Obscure Federal Official Has Hatched ‘Sick Chicken’ in Housing Sector
It was the Great Depression’s bleakest year – 1933. At President Roosevelt’s urging, Congress passed the National Industrial Recovery Act, a New Deal bill that partially ceded lawmaking authority to private organizations and industry boards to develop codes of conduct that would then be enforced on citizens as binding law.
The owners of poultry producer Schechter Poultry Corp. were indicted for violating the new private business code for the poultry industry. The chicken men lawyered up, claiming the new law was a violation of the U.S. Constitution’s non-delegation doctrine. The case eventually found its way to the U.S. Supreme Court, where it came to be known to the public as the “Sick Chicken Case” – known to constitutional scholars as A.L.A. Schechter Poultry Corp. v. United States.
Under Chief Justice Charles Hughes – a Hoover appointee and former secretary of state – the court unanimously held that the act was an unconstitutional delegation of government authority. The court ruled that Congress had wrongly delegated its authority to the president, who then delegated it to another party (in this case, to a private organization for poultry producers) without enacting adequate safeguards. Justice Cardozo wrote a concurring opinion, which was joined by Justice Stone. That was 1935.
More than 50 years later, amid another crisis – the largely forgotten Savings and Loan Crisis of the late ‘80s – Congress authorized a nonprofit publisher to create a set of standards that would govern how collateral behind trillions of dollars in federally backed mortgages would be valued.
As a safeguard stemming from the Sick Chicken Case, Congress set up a new federal agency as part of the bill. It tasked the agency with putting any private standard the government sought to establish through a federal notice-and-comment or public hearing process.
The bill was enacted by the 101st Congress and signed into law by President George H.W. Bush. Even without this special safeguard, existing regulations and case law already required any version of any federally established private code to be named by its specific version or edition and to preclude any future version from being automatically recognized. The Sick Chicken Case was not far in the background.
Fast-forward to 2024. A single rogue federal official atop the obscure federal agency violates the safeguards the 101st Congress required it to follow when it authorized the agency’s creation more than three decades ago. The official has personally and single-handedly created chaos in the housing sector. He has allowed the private publisher, which brings in about $5 million annually and has ties to special interests, to continually create binding law on its own initiative that determines how the collateral for trillions in federally backed mortgages is valued. The federal official’s misfeasance has also clogged the Code of Federal Regulations with dead-letter regulations – defective rules that could never be enforced if challenged.
The obscure federal official is called James Park. He is the executive director of the tortuously named Appraisal Subcommittee of the Federal Financial Institutions Examination Council. It is part of the housing-industrial complex. Park is a former employee of the publisher, known as the Appraisal Foundation.
Today, Park and his tiny agency openly violate the aforementioned federal statute, which can be found at 12 U.S. Code § 3336. It requires “the publication of notice and receipt of written comments or the holding of public hearings with respect to any standards or requirements proposed to be established” by his agency. In case there is any confusion, the redundant “Sick Chicken”-influenced federal regulation known as 1 CFR 51.1(f) states “Incorporation by reference of a publication is limited to the edition of the publication that is approved. Future amendments or revisions of the publication are not included.”
Park is required by statute to expose versions of the publisher’s copyrighted standards he wishes to establish to a federal notice-and-comment rulemaking. He hasn’t. Not a single one. There have been 25 different versions of the fluid standards over the years. Legally, the standards don’t exist.
In a 2022 podcast with journalist Kyle Campbell of American Banker, Park conceded that the appraisal function he regulates is in constant turmoil due to the publisher’s continual changes to the appraisal standards, which automatically become binding law in many jurisdictions. Park’s recent comments indicate he is either shockingly ignorant of federal procedural laws that apply to his agency or is in on the game. There’s no room for much else.
This month, Consumer Financial Protection Bureau Director Rohit Chopra criticized the Appraisal Foundation – the private publisher and beneficiary of Park’s misfeasance – in a written report for being “an insular body controlled by a small circle, operating behind closed doors.” That’s putting it mildly.
