the phase of the project being funded, if applicable. However, an institution should not directly or indirectly coerce, influence, or otherwise encourage an appraiser or a person who performs an evaluation to misstate or misrepresent the value of the property. If an institution finances construction on an individual unit basis, an appraisal of the individual units may be used if the institution can demonstrate through an independently obtained feasibility study or market analysis that all units collateralizing the loan can be constructed and sold within 12 months. apply to residential and commercial real estate transactions, excluding loans for acquisition, development, and construction of real estate. Inventory Appraisal means (a) on the Original Closing Date, the report prepared by DoveBid Valuation Services, Inc. dated October 27, 2003 and (b) thereafter, the most recent inventory appraisal conducted by an independent appraisal firm designated by Collateral Agent and reasonably acceptable to Borrower and delivered pursuant to Section 9.02 hereof. $ 2.8 million specifies the effective date of the appraisal ReportAccording to,! The Proposal adequately addressed the issue of enforceability and their supervisory process ( r ) the Agencies specifically requested on! The use of FIRREA as an enforcement tool has grown since 2015 and is expected to increase under the Administration... For reviewing appraisals and evaluations each appraisal report specifies the effective date of the requirements! Section also was reorganized to list the minimum program compliance standards and to incorporate clarifying text Proposal reaffirmed existing addressing. ( 1994 Guidelines ) to provide further guidance to regulated financial institutions on prudent appraisal the! Of documentation needed for the review, given the type, firrea appraisal rules and of. Avms to develop an evaluation secured by real estate term financial Services InstitutionThe Agencies ' appraisal regulations expected increase... 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