Park’s misfeasance is not very sexy stuff but it’s concerning to administrative law scholars, like Columbia law professor Peter L. Strauss, who calls such a situation an unconstitutional “rolling incorporation by reference.” A federal agency isn’t permitted to delegate the making of binding regulations on an open-ended basis to a private organization. It’s an unlawful delegation of authority, said Strauss.
As the direct result of Park’s negligence, garbage federal regulations that unlawfully incorporate the private standards – known as the Uniform Standards of Professional Appraisal Practice – can be found across the Code of Federal Regulations, for example in 12 CFR 722.4; 12 CFR Part 225, Subpart G; 49 CFR Sec. 24.103; and 43 CFR Subtitle A, Sec. 47.60.
An official at the Director of the Federal Register’s Office (part of the National Archives and Records Administration) told appraiser-author Jeremy Bagott a couple years ago that, regrettably, the Director doesn’t have a police force and can’t police unlawful or defective regulations, or violations of the U.S. Administrative Procedure Act. Nonetheless, someone should.
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Ahh-ha, the trickle down we all have felt for years perhaps has decided to open its eyes. I would encourage John Hassler and all investigators for the California Bureau of Real Estate Appraisers be required to read this article with specific attention to the author and the obvious fallacies to which we are forced to adhere, while maintaining timely compliance with each and every change and with such compliance tied to the timing of the publication rather that the common sense and logic that dominates the human process of forming an opinion based on fact. It is my intent to read and understand the Bagott publication before responding to any inquiry regarding this comment. Hopefully those inquiring would do the same in advance. Jeremy Bagott seeks accuracy and support for his article before putting words to paper, and it is much appreciated. There is a very obscure (apparently) federal law that mandates the completion of complaint resolution by a State agency (like BREA) within one year from the date of the complaint. The State Attorney General’s office is unable to provide me with that statute, and the federal government has not responded to direct inquiry, but based on the recent history of the Board, this may be an excellent statute to expose and discuss. Just sayin….. the problems are mountainous and manipulated at every level, and this statement is not at all intended to be confrontational….. simply a disclosure of personal experience.
I have met Jeremy and he is the Real Deal.
Thank you from one old timer who has witnessed the degradation of our profession by political interests!
House appraisers are uncommonly unaware of the changes in the 80s when many appraisers were MBAs and invented programs that were easily manipulated by “businessmen” who injected their influence but we don’t use that analysis for house appraisals. While tech evolved and left their mark on our jobs, people like Park were selling out everything we learned to be objective. We all know some who give values that meet the broker’s or property owners want. They get more repeat clients and keep handing out value like candy to keep afloat.
Now we have zillow and algorithms that reduce the work we get, and they sell it because we, as a group have been identified as racist. All lies and sting operations revealing traps for appraisers! Shall we fight this? Yes! When I look at any property, especially a home, it is an exercise in Behavioral Economics that helps understanding what motivates a buyer. Now that the former AI CEO Amorin has written a sales pitch book to suggest that ARTIFICIAL intelligence is better than a trained and educated, licensed or designated appraiser and they are separating the steps like research, confirmation, analysis and conclusions have helped build Fannie and Freddy into a criminal enterprise. They have driven the house appraisers out of the profession and computer analysis does not consider nuances because every cell of your report must match what is expected based on their instructions based on misinformation, lies and appraisers are fighting for their living.
The moving target is what Jeremy tells us when he explains what goes on behind our obedient backs. Get fighting and we need a book to counter Amorin’s delusions of grandeur. Let’s speak out publicly about this unjustified abuse of professional appraisers! Let’s thank Jeremy for his work!
Very respectfully, it is clear you have not read the book. I take great care to emphasize the need for a professional appraiser and that artificial intelligence is no replacement. In the hands of a seasoned and conscientious appraiser, Ai tools can assist, but should never be used solely and without great care. They are prone to “hallucinations” much like part of the statement in your post. Professional appraisers should always verify the output.
So, where does that put the IRS requirement, new bank regulations, and Maryland Appraisal regulations: to follow USPAP when appraising? Was and is the original FIRREA regulation completed correctly? Is that what we should still be following? I may still have the original, or I can find it in the Federal Register. Thanks for the article but I need more info.
Fitz, IRS compliance with USPAP has always been dubious at best. Reluctant and unwilling back when I worked there. At least out west. The current manager (out of Laguna Niguel) is (I believe) a designated appraiser and back when I ‘knew’ him he was conciencious and competent. Highly competent in fact.
Though if one is to be purely technical, IRS never has fully complied with USPAP. They issue NOPAs without written appraisal reports ever having been written or entered in the taxpayer records. Interviews with clients for settlement purposes are always done without a written appraisal having been performed, though the reviewer has a numeric range “in mind” since the interview meetings intent is for settlement negotiation. FMV is really no longer the primary issue. A mutually acceptable compromise value is really the objective.
IRS “adopted” USPAP circa 2009. AICPA largely opposed its adoption. When TAF started calling us “valuators” is about the time IRS and AICPA “embraced” USPAP Though FIRREA has no bearing or weight when it comes to them.
Your question about original DRAFT version(s) of FIRREA is a bit open ended. As it was originally proposed pre adoption it was a great outline and law. Threshold was $25,000 NOT $250,000 as was adopted in the final version. Threshold is now $500,000. Think about that, and the median American price of a house today.
For the most part, NO ONE except a licensed or certified appraiser could use the term “value” or market value in the early days EXCEPT a broker specifically in credible pursuit of a listing.
That didn’t last long. Euphemisms were allowed to circumvent, and ultimately, now any Tom, Dick, Harry, Mary or Software designers (Like FNMA’s original Collateral Underwriter Designers) can claim to have a bigger and better spiffier thingamajig software system that not only gives better more accurate values, faster and more accurately than a real appraiser, it cures warts, most STDs and male pattern baldness as well as early onset senility. There were many articles written about it here in AB. Specifically CU before it was adopted, and others under “Snake Oil” heading.
Te problem is partially that responsible people like George Dell, or Jim Amorin offer sound advice about AVMs only being an appraiser’s TOOL in the toolbox of appraisal techniques, but users of such services bypass the appraiser part of that caution and use it in ways never intended.
Like FNMA does in its FRAUDULENT and coercive repurchase letters to lenders. They pretend a CU risk rating score is equivalent to an appraisal review. Call me sometime if you are seriously curious about the things you asked. I answer the phone after 10AM PDT. 1(714)366-9404. You can call 7 days a week up until about ten PM. Later if its really important.
Great information but I guess the bottom line is how does one go about the political quagmire to enforce the law is a relevant question. Just frustrating that these laws are on the books and get stepped on as though they are simply a nuisance. Jeremy really knows his stuff that is gold however what good is it if no actions are being taken by anyone? So, if they are breaking the law how is it possible, they can enforce things that shouldn’t even exist? This whole thing is screwed up and they need to dump everything and go back to the drawing board.
Deb, great comments. it’s going to take a miracle. Various algorithms are already skewed in favor of a propped up market. Systemic data inaccuracy which allowed for market manipulation is no longer the exception, rather a normalized process. Enter corporate investors now heavily speculating in residential housing.
Fitz, a compelling question. Checked TAF USPAP ‘previous editions’ in their store, 2018 is the oldest copy available. What does this mean if appraisers do not have access to the original USPAP version? Referencing the federal register on the original USPAP? Brilliant. Ask and ye shall receive. I just read the entire thing, takes about an hour.
https://archives.federalregister.gov/issue_slice/1990/7/5/27758-27773.pdf
‘A real estate appraisal is one of several essential components of the lending process.’ They did intend for one more USPAP version, an update, in order to have the necessary rule making compliance, to then publish the final version. They set up this process to create a revision. Then they revised again, and again, and again, and never stopped. The spirit of the law. The intent of the statute. Safe and sound banking practices. Abundance of caution. I think we’ve experienced a near complete departure from those concepts. Every ‘update’ has been a special favor hand out, chipping away at stringent rules. The human appraiser was the key person whom justified the existence of these institutions in the first place. If the full service human appraiser is no longer needed, my vote is for a total wind down and abolishment of TAF and ASB, subsequently the amc industry as well. Clearly these institutions are no longer in alignment with the original intent of their formation. All they do is argue against using appraisers, find every possible way to justify our absence and exclusion from the process.
Wow, interesting, If my memory serves me, when you review an appraisal you must review it based upon the USPAP that was in force in the year of the appraisal report.
2018 to present is 6 years, we are supposed to keep them for 5 year unless it went to court, and then more years after the conclusion of the court.
The IRS believes that in the case of fraud, there is no deadline on how far back they may go.
But if there is no copy of the USPAP for the period, how would we know if the report was in compliance?
The rule for keeping appraisals, according to the excelappraise website, was first adopted by the Foundation in 2011, so perhaps the keeping records rule is out.
HaHa.
Read the comments where Jim Amorin tap dances with aggression.
From the very end, the final page of the linked federal register; / Appraiser independence. Be sure to read that part.
Appraiser independence? In your dreams. Direct ordering? Honest reviews from licensed appraisers? The amc industry made sure that did not happen. The lenders whom use amc’s do so to avoid these requirements. The regulatory institutions manage the rules to keep the exceptions open for ‘stake holders’. The never ending alterations to rules is always in motion, so that people lose sight of the fundamentals.
The entire economy is going, every federal institution is underwater a hundred times over. First receivers of fed money has bled the entire country dry. Regulation like this came from a time thirty years ago when there was still some sense of fiduciary responsibility, people kept up the pretense that government was honest. An honest human based appraisal system for housing values in this country could destabilize the myriad of institutional investors speculating in property whom benefit from propped up markets, could result in attrition of banking and corporations instead of bolstering small business sectors and what’s left of the middle class, likely result in taxation reduction as well. The welfare warfare state along with spiraling inflation is what we get instead.
The end of this article had my imagination racing. Imagine if there was an enforcement branch with police powers. Every other department in government has one, why not this department? They would be effectively known as the corporate enforcers. Although they’d likely spend a lot of time disrupting various counsel meetings and auditing wrong doers as well. Nobody follows the rules anymore. Special favors is no longer the exception, rather the new standard. When people are less educated and financially vulnerable, the welfare is pushed at them by the same institutions and corporations whom are in place to profit from new market segments with additional servicing provision. That can not happen with legitimate checks and balances in place. Which is why the appraisal industry is slated for extinction.
Pop quiz; Name the form of government where corporations control regulatory institutions.
Baggs, you and I both know NO ONE wants to hear that the Dodd Frank Act is routinely violated.
Obeying it is the rarity, not violating it.
The FTC has ZERO interest in addressing documented, prevalent price fixing between lenders and their chosen AMCs.
No states (except surprisingly my own) appear to care if AMC’s are serving as admitted advocates for the lenders and loan officers. As critical as I have been of OREA or their successor agency BREA, I have to give credit where credit is due. BREA will absolutely pursue any credible allegations of AMC intimidation or advocacy for lenders trying to arm-twist to get deals done. KUDOS BREA!
No one else appears to give a damn. Certainly the State of Washington couldn’t care less (re KAIROS complaints about their unlicensed ‘staff appraisers’ pretending to be real appraisers, for their main client ROCKET Mtg.).
IF any federal or state regulators gave a damn, then they woud be investigating FNMAS KNOWN FRAUD in coercing lender repurchases on unsold CU scored loans over 2.5, made during COvid when rates were lower.
Loans they cant sell otherwise without huge discounts.
In 1989 FIRREA was passed to prevent a repeat of the S&L debacle. Over the 36 years since it was first drafted, if has been 100% effectively circumvented.
When the next crash precipitated by FNMA/GSEs collapse hits, Members of Congress will collectively have a case of the vapors and express total surprise and wonderment that this could ever happen.
Then they will consult the very people responsible for the collapse for advice on how to pretend to prevent future recurrence.
The three biggest threats to appraisal integrity and credibility are: TAF, REVAA, & AARO. (As annoying and insulting as it is, DEI/SJW anti-bias theatrics are only a distraction…not a real threat since that bias doesn’t actually exist in any significantly measurable numbers…if at all).
Proof of each and every allegation noted above available on request to ANY federal or state agency willing to do their job.
You are correct. Retired has been correct. Institutional investors positioned themselves, formed alliances, co opted regulatory agencies, populated them with insiders and friendly staff, and have already invested and capitalized from the waves of financial distress. ‘Racist appraisers’ was a pure distraction, likely pre planned and coordinated. The fix was in, as they say.
There may not be a housing values collapse. Rather a steady change out from individual ownership to corporate speculation has been ongoing. The structure of repurchases, repossession, and disposition offloading has already changed. The timing of avm substitution instead of human appraisers does not appear to be coincidental. Unaffordable housing may be here to say.
https://www.auction.com/blog/where-have-the-reo-investors-gone-2/
https://www.peoplesworld.org/article/wall-street-hedge-funds-are-buying-whole-neighborhoods-driving-up-home-prices/
https://www.nbcnews.com/business/real-estate/who-s-outbidding-you-tens-thousands-dollars-house-hedge-fund-n1274597
“The appraisal is one of the controls we have on markets’ overheating above their value. The reason we have appraisals is to ensure the market isn’t overbidding homes beyond what they’re worth,”
Obvious conflicts of interests. GSE’s were supposed to be in place with increased market share compared to S&L days, to prevent this sort of exposure, risk, and denial of American citizens access to affordable housing.
Baggs, Jeremy’s 4/19/24 article is REALLY concerning! Though the events it refers to took place in 2021 or 2022 (Byerman + CLEAR contract). We are seeing the results today.
Getting beyond the recriminations, how do we deal with the results today? For my part, I will decry and attempt to expose every single false racism allegation I learn about.
I urge ANY appraiser so accused to consider counter suiing their accusers.
Know you are busy, and thank you very much for taking some time to post here again. Yes, Mr Bagott gets better and better with each passing article. You are referring to the article titled; IN WHITE HOUSE CRUSADE TO MUZZLE APPRAISERS, ‘FOLLOW THE MONEY’ / People can subscribe to his articles in this below web link. Not all of his articles get posted on this website, but they are all well worth reading.
https://mailchi.mp/2a23230963ef/jeremy-bagott
It takes time for people to get their minds around why some other people just can not stop talking about; liberty, justice, and the American way. Accountability and justice simply can not coexist with acceptable balance alongside a bureaucratic state ran by the very corporations the regulatory institutions were installed to protect the people from in the first place. That’s called the co opting of regulatory institutions and people therein. Or a more common vernacular; fox guarding the hen house.
The best we hope for are good intentioned people like yourself to pull us out of the fire if our number is called, and to stay as far away from the corruption as possible. Take heart; The truth is like a lion. Set it free, and it will defend itself.
At some point there will be enough people better educated on the matter, the illusion of control will no longer seem quite as tangible, there will be not much left to plunder; The people will demand corrections. Then we’ll start over with new ideas, and new counters to the next scheming plans. There is nothing new happening here, except the specific context, specific subject matter, and specific players in the game may have changed. Always, every time; back to the basics.
Reminds me of Bastiat on the concept of ‘Plunder’. Image attached. What’s new? So we go through the same motions, defend the same principals. Be wary of suggestions for changes to our fundamental ideals and way of life, the very basics of our governing and management structures; That’s where the real dangers lie.
https://appraisersblogs.com/the-appraisal-institute-2-counter-the-flawed-appraiser-bias-narrative/#comment-40935
This is a quite interesting take on these sorts of matters. There is that same familiar word; ‘Stake holders’.
https://mailchi.mp/34125ebc7a03/supersecretglobalistgroup-15691599
Jeremy, you know how high a regard I hold for you personally, and your opinions.
Having said that, I think you were remiss in the allegation against ASC generally, and Jim Park in particular. I wanted to send a separate rebuttal letter to AB last week but opted instead to reread and recheck the above article first. This will have to serve as my response.
I read each link listed and specifically rechecked the four Code of Federal Regulations referenced in your second to last paragraph.
Without exception, each was published in the Federal Register which meets the public exposure/publishing requirements for all federal law or rule changes. “[60 FR 51894preview citation details, Oct. 4, 1995, as amended at 85 FR 23917, Apr. 30, 2020] This linked item shows 85 FR (FR 23917 = Federal Register issue and location it can be found at). Each linked citation you showed has an “FR” reference number.
Beyond this, (& I could be misunderstanding the process here), it’s my understanding that ASC has next to no authority to make changes. They can propose that other agencies adopt or modify things, but I dont believe they themselves can dictate changes.
Even with respect to state enforcement, they have limited enforcement capability. The only real hammer in their arsenal is ‘decertification’ of a state’s licensing recognition. In 33 years it’s never happened. Lord knows I certainly tried to get them to decertify California’s old OREA as mismanaged under Martin and Seators. Ultimately, I think letters to the State Auditor may have helped resolve issues there.
IF Jim Park had the authority you attribute to him, I would hope that he would have caused FIRREA to be revised to where ALL authority for regulation and management is vested in ONE FEDERAL AGENCY to stop the musical chairs style, Heinz 57 Flavors variety of enforcement between HUD, DOJ, FHA, VA, GSEs and non-uniform state enforcement.
Just as the FBI and DOJ (apparently) cannot be trusted with proper FISA compliance, neither can individual states be trusted to enforce USPAP as intended under FIRREA. Some states simply can’t resist the temptation to accept AARO lobbying for circumvention of state legislatures as an acceptable approach in enforcing USPAP.
Too many states still have NO APPRAISERS among their USPAP compliance investigators! Others ignore USPAP SR3/4 and instead accept AARO’s recommended “Investigatory” alternative, exempting themselves from USPAP compliance through use of sophistry, and non-legislated “rule changes”.
At a minimum, if Jim Park had that kind of authority I’d hope he’d put an end to FNMAs OUTRIGHT FRAUD in their quota driven repurchase demands of banks, and accompanying “TIP” letters that Lyle Radke DISHONESTLY pretends are not complaints. (Go ahead FNMA or Radke, I’m just waiting for an excuse to to subpoena the internal backup for all the case complaints I’ve had occasion to help appraisers get cleared by their state enforcement agencies.
As an aside, while Im veering off topic into GSE FRAUD; NO LENDER IN THE COUNTRY SHOULD ACCEPT OR AQUIESCE TO A REPURCHASE LETTER WITHOUT DEMANDING BINDING ARBITRATION. My inside sources at FNMA tell me FNMA has never once won such a case.
Anyway Jeremy, I think you were overly harsh on ASC and Jim Park. I’ve spoken with him many times since the old PACE PRO opposition days (circa 2015), and he has never mislead me or lied to me. We don’t always agree, but I’ve always believed he has the integrity and hoped-for fair treatment of professional appraisers uppermost in his mind.
Even when interest balancing is forced on him by the other dictates of his position. In the long run, only ASC and Jim Park, and Mr. Chopra at CFPB have shown any inkling of fair treatment of appraisers being an important concern.
I feel like I’m a day late and a dollar short with all that you guys are talking about. I don’t understand many things such as folks knocking USPAP, we need a standard of reporting right? I get that it didn’t need to be updated every double year and it was done so as a cash cow, but there has to be a basis that we all can rely on. What are the others and why are some being them better than USPAP? Why aren’t there any actual regulations to help keep spares safe and only regulations to chop us in half? Feeling lost
Paul we DO need ‘some standards’. Those adopted right out of the gate when FIRREA was first implemented were just fine. During the first few years very few had any trouble effectively memorizing them. Later, common sense definitions were word-smithed to the point very few understood the nuances anymore. Great justification for writing non binding advice and observations for those of us (apparently) incapable of comprehending English that we spoke and read our whole lives.
Since that time, TAF has massaged and manipulated them to the detriment of the profession in favor of MISMO, disreputable higher volume appraisal firms, and software hucksters who benefit from weakened standards (IE SOW rule replacing Departure Provision).
Accomodations specifically made for bifurcated hybrids and other dubious products.
Not to mention bastardization (to Valuator) of the term appraiser itself so that the members of AICPA would pay lip service and not oppose USPAP. Traditionally valuators were (are) business valuators. Not real estate appraisers. Some over at AI imagined they saw opportunities in the BV market – not realizing the fundamentals are 180 degrees different, despite use of the same terms for approaches.(circa 2010-2011+-